HERD DISTRICTS AND TERRITORY IN WHICH LIVESTOCK MAY RUN AT LARGE

HERD DISTRICTS AND TERRITORY IN WHICH LIVESTOCK MAY RUN AT LARGE.

Validity of orders establishing stock restricted areas pursuant to 1911 statute not impaired by 1937 statute amending procedure provisions.

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                                                                  January 5, 1953

Honorable John N. Leavitt
Prosecuting Attorney
Okanogan County
Okanogan, Washington                                                                                                              Cite as:  AGO 51-53 No. 451

 Dear Sir:

             Certain herd districts were established in Okanogan County pursuant to the provisions of chapter 230, Laws of 1907, and chapter 25, Laws of 1911, which prohibited livestock from running at large except in certain cases.  Those statutes were amended by chapter 40, Laws of 1937, one of the provisions of which reads as follows:

             "Section 3068.  The Board of County Commissioners of any county of this state shall have the power to designate by an order made and published, as provided in section 3070, certain territory as stock restricted area within such county in which it shall be unlawful to permit livestock of any kind to run at large:  * * *All territory not so designated shall be range area in which it shall be lawful to permit livestock to run at large."  (Emphasis supplied)

             On the foregoing statement of facts in your letter of December 3, 1952, you request an opinion whether the underlined portion of the above quoted statutory provision "impliedly invalidates 'herd districts' formed under the 1911 laws inasmuch as such former districts were formed under a somewhat different procedure than that specified in the 1937 law."

              [[Orig. Op. Page 2]]

            It is the opinion of this office that your question should be answered in the negative.

                                                                      ANALYSIS

             Chapter 91, Laws of 1905 which prohibited livestock from running at large in any county, except in certain cases, was repealed by chapter 230, Laws of 1907, which in turn was repealed by chapter 25, Laws of 1911.  Chapter 40, Laws of 1937, amended chapter 25, Laws of 1911.

             It was a prerequisite, under chapter 25, Laws of 1911, to the formation of stock restricted areas that ten residents within a proposed district file with the county auditor a petition therefor.  At its next meeting the board of county commissioners fixed a time and place when a hearing would be had upon the petition, the hearing to be within twenty to ninety days from the filing of the petition.  Notice of time of hearing was by publication in a newspaper within such territory for three successive weeks before the day fixed for the hearing on the petition; if there were not a newspaper of general circulation in such territory, then by posting such notice in three public places in such territory at least twenty days before the day of hearing.  If, after a public hearing, the petition was granted the board of county commissioners entered upon its records an appropriate order and published same in a newspaper for four successive weeks or by posting it in three public places in such territory for four successive weeks.

             The procedure pursuant to chapter 25, Laws of 1911 for formation of stock restricted areas was changed by chapter 40, Laws of 1937, under which a petition by ten residents is not now required.  If a board of county commissioners deemed it advisable to establish a stock restricted area or to change the boundaries of any stock restricted area it was authorized to enter an order fixing a time and place of a hearing on the question and was required to give notice of same by publication once a week for two successive weeks in a newspaper of general circulation within the county.  Within thirty days after such hearing the board of commissioners is required to enter in the county records an order describing the area established and publish it in a newspaper of general circulation in the county at least once a week for four successive weeks.

             The present law as to stock restricted areas is RCW 16.24.010 to 16.24.080 inclusive, and so far as pertinent here reads as follows:

              [[Orig. Op. Page 3]]

            "16.24.010 Restricted areas authorized.  The board of county commissioners of any county, other than counties having township organization, may designate certain territory within the county, of not less than two square miles in extent, as a stock restricted area.  All territory not so designated shall be range area in which livestock may run at large.  [1937 c 40 § 1, 1911 c 25 § 1; RRS § 3068.]

             "16.24.020 Hearing‑-Notice.  The county commissioners may make an order fixing a time and place of a hearing on the question of establishing an area, and shall publish notice thereof once a week for two successive weeks in a newspaper of general circulation in the county.  At the hearing or adjournment thereof, all interested persons shall be heard.  [1937 c 40 § 2, last am'd 1911 c 25 § 2; RRS § 3069]

             "16.24.030 Order establishing area‑-Publication.  Within thirty days after such hearing the county commissioners shall make an order describing the area established, and enter it in the county records and publish it in a newspaper of general circulation in the county at least once a week for four successive weeks.  [1937 c 40 § 3, last am'ds 1911 c 25 § 3; RRS § 3070]

             "* * *

             "16.24.050 Change of boundaries.  The county commissioners may change the boundaries of a stock restricted area after a hearing called and conducted in the same manner as in establishing the area.  Within thirty days after the hearing the commissioners shall make an order describing the change and enter and publish the order in the same manner as the order establishing the area.  [1937 c 40 § 4; 1923 c 93 § 1; RRS § 3070-1]

              [[Orig. Op. Page 4]]

            "* * *"

             Strictly speaking, the amendatory 1937 statute may not be regarded as an independent statute.  True, the 1911 statute in its old form is superseded by the 1937 amendatory statute, the amendatory sections taking the place of the original sections of the 1911 statute.  The orders of the board of county commissioners which established restricted stock areas pursuant to procedural provisions of the 1911 statute were not invalidated by the 1937 statute which amended those procedural provisions.  Amended statutes are to be read, as to all subsequent occurrences, as if they had originally been in the amended form.

             The change by the 1937 statute in the procedure prescribed by the 1911 statute for the formation of herd districts should be given a prospective operation.  The general rule, subject to certain exceptions not pertinent to the question before us, is that statutes or amendments are to be given a prospective operation.  A law when amended may be effective in its original form as to past transactions and occurrences and effective in its amended form as to future occurrences or transactions.

 Very truly yours,
SMITH TROY
Attorney General