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AGLO 1971 No. 26 - Feb 17 1971
Attorney General Slade Gorton

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                                                                February 17, 1971
Honorable Alan Bluechel
State Representative, First District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 26 (not official)
Dear Sir:
            By letter previously acknowledged you requested an opinion of this office on the constitutionality of House Bill No. 76, currently pending before the legislature, in so far as this bill would impose the following mandatory filing requirements upon land surveyors in this state:
            "Sec. 4. After making a survey in conformity with sound principles of land surveying, a land surveyor may file a record of survey with the county auditor in the county or counties wherein the lands surveyed are situated.
            "(1) It shall be mandatory, within ninety days after the establishment, reestablishment or restoration of a corner on the boundary of two or more ownerships or general land office corner by survey that a land surveyor shall file with the county auditor in the county or counties wherein the lands surveyed are situated a record of such survey, in such form as to meet the requirements of this act, which through accepted survey procedures, shall disclose:
            "(a) the establishment of a corner which materially varies from the description of record.
            "(b) the establishment of one or more property corners not previously existing.
            "(c) evidence that by reasonable analysis might result in alternate positions of lines or points as a result of an ambiguity in the description.
             [[Orig. Op. Page 2]]
            "(d) the establishment of lost government land office corners.
            "(2) When a licensed land surveyor, while conducting work of a preliminary nature or other activity that does not constitute a survey required by law to be recorded, replaces or restores an existing or obliterated general land office corner, it is mandatory that, within ninety days thereafter, he shall file with the county auditor in the county in which said corner is located a record of the monuments and assessories found or placed at the corner location, in such form as to meet the requirements of this act."
            The constitutional issue which you have raised with respect to this proposed legislation may be paraphrased as follows:
            Does § 4 of House Bill No. 76, imposing a mandatory requirement of filing certain survey information upon all licensed professional surveyors, deprive them of property without due process of law in violation of Article I, § 3 of our state Constitution and the 14th Amendment to the United States Constitution?
            We answer this question in the negative based upon the following analysis:
            We begin with a notation to the purpose of House Bill No. 76, as set forth in § 1 thereof.  This section reads as follows:
            "The purpose of this act is to provide a method for preserving evidence of land surveys by establishing standards and procedures for monumenting and for recording a public record of the surveys.  Its provisions shall be deemed supplementary to existing laws relating to surveys, subdivisions, platting, and boundaries.
            ". . ."
            The affirmative power which the legislature would be exercising through the enactment of this legislation would, of course, be the "police power" ‑ i.e., the power to enact all laws which are necessary for the preservation of the health, welfare and safety of the people of this state.  Of course, this is not an unlimited power, as will be seen from the following  [[Orig. Op. Page 3]] discussion of its relationship to the constitutional concepts of due process as set forth in 16 Am.Jur.2d, Constitutional Law, § 296:
            "The balance between police powers and due process is more or less in a state of unstable equilibrium, changing with sociological and economic development.  On the one hand, the general rule is firmly settled that the provisions of the Fourteenth Amendment prohibiting any state from depriving any person of life, liberty, or property without due process of law do not operate as a limitation upon the police power of the state to pass and enforce such laws as will inure to the health, morals, and general welfare of the people.  The state is not deprived of the power to enact regulations reasonable in character, and a statute or ordinance which is a valid exercise of the police power does not violate the due process clauses of the state and federal constitutions.  Indeed, regulation under a proper exercise of the police power is due process, even though a property in whole or in part is taken or destroyed or burdens and expenses of various types are imposed.  . . .
            ". . .  The state is bound to recognize, even in the exercise of its police power, the right of all persons to the security afforded by due process of law.  A law which assumes to be a police regulation, but deprives the citizen of the use of his property under the pretense of perserving the public health, safety, comfort, or welfare when it is manifest that such is not the real object and purpose of the regulation will be set aside as a clear and direct invasion of the right of property without any compensating advantages.  The courts will, however, be slow to strike down as unconstitutional legislation of the states enacted under the police power."  (Emphasis supplied.)
            A further somewhat helpful discussion of the nature and extent of a state's police power is to be found in Conger v. Pierce County, 116 Wash. 27, 198 Pac. 377 (1921), wherein the Washington supreme court expressed itself as follows:
            ". . .  It is probable that this power [police power] is the most exalted attribute of government, and, like the power of eminent domain, it existed before and independently of constitutions.  It is easy to understand the principles upon which the police power doctrine is based, but  [[Orig. Op. Page 4]] difficult to define in language its limitations.  It is not inconsistent with nor antagonistic to the rules of law concerning the taking of private property for a public use.  Because of its elasticity and the inability to define or fix its exact limitations, there is sometimes a natural tendency on the part of the courts to stretch this power in order to bridge over otherwise difficult situations, and for like reasons it is a power most likely to be abused.  It has been defined as an inherent power in the state which permits it to prevent all things harmful to the comfort, welfare and safety of society.  It is based on necessity.  It is exercised for the benefit of the public health, peace and welfare.  Regulating and restricting the use of private property in the interest of the public is its chief business.  It is the basis of the idea that the private individual must suffer without other compensation than the benefit to be received by the general public.  It does not authorize the taking or damaging of private property in the sense used in the constitution with reference to taking such property for a public use.  Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.  . . ."  (Emphasis supplied.)
            Although we have been unable to locate any cases from other jurisdictions regarding the constitutionality of a particular statutory requirement such as is contained in § 4 of House Bill No. 76, supra, we have learned that a number of other states, including the neighboring states of Montana, Oregon and California, do presently have in effect comparable mandatory survey filing requirements.  The California statute is § 2862, Business and Professions Code, which is substantially similar to § 4 of the proposed bill.  This California legislation appears to have been in effect for many years, apparently without any court challenge to its constitutionality having ever been made.
            Moreover, some degree of analogy may be drawn between legislation such as this and statutes which require, e.g., physicians and midwives to report births, deaths, and cases of certain diseases (upheld in State v. Wordin, 56 Conn. 216,  [[Orig. Op. Page 5]] 14 Atl. 801 and in Robinson v. Hamilton, 60 Iowa 134, 14 N.W. 202) or requiring persons solemnizing marriages to report such marriages without being compensated by the state for doing so (see, State v. Madden, 81 Mo. 421).  The constitutionality of these and other similar statutory requirements is discussed, generally, in 16A C.J.S., Constitutional Law, § 701.
            Applying the foregoing principles to the provisions of § 4 of House Bill No. 76, supra, we conclude that the "necessity" for the requisite filings of survey records, although perhaps not stated as specifically in the bill as it could be, is nevertheless described in § 1, supra, wherein it is stated that the purpose of the proposed act generally, including its mandatory filing requirements, is for ". . . preserving evidence of land surveys . . ."  To the extent that this objective is primarily for the public's welfare, and we have no reason to doubt that such is the goal of the bill, it would be our opinion that this expression of purpose and object is, in this given instance, sufficient to qualify the filing requirements as a valid exercise of the state's police power.  Therefore, in summary, it is our opinion that the mandatory filing requirements contained in § 4 of House Bill No. 76, would be constitutionally defensible against an attack based upon due process arguments if this bill should be enacted.
            We trust that the foregoing will be of assistance to you.
Very truly yours,
Assistant Attorney General