AGO 1957 No. 118 - Sep 12 1957
COUNTIES ‑- CITIES AND TOWNS --HEALTH ‑- AIR POLLUTION ‑- AIR POLLUTION CONTROL DISTRICTS --NUISANCE --CONSTITUTIONAL LAW ‑- TAXATION ‑- FORTY MILL LIMITATION
1. Chapter 232, Laws of 1957, chapter 70.94 RCW, requires that an entire county be included within an air pollution control district but does not require that two or more cities, exclusive of any unincorporated county area, be contiguous.
2. Chapter 232, Laws of 1957, chapter 70.94 RCW, requires each city, town or county to conduct tests and surveys prior to the enactment of air pollution control measures for the formation of an air pollution control district.
3. Chapter 70.94 RCW, chapter 232, Laws of 1957, does not require that each component city, town or county of an air pollution control district separately enact air pollution control measures but does provide that the district as a governmental unit may promulgate rules and regulations for this purpose.
4. It is not necessary that a city, town or county follow the procedure established in chapter 232, Laws of 1957, chapter 70.94 RCW, in order to enact or enforce air pollution control measures.
5. Amendment 17 to the Washington State Constitution requires that any tax by a city, town, county or district in excess of the 40-mill limitation must be [[Orig. Op. Page 2]]submitted to the electorate each year that such governmental unit seeks to levy the additional tax.
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September 12, 1957
Honorable Bernard Bucove, M.D.
State Director of Health
General Administration Building
Olympia, Washington Cite as: AGO 57-58 No. 118
You have requested the opinion of this office on several questions involving an interpretation of chapter 232, Laws of 1957, codified as chapter 70.94 RCW, relating to air pollution control districts. We paraphrase your questions as follows:
(1) Is it necessary that an entire county be included in the formation of an air pollution control district, or may only a portion of a county be so included?
(2) May two or more cities or towns, exclusive of any unincorporated county area, which are not contiguous form an air pollution control district?
(3) Do § 5 (RCW 70.94.050) and § 6 (RCW 70.94.060) make it necessary for each individual city, town or county in a particular area to individually participate in and conduct tests and surveys to determine the degree of purity of the air within its jurisdiction?
(4) In the event an air pollution district is formed, is it necessary for each individual city, town or county to adopt by ordinance or resolution the air pollution control measures which would in turn be carried out by the district?
(5) Is it necessary that a city, town or county follow the procedure established by chapter 232, Laws of 1957, in order to enact or enforce air pollution control measures, or may a governmental unit enact and/or enforce ordinances or resolutions, such as nuisance or zoning legislation, without reference to chapter 232?
[[Orig. Op. Page 3]]
(6) Section 9 (RCW 70.94.090) of the act apparently intends to provide for the levying of a tax over a period of years to carry out a comprehensive plan of air pollution control. Assuming that this would involve a tax in excess of the 40-mill limit, is it possible to levy such tax for more than one year or is an election necessary each year?
Our answers to the above questions appear under the corresponding numbers in the analysis below.
(1) Section 6, chapter 232, Laws of 1957, RCW 70.94.060, provides that:
"Any city, town, or county may, pursuant to ordinance or resolution adopted after hearing as provided in Sec. 5, join with any other city, town, county, or combination thereof in the formation of a district for the control of air pollution."
Section 3 (c) defines the term "district" as follows:
"'District' as used in this chapter means any Air Pollution Control District comprised of two or more cities, towns, and, or, counties which have entered into agreements for the control of air pollution."
A county is a governmental unit and a political sub‑division [[subdivision]]of the state. Amendment 21 to the Washington State Constitution. The boundaries of the several counties are clearly defined in chapter 36.04 RCW. It must therefore be assumed that use of the word "county" implies the whole of the territory included in such unit and not a part thereof.
It is a well-established and oft-repeated rule that where the provisions of the statute are clear and free of ambiguity there is no reason for the application of such rules of statutory construction and that such statute must be interpreted according to the plain and ordinary meaning of the language used. Sandona v. Cle Elum, 37 Wn. (2d) 831; See Opinions of Attorney General, 1947-48, page 92c [[to James E. A. Burns, Disabled American Veterans on April 6, 1948]].
In the present instance in view of the fact that the legislature has consistently used the term "county" without any qualification and not the words "a portion thereof" we must conclude that an entire county must be included in an air pollution control district and that such district may not be formed encompassing only part of a county.
[[Orig. Op. Page 4]]
(2) Section 6 (RCW 70.94.060), supra, provides that any city, town or county may join withany other city, town, county or combination thereof in the formation of a district for the control of air pollution.
Again the wording of the statute is clear and unambiguous. There is no requirement that any of the governmental units referred to in § 6 be contiguous, although the absence of such a requirement would appear to be occasioned by poor legislative draftsmanship, or an oversight on the part of the legislature. As a practical matter, however, we are unable to conceive of any situation in which cities or towns or counties which were not contiguous would be faced with the same pollution problem from a common source.
Subject to this qualification we conclude that it is not necessary that the cities, towns or counties forming an air pollution district be contiguous.
(3) Section 5, chapter 232, Laws of 1957, RCW 70.94.050, authorizes any city, town or county to conduct tests and surveys to determine the degree of purity of the air within its jurisdiction. Only after the tests and surveys indicate to the governing body of such city, town or county, that air pollution exists or is likely to occur within its jurisdiction may the governing body conduct a hearing and determine that the public health and welfare requires the control of air pollution within its jurisdiction. It is not until this procedure has been followed, and this determination of necessity has been made, that a city, town or county may adopt or enforce ordinances or resolutions for the control and prevention of air pollution within its jurisdiction. It is also noted that the requirements of § 5 must be complied with prior to the formation of an air pollution control district under § 6.
It is therefore our conclusion that the plain wording of the statute requires that each governmental unit, individually, take each of the preliminary steps outlined in § 5 of the law prior to the adoption of the ordinances or resolutions for the control of air pollution. Likewise, each of these preliminary steps must be individually taken prior to the formation of a district under § 6.
(4) Chapter 232, Laws of 1957 apparently provides for two methods whereby air pollution may be controlled or prevented.
First, cities, towns or counties may individually undertake the task of controlling or preventing air pollution. Section 14 of the law (RCW 70.94.140) provides as follows:
[[Orig. Op. Page 5]]
"Any city, town, county or district may for the purpose of controlling and preventing air pollution:
"(a) Advise, consult, cooperate and contract with other agencies and educational institutions of the state, political subdivisions, industries, other states, the federal government, or other affected groups and individuals.
"(b) Encourage and conduct studies, investigations and research relating to air pollution, its causes, control and prevention.
"(c) Receive monies from any source and use and disburse such funds for the study, dissemination of educational information, and control and prevention of air pollution.
"(d) Develop a comprehensive plan and program for the prevention and control of all new and existing sources of air pollution within its jurisdiction."
Likewise, §§ 5 (RCW 70.94.050) and 15 (RCW 70.94.150) of the act empower a city, town or county to enact ordinances or resolutions for the control or prevention of air pollution.
Second, in addition to the powers conferred on individual cities, towns and counties, the Legislature has provided for the formation of air pollution control districts (See § 6, supra). It is anticipated, as provided in § 15, that a district when formed will, if necessary, and after a public hearing, promulgate rules and regulations for the control and prevention of air pollution. These rules and regulations, when adopted, will have the force and effect of a state statute. Thus § 16 (RCW 70.94.160) provides in part:
". . . Resolutions of a county and valid rules and regulations of a district pertaining to the control or prevention of air pollution shall have within the jurisdiction of the county or district the force and effect of a state statute and any violation of either . . . may be enjoined in a civil action brought in the name of the state of Washington by the prosecuting attorney of the county in which the violation occurred."
The rules and regulations of a district are paramount to any ordinances or resolutions of a city, town or county except as to any provisions of those enactments pertaining to nuisance. Section 23 (RCW 70.94.230) provides in part as follows:
[[Orig. Op. Page 6]]
"The rules and regulations hereafter adopted by a district under the provisions of this chapter shall supersede the existing rules, regulations, resolutions and ordinances of any of the component bodies forming said district in all matters relating to the control and enforcement of air pollution as contemplated by this act: Provided, however, That nothing herein shall be construed to supersede any local county, or city ordinance or resolution, or any provision of the statutory or common law pertaining to nuisance; . . ."
Accordingly, it is our opinion that a district when formed will utilize its power to promulgate rules and regulations and thus it would not be necessary for the component governmental units to separately enact air pollution control ordinances or resolutions.
(5) Section 23, Laws of 1957, supra, specifically provides that chapter 232 is not intended to supplant any state or local enactment pertaining to nuisance. In addition, it does not appear that there is any intent to supersede local ordinances or resolutions of any nature, whether now extant or enacted in the future, until such time as an air pollution district is formed and the board promulgates rules and regulations in accordance with chapter 232.
Accordingly, until such time as a district is formed, and rules and regulations have been established, a local governmental unit may enact appropriate ordinances or resolutions without reference to chapter 232 under the broad grant of power contained in Article XI, § 11 of the Washington State Constitution as follows:
"Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."
This constitutional provision has been held to be "a direct delegation of police power as ample within its limits as that possessed by the legislature itself," requiring "no legislative sanction for its exercise so long as the subject matter is local and the regulation reasonable and consistent with the general laws." Evergreen Trailways, Inc. v. Renton, 38 Wn. (2d) 82; Detamore v. Hindley, 83 Wash. 322.
[[Orig. Op. Page 7]]
This conclusion is in accordance with previous opinions of this office to the effect that a general statute does not prevent a local governmental unit from legislating on the same subjects as long as the local unit does not attempt to make unlawful something expressly permitted by statute or attempt to make lawful an act condemned by the general law. See Opinions of the Attorney General, 1931-32, page 358 and cases therein cited.
(6) Amendment 17 to the Washington State Constitution provides that the aggregate of all tax levies upon real and personal property shall not in any year exceed 40 mills on the dollar of assessed valuation. The 40-mill limitation may be exceeded only
"(a) By any taxing district when specifically authorized so to do by a majority of at least three‑fifths of the electors thereof voting on the proposition to levy such additional tax submitted not more than twelve months prior to the date on which the proposed levy is to be made and not oftener than twice in such twelve month period, either at a special election or at the regular election of such taxing district, at which election the number of persons voting on the proposition shall constitute not less than forty per centum of the total number of votes cast in such taxing district at the last preceding general election;" (Washington State Constitution, Amendment 17.) (Emphasis supplied.)
The constitution of our state thus limits the imposition of a levy over the 40-mill limitation to one approved not more than twelve months prior to the date on which the proposed levy is to be made. Accordingly, it would not be possible for a taxing district to levy a tax for a period longer than one year and remain within the constitutional restrictions placed on levies in excess of forty mills.
We therefore conclude that any tax by a city, town, county or district in excess of the 40-mill limitation must be submitted to the electorate each year that such governmental unit seeks to levy the additional tax.
We trust that the foregoing analysis will be helpful to you.
Very truly yours,
JOHN J. O'CONNELL
OLIVER J. NEIBEL, JR.
Assistant Attorney General