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Bob Ferguson

AGO 1953 No. 1 -
Attorney General Don Eastvold


 (1) A county may not adopt a uniform building code by incorporating by reference such code in its publication of notice of hearing thereon.

(2) An ordinance by the county commissioners attempting to enact such a building code by incorporation by reference would not be enforceable even though the penal provisions were omitted from such ordinance.

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                                                                    April 7, 1953 

Honorable Roger L. Olson
Prosecuting Attorney
Franklin County
Pasco, Washington                                                                                                                  Cite as:  AGO 53-55 No. 1

 Dear Sir:

             This will acknowledge receipt of your letter dated March 13, 1953, in which you inquire:

             "(1) Can a County adopt a uniform building code (a rather voluminous work) by incorporating by reference such code and thereby not have to publish the uniform building code?

             "(2) If the answer to Question 1 is no, could the County adopt such a uniform building code without having to publish the entire code in the Notice of Hearing if they were to leave off any penal provisions?

             "(3) If the answer to Question 2 is yes, could such an ordinance or resolution be punishable as a misdemeanor under RCW 36.43.040?"

             It is our conclusion that all three questions must be answered in the negative.

              [[Orig. Op. Page 2]]


             The authority of county commissioners to adopt building codes is found in RCW 36.43, as derived from chapter 204, Laws of 1943.  This statute authorizes the county commissioners to "* * * adopt standard building codes and standard fire regulations to be applied within their respective jurisdictions."  Other sections of the same statute define the area to which applicable, provide for appointment of inspectors, and for enforcement, and make a violation constitute a misdemeanor.

             The cited statute is silent upon the procedure required to adopt such a code or regulation.  There is no requirement for notice, hearing, or publication.

             Article XI, section 11, of the Washington State Constitution gives the county authority to enact police regulations in this language:

             "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 is implemented by RCW 36.32.120 subsection (7) as derived from section 2673-11 of the Code of 1881, as last amended by section 1, chapter 61, Laws of 1947.  This section gives the boards of county commissioners authority to

             "* * *

             "(7) Make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law, and provide that any violation of such regulations, ordinances, or resolutions shall constitute a misdemeanor:  Provided, That no such regulation 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.  The notice must set out a copy of the proposed regulations and the day, hour, and place of hearing.  The notice must be given by publication in the newspaper in which legal notices of the county are printed;"

              [[Orig. Op. Page 3]]

            RCW 36.43.040, which is the last section of the building code chapter, supra, reads as follows:

             "Any person violating the provisions of any building code or any fire regulation lawfully adopted by any board of county commissioners shall be guilty of a misdemeanor."

             This chapter of the code was enacted in 1943.  That portion of RCW 36.32.120 subsection (7), supra, which requires notice, hearing and publication was enacted in 1947.  That building codes and fire regulations are police regulations has long been recognized.  Since the 1943 act is silent as to procedure and the 1947 amendment cited, supra, expressly provides that no such [police] regulations shall be effective unless notice, hearing and publication as therein prescribed have been accomplished, we conclude that incorporation by reference of the proposed building code is not permissible under our statutes.  Nor does the fact that cities are permitted to adopt codes by reference under RCW 35.21.180 authorize counties to do so in the absence of specific statutory authority.

             We further conclude that to publish the proposed building code by reference would be equally ineffective if the penal provisions were omitted.  RCW 36.32.120 subsection (7), supra, provides thatno such regulation shall be effective unless, among other things, the notice sets out the copy of the proposed regulations.  RCW 36.43.040,supra, provides that any violation of the building codelawfully adopted shall constitute a misdemeanor.

             In State v. Hoffman, 110 Wash. 82, at 84, the court discusses the rule that penal statutes are to be strictly construed as follows:

             "* * * Unless the language of the statute makes the conduct of the appellant criminal, there can be no recourse to the intention of the act to establish its interpretation.  Though conduct may be within the reason of an act and the mischief to be remedied thereby, yet it cannot be punished as a crime if not so denominated by the statute.  Lewis, Sutherland's Statutory Construction (2d ed.), § 520."

             This quotation was cited with approval in the recent cases of State v. Hoffman, 30 Wn. (2d) 475 and State v. Basden, 31 Wn. (2d) 63.

              [[Orig. Op. Page 4]]

            It is our conclusion that until such time as the legislature sees fit to give counties the same specific authority to adopt codes by reference as cities now enjoy, they must comply with the statutory requirement of setting out a complete copy of the proposed regulation in the published notice of hearing.

 Very truly yours,

Attorney General

Assistant Attorney General