AGO 1957 No. 140 - Dec 10 1957
MUNICIPALITIES ‑- CITIES ‑- TOWNS ‑- STATE DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT PLANNING COMMISSION ‑- GRANTS ‑- COOPERATION WITH FEDERAL GOVERNMENT TO OBTAIN FOR MUNICIPAL, METROPOLITAN AND REGIONAL PLANNING
The department of commerce and economic development has the authority to administer grants under chapter 157, Laws of 1957, and chapter 215, Laws of 1957, and it is authorized to perform planning work in all municipalities, cities, towns, metropolitan and regional areas.
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December 10, 1957
Mr. A. W. Burchill
Department of Commerce & Economic Development
General Administration Building
Olympia, Washington Cite as: AGO 57-58 No. 140
By letter previously acknowledged you have submitted to this office for an official opinion the following eleven questions:
(1) Is the department of commerce and economic development the "official state planning agency" for administering grants under the above‑mentioned federal statute?
(2) Is the said department authorized to perform planning work in municipalities having a population of less than 25,000 and in metropolitan or regional areas?
(3) Is the above‑mentioned federal statute compatible with state law in view of the fact that federal planning grants may only be used for the purposes indicated above?
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(4) Is the said department empowered to fulfill the obligations imposed under the grant contract with the federal government?
(5) Is the said department empowered to cause to be provided as needed the portion of the cost of the planning work not covered by the federal grant?
(6) Is the applicant (the said department) empowered to enter into contracts with the federal government for planning grants under the above‑mentioned federal statute?
(7) Is the applicant authorized to contract in the name of the said department or must it contract in the name of the state of Washington?
(8) Is the applicant authorized to expend donations and grants as well as funds appropriated or received from local sources?
(9) Are there any limitations respecting such planning work?
(10) Are municipalities having a population of less than 25,000 authorized to budget and appropriate moneys to match federal planning moneys provided under the above‑mentioned federal statute?
(11) May municipalities that have incorporated since April 1, 1950, qualify for participation in the program since the above federal statute refers to municipalities having a population of less than 25,000 according to the latest decennial census?
We answer your first eight questions and question 10 in the affirmative. The answer to question nine is contained in the analysis. Your eleventh question is answered in the negative.
Your questions require an analysis of the pertinent provisions of chapter 157 and chapter 215, Laws of 1957. The basic statute which provides for state, urban, municipal, metropolitan and regional planning is found in chapter 157, Laws of 1957.
Section 1, chapter 215, Laws of 1957, reads as follows:
"It is hereby declared to be the public policy of the legislature of the state of Washington to continue, and to accelerate the [[Orig. Op. Page 3]] orderly growth of the economy of the state; not only to preserve, but also to increase the economic well-being of its citizens and its commerce: The legislature thereby determines that it is in the public interest, for the public good and the general welfare of the citizens of the state to establish a department of commerce and economic development. Through research and promotion the department shall foster the most desirable growth and diversification of industry and commerce possible, and the attraction of visitors to the state." (Emphasis supplied.)
Section 17 of chapter 215, Laws of 1957, reads as follows:
"From and after the first day of April, 1957, the division of progress and industry development of the department of conservation and development is abolished and the director of the department of commerce and economic development shall exercise all the powers, duties and functions theretofore vested in and required to be exercised by the supervisor of progress and industry development of the department of conservation and development."
Chapter 157, Laws of 1957, was approved by the governor on March 21, 1957, and since it did not contain an emergency clause did not become effective until the 13th of June, 1957. Chapter 215, Laws of 1957, was signed by the governor March 22, 1957, and contained an emergency clause making it effective as of April 1, 1957.
It is a general rule of statutory construction that the later of two conflicting statutes passed at the same session of the legislature prevails over the earlier one and impliedly repeals it, especially where the later act contains an emergency clause, as in this instance. Whitfield v. Davies, 78 Wash. 256, 138 Pac. 883; State ex rel. Hansen v. Salter, 190 Wash. 703, 70 P. (2d) 1056.
Where two conflicting acts upon the same subject matter are passed at the same session of the legislature, and their conflict is such that they cannot be harmonized and stand together, and one of them contains an emergency clause and the other does not, the one containing the emergency clause must be taken to overcome the other because an emergency clause tends to show that the subject matter of the act was more clearly and pointedly before the legislature than the subject matter of the other act. State ex rel. Gebhardt v. Superior Court for King County, 15 Wn. (2d) 673, 131 P. (2d) 943.
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Nor do we think it is of any significance that § 17, of chapter 215,supra, transferred powers, duties and functions theretofore vested in the division of progress and industrial development of the department of conservation to the department of commerce, inasmuch as § 17 undoubtedly is a statute of general reference. The general rule with regard to adoption by reference is found in 2 Sutherland, Statutory Construction, § 5207, 5208, as follows:
"There are two general types of reference statutes: statutes of specific reference and statutes of general reference. A statute of specific reference, as its name implies, refers specifically to a particular statute by its title or section number. A general reference statute refers to the law on the subject generally. An example of this type of reference is a provision that contracts made under the statute are to be let 'in the manner now provided by law.'"
"A statute of specific reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments with the statute. . . .
"A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted."
In the case ofChelan County v. Navarre, 38 Wash. 684, the supreme court applied the rules stated by Sutherland. This rule has been adhered to by the supreme court in subsequent decisions. SeeState v. Rasmussen, 14 Wn. (2d) 397; andPacific First Federal Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347.
Thus, even if the word theretofore is given its usual meaning, § 17, chapter 215, Laws of 1957, would necessarily include all of the provisions of chapter 157 in its adoption by general reference.
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In answer to your second question, § 1 of chapter 157, supra, specifically provides that the department is authorized to perform planning work in cities or towns which would clearly include those having a population of 25,000 and in addition a metropolitan or regional area.
In answer to your third and fourth questions, § 2 of chapter 157, Laws of 1957, provides as follows:
"The director, through the division, may accept contributions, grants, or other financial assistance from the government of the United States for, or in aid of, any planning program. The director shall promulgate such rules and regulations, enter into such agreements, prescribe such conditions, perform such other lawful act as may be necessary or desirable to secure the financial aid and cooperation of the government of the United States and local planning bodies to implement any planning program."
Section 3, provides as follows:
"The powers conferred by this amendatory act are in addition and supplemental to the powers conferred by any other state or local law, and nothing herein contained shall be construed as limiting or restricting any other powers of the department, the state, or any political subdivision thereof."
We think it is clear that the legislature intended by the enactment of §§ 2 and 3 to authorize the department to perform any and all such acts as are necessary in order to comply with the federal regulations prerequisite to receiving federal planning grants. We are unable to find any incompatibility between the federal statute in question and the laws of the state of Washington. In addition, in so far as we can determine, the department of commerce and economic development is empowered to fulfill the obligations imposed under the grant contract with the federal government.
In answer to your fifth question, § 4 (8) of chapter 157, Laws of 1957, provides as follows:
"The director of conservation and development, through the division of progress and industry development, shall:
"(8) Be authorized to receive from any state department or agency, county and/or municipal legislative body, municipal, metropolitan and/or regional planning commission, funds [[Orig. Op. Page 6]] made available by them to the department of conservation and development, through the division of progress and industry development, in trust, for the purpose of matching such funds with federal moneys received through any federal program of providing planning grants-in-aid to assist financially in fostering comprehensive planning:"
That section is clearly authority for the receipt by the state of matching moneys appropriated by political subdivisions asking for federal planning grants. Subsection (9) further provides that the division of progress and industrial development shall be
". . . authorized to budget for, and transfer the funds referred to in subdivision (8) of this section, after such funds have been matched by federal funds, in either one of the following alternative methods:"
The answer to your sixth and seventh questions again is in the affirmative in view of the specific provisions of § 2 of chapter 157, Laws of 1957. Any contracts which are entered into in the name of the state of Washington must be signed by the appropriate department. Since the state cannot act except through its officials and agents, and since a department constitutes an agent of the state, it can enter into any contract for its principal that it is legally empowered to sign. In this instance, the department is specifically authorized to enter into "such agreements" as may be necessary.
The answer to your eighth question is found in § 4 (9) (a) and (b) of chapter 157, Laws of 1957, which specifically provides as follows:
"(a) Approve the budget, after receiving the proposed budget from the state department or agency, county and/or municipal legislative body, municipal, metropolitan and/or regional planning commission, which made the funds available, for the expenditure of its funds referred to in subdivision (8) hereof, plus the federal matching funds therefor, and an agreement duly executed by it, that such funds will be retained in a separate account, to be expended for such planning purposes only if it has been properly prepared, and said agreement is satisfactory, after which the money placed in trust and the matching funds therefor shall be transferred to the appropriate official having administrative responsibility for the expenditure thereof; or
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"(b) Establish an account with the state treasurer, after receiving from the state department, or agency, county and/or municipal legislative body, municipal, metropolitan and/or regional planning commission, which made the funds available, a proposed budget for the expenditure of its funds referred to in subdivision (8) hereof, plus the matching funds therefor, and an agreement duly executed by it, authorizing the department of conservation and development to expend its funds referred to in subdivision (8) hereof, plus the matching funds therefor, after which the director shall authorize the expenditure of these funds for the conduct of the planning program in accordance with the approved budget and agreement: Provided, however, That at any time after the expiration of ninety days from the date of the deposit of moneys in trust as provided herein and of the notification to the department of conservation and development of such deposit, the depositor may have the moneys so deposited returned to it without restrictions upon their use, upon the depositor's requesting the director of said department to terminate the trust status of such funds and to return them to it."
In answer to your ninth question, we call your attention to the following statutes:
"The commissions of two or more adjoining counties, together with the boards of such counties may cooperate in the formation of a regional planning commission for the making of a regional plan for the region defined as may be agreed upon by the commissions and boards. The regional commission when requested by the commissions of its region or by the state council, may further perform any of the other duties for its region that are specified in RCW 35.63.060 for city and county commissions. The number of members of a regional commission, their method or appointment and the proportion of the cost of regional planning, surveys and studies to be borne respectively by the various counties in the region, shall be such as may be agreed upon by commissions and boards."
"In order that there may be consultation tending toward a reasonable degree of uniformity in the regulations, the legislative or planning authority shall submit to the director of conservation [[Orig. Op. Page 8]] and development at least sixty days in advance of final adoption, its proposed regulations, and shall file with him a copy of the regulations as finally established. Thereafter amendments thereto shall be likewise submitted to the director not less than ten days before final adoption and there shall also be filed with him a copy of each amendment as finally established by it."
It is the opinion of this office that there are no limitations respecting such planning work inasmuch as the basic intent of the pertinent federal act and the 1957 enactments of the state legislature were to facilitate the undertaking of planning work. Thus, all of the statutes in question are designed to encourage the orderly and effective growth of various areas as well as of municipalities through the use of proper planning methods.
The tenth question posed in your request presents no problem with regard to municipalities having a population of less than 25,000 under the general provisions regarding planning commissions found in chapter 35.63 RCW. For example, RCW 35.63.010 defines a "city" as:
"As used in this chapter the following terms shall have the meaning herein given them:
"'City' includes every incorporated city and town;"
Another pertinent provision is found in RCW 35.63.050 as follows:
"The expenditures of any commission or regional commission exclusive of gifts, shall be within the amounts appropriated for the purpose by the council or board. Within such limits, any commission may employ such employees and expert consultants as are deemed necessary for its work."
RCW 35.63.060 defines the powers of the commissions as follows:
"The commission may act as the research and fact finding agency of the municipality. To that end it may make such surveys, analyses, researches and reports as are generally authorized or requested by its council or board, or by the state council with the approval of its council or board. The commission, upon such request or authority may also:
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"(1) Make inquiries, investigations, and surveys concerning the resources of the county;
"(2) Assemble and analyze the data thus obtained and formulate plans for the conservation of such resources and the systematic utilization and development thereof;
"(3) Make recommendations from time to time as to the best methods of such conservation, utilization, and development;
"(4) Cooperate with other commissions, with the state council and with other public agencies of the municipality, state and United States in such planning, conservation, and development; and
"(5) In particular cooperate with and aid the state council within its territorial limits in the preparation of the state master plan and in advance planning of public works programs."
Accordingly, the answer to your tenth question is in the affirmative.
The last question presented in your letter appears to involve a question of our interpretation of the federal statute, which is beyond the scope of the duties of the attorney general. It would appear that the federal statute used the term "latest decennial census" to refer to the last federal census in 1950. Municipalities which have incorporated since that time would not be able to qualify for participation in the planning program unless the attorneys assigned to the federal agency in question so ruled.
We trust this information will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
JANE DOWDLE SMITH
Assistant Attorney General