AGO 1964 No. 91 - Mar 13 1964
COUNTIES ‑- LEGISLATIVE POWER ‑- COUNTY COMMISSIONERS ‑- INITIATIVE AND REFERENDUM ‑- NO CONSTITUTIONAL OR STATUTORY PROVISION PROVIDING FOR DIRECT LEGISLATION BY COUNTY RESIDENTS.
(1) Under existing state law the residents of a county do not have the power to enact county-wide legislation by initiative.
(2) The residents of a county do not have the power of referendum under existing state law in regard to ordinances or regulations duly enacted by a board of county commissioners.
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March 13, 1964
Honorable Charles O. Carroll
County City Building
Seattle 4, Washington
Cite as: AGO 63-64 No. 91
By letter dated February 21, 1964, you have requested an opinion of this office on certain questions including two which we paraphrase as follows:
(1) Under Washington law do the residents of a county have the power to enact county-wide legislation by Initiative?
(2) Do the residents of a county have the power of Referendum in regard to ordinances or resolutions duly enacted by a board of county commissioners?
We answer both questions in the negative for the reasons set forth in our analysis. This disposition of these questions renders consideration of your remaining questions (which were predicated upon an affirmative answer to the above) unnecessary.
The inquiry to be made in regard to your questions is simply this: In what body do we find the legislative powers of government at the county level?
Except in certain instances, such as the well-known New England Town Meeting, the legislative powers in our nation at all levels of government are vested in representative bodies rather than being exercised [[Orig. Op. Page 2]] directly by the people. This is true today without qualification at the level of our national government where, under the United States Constitution, all legislative powers are vested in the Congress of the United States. It is also true without qualification at the state government level in more than half of the states. In some twenty-one states, however, including our own State of Washington, a form of direct legislation by the people coexistent with representative legislation presently is authorized.
Where this phenomenon exists, it is in every case a result of amendment to the particular state constitution. In our own case, the key amendment was adopted in 1912, as the 7th Amendment to the Washington State Constitution.
The framers of our state constitution in 1889 recognized that "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, . . ." Article I, § 1. However they did not initially provide for any form of direct legislation by the people. The legislative powers were vested in the Senate and House of Representatives called the legislature of the State of Washington. See, Article II, § 1, prior to the 7th Amendment.
To rectify this situation, the legislature in 1911 passed an act submitting to the people a proposed constitutional amendment (§ 1, p. 136, Laws of 1911). It was this proposal which was adopted in 1912 as the 7th Amendment. By this amendment the legislative authority was again vested in the legislature but the people reserved to themselves the powers of initiative and referendum. Article II, § 1, Amendment 7, reads in pertinent part as follows:
"The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature.
"(a) Initiative: The first power reserved by the people is the initiative. . . .
"(b) Referendum. The second power reserved by [[Orig. Op. Page 3]] the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted. . . ." (Emphasis supplied.)
This constitutional amendment clearly established the power of initiative and referendum in the people of the state of Washington with regard to state‑wide [[statewide]]legislation. State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 Pac. 92 (1916). However, in an informal opinion dated November 24, 1941, a copy of which is enclosed, this office concluded that the aforesaid constitutional amendment has no application to the enactment of legislation at the county level. This was because the language of the constitutional provision is couched exclusively in terms of state measures and the state legislature.
In other words, therefore, under Article II, § 1, Amendment 7,supra, the people of the state of Washington may enact laws in the same manner as our state legislature. This is the power of initiative. They also may reject at the polls any act, item, section or part of any bill or act or law passed by the state legislature ". . . except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, . . ."
However, this constitutional provision does not give the people any power to enact county laws‑-in the form of a county ordinance or resolution. Nor does it give them the power to reject at the polls an ordinance or resolution duly enacted by a board of county commissioners.
The legislative function at the county level of government is vested in the board of county commissioners by virtue of RCW 36.32.120, which provides in material part:
"The several boards of county commissioners shall:
". . .
"(7) Make and enforce, by appropriate [[Orig. Op. Page 4]] resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law, and within the unincorporated area of the county may adopt by reference Washington state statutes and recognized codes and/or compilations printed in book form relating to the construction of buildings, the installation of plumbing, the installation of electric wiring, health, or other subjects, and may adopt such codes and/or compilations or portions thereof, together with amendments thereto, or additions thereto: Provided, . . . and shall provide that any violation of such regulations, ordinances, codes, compilations, and/or statutes or resolutions shall constitute a misdemeanor: Provided further, That no such regulation, code, compilation, and/or statute shall be effective unless before its adoption, a public hearing has been held thereon by the board of county commissioners of which at least ten days' notice has been given. . . ."
Thorough examination of all statutes relating to counties, as codified in Title 36 RCW, reveals no other statute relating to the enactment or popular review of county legislation with one very limited exception, namely, RCW 36.13.080, which relates to referendum only upon the subject of reclassification of counties. Thus there simply is no general provision either in the constitution or the statutes of our state for the exercise of initiative or referendum powers by the people at the county level of government.
This is not to say that initiative and referendum powers presently exist only at the state level of government. The legislature, we note, has made special provision therefor in certain types of cities. See, for example, RCW 35.17.240 ‑ 35.17.360, which authorize initiative and referendum proceedings in those cities having the commission form of government; also, RCW 35.22.200 expressly authorizing cities of the first class, in their charters, to "provide for direct legislation by the people through the initiative and referendum upon any matter within the scope of the powers, functions, or duties of the city."
Without question, similar legislation could be enacted by the legislature in regard to counties. A county, like a city, is a form of municipal corporation and has such powers as have been expressly granted by the legislature or as are to be necessarily implied therefrom.Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938), and cases cited therein. Accordingly, those powers of initiative and [[Orig. Op. Page 5]] referendum which have been granted to certain types of cities, as above noted, could also be granted to counties. But until and unless such legislation is enacted, we must conclude that in the absence thereof all legislative powers at the county level are vested exclusively in the boards of county commissioners (except for the limited provisions of RCW 36.13.080,supra).
Our negative answer to your two questions, as above paraphrased, renders consideration of the remaining questions posed in your letter unnecessary. These further questions were predicated upon an affirmative answer to your first two questions and involved matters of mechanics or procedure if initiative or referendum powers were deemed to exist at the county level under present state law.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
PHILIP H. AUSTIN
Assistant Attorney General