NOTICE OF HEARING BY PUBLICATION ‑- COUNTY COMMISSIONERS ‑- EXCISE TAXES

NOTICE OF HEARING BY PUBLICATION ‑- COUNTY COMMISSIONERS ‑- EXCISE TAXES.

Since an ordinance levying excise taxes on real estate is concerned with revenues and is not a police regulation, the notice provisions as set forth in RCW 36.32.120 (7) do not apply; therefore the proposed ordinance will become effective even though the ten days' notice by publication has not been given.

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                                                                   April 21, 1953

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington                                                                                                                Cite as:  AGO 53-55 No. 12

 Dear Sir:

             You ask our opinion whether the following procedure will result in the enactment by Lewis County of a valid ordinance effective May 1, 1953, providing for the levying of the real estate excise tax pursuant to chapter 28.45 RCW as amended by chapter 94, Laws of 1953:

             "The newspaper designated as the official county paper by the Board of Lewis County Commissioners is a weekly published on Thursday.  The notice of hearing on the model ordinance levying excise taxes on real estate, . . . was set at a time less than ten days, and so published.  There are not ten days left before the first of May within which another publication can be had.  We propose to adopt the . . . ordinance without further notice on the 23rd of April, excluding from it, however, Sections VIII and IX [Criminal provisions].  We propose then to re‑advertise the ordinance with Sections VIII and IX included for hearing in the fore part of May after giving notice by publication for a full ten days prior to the date of hearing."

             We conclude that the aforementioned proposed procedure will result in the enactment of a valid ordinance effective May 1, 1953.

                                                                     ANALYSIS

             RCW 28.45.050, as amended by section 2, chapter 94, Laws of 1953, provides that:

             "The county commissioners of any county are authorized byordinance to levy an excise tax upon sales of real estate not exceeding one per cent of the selling price. . . ."  (Emphasis supplied)

             In referring to the enactment of ordinances by counties, RCW 36.32.120 (7) provides as follows:

             "The several boards of county commissioners shall:

             "The several boards of county commissioners shall:   [[Orig. Op. Page 2]] ". . .

             "(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 nosuch 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."  (Emphasis supplied)

             The matter of what ordinances come within a requirement of publication or some other mode of notice of their pendency depends upon applicable statutes, their construction and the facts and circumstances of the particular problem involved.  Quite commonly, the requirement is applicable to police regulations or those providing penalties and forfeitures.  McQuillin,Municipal Corporations, 3rd Ed. § 16.77.  Police regulations are defined as such provisions of law as are designed to protect the lives, health, comfort, and quiet of citizens, and secure them in the enjoyment of their property.  32 Words and Phrases,Police Regulations, p. 786.

             It should be emphasized that the notice requirements of the aforementioned statute pertain to "police and sanitary regulations" only.  While the proposed county ordinance in this instance does impose certain criminal sanctions for purposes of enforcement, it is not a police regulation; it is primarily a revenue measure.  Since the ordinance is concerned with revenues and is not a police regulation, the notice provisions as set forth in RCW 36.32.120 (7) do not apply.

             We conclude, therefore, that the proposed ordinance without the criminal provisions will become effective May 1, 1953, even though ten days' notice by publication has not been given by the county.

             Following your suggested procedure will mean, of course, that for a period of a few days after May 1, 1953, the ordinance will have no criminal provisions for enforcement purposes.  The subsequent reenactment of the entire ordinance, including the criminal sanctions, after ten days' notice, will cure that deficiency.

 Very truly yours,
DON EASTVOLD
Attorney General 

A. J. HUTTON, JR.
Assistant Attorney General