AGO 1949 No. 181 - Dec 14 1949
TERRITORIAL LIMITS OF TOWNS
(1) The one square mile territorial limitation on towns prescribed by Rem. Rev. Stat. 8935 has not been repealed by general laws relative to annexation of territory thereby.
(2) The one square mile limitation on the territory of towns may be exceeded pursuant to Rem. Rev. Stat. 8892 relative to municipalities.
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December 14, 1949
Honorable Donald H. Webster
Bureau of Governmental Research & Services
University of Washington
266 J. Allen Smith Hall
Seattle 5, Washington
Cite as: AGO 49-51 No. 181
You have requested the opinion of this office concerning the following questions:
"1. Has the one square mile limitation prescribed by Rem. Rev. Stat. Sec. 8935 been superseded by virtue of the enactment of general laws relating to annexation of areas by municipalities such as Rem. Rev. Stat. Sec. 9202, Rem. Rev. Stat. (1940 Pocket Supp.) Sec. 8896, Rem. Rev. Stat. (1945 Supp.) Sec. 8908-10, or others?
"2. Assuming that the one square mile limitation of Rem. Rev. Stat. Sec. 8935 is still operative, is that limitation subject to the following two exceptions that would permit fourth class municipalities to extend their corporate limits beyond one square mile?
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"a. When the boundaries of fourth class municipalities are adjacent to bodies of water, under Ch. 111, Laws of 1909, Rem. Rev. Stat. Sec. 8892.
"b. When fourth class municipalities annex territory from the government of the United States, under Ch. 13, Laws of 1915, Rem. Rev. Stat. Sec. 8907."
Our conclusions may be summarized as follows:
(1) The one square mile territorial limitation imposed upon fourth class municipalities by section 15, chapter 7, Laws of 1890 [Rem. Rev. Stat. 8935] has not been repealed expressly or impliedly.
(2) The first exception suggested by your letter is applicable to this situation, but the second suggested exception regarding annexation through acquisition from the U.S. Government is not applicable.
Since the power to determine the boundaries of a municipality is vested entirely within the state legislature [2 McQuillin, Municipal Corporations (3rd ed.) §§ 7.03, 7.10 and 7.13], the answers to your questions must be found in the appropriate statutes. Section 15, chapter 7, Laws of 1890 [Rem. Rev. Stat. 8935] confers various powers upon municipal corporations with the following proviso applicable to towns:
"* * * That not more than one square mile in area shall be included within the corporate limits of municipal corporations of the fourth class, * * *"
There has been noexpress repeal of this provision since its enactment. Furthermore, in our opinion, there has been no implied repeal of that statute.
The territorial limitation upon towns, prescribed by Rem. Rev. Stat. 8935, has not been impliedly repealed by § 4, chapter 228, Laws of 1907 [Rem. Rev. Stat. 9202] which provides in part as follows:
"City councils of the cities of the second, third and fourth class, shall and they are hereby authorized and empowered to annex new territory for park, cemetery or other municipal [[Orig. Op. Page 3]] purpose, which may be outside of the city limits of such city, whether contiguous or noncontiguous thereto by ordinance enacted by a majority vote of such council."
A later enactment will supersede a former one where: (1) the later act covers the entire subject matter of the earlier one; (2) where the later enactment is complete in itself and apparently intended to supersede the prior one; and (3) if the two acts are in irreconcilable conflict. Rosenthal v. Tacoma, 31 Wn. (2d) 32, 195 P. (2d) 102; Abel v. Diking and Drainage Improvement District No. 4, 19 Wn. (2d) 356, 142 P. (2d) 1017; 1 Sutherland, Statutory Construction (3rd ed.) § 2012.
Rem. Rev. Stat. 9202 does not refer to the same subject matter nor field of operations as Rem. Rev. Stat. 8935. While § 8935 refers to thepower or jurisdiction of a town within a definitely prescribed area, § 9202 provides amethod of acquisition of property for municipal purposes. In addition, there is no irreconcilable conflict between these two statutes. It will be noted the § 8935 provides that "not more than one square mile in area shall be includedwithin the corporate limits of municipal corporations of the fourth class." § 9202, on the other hand, provides that city councils may acquire property for municipal purposes even though that real estate is outside the corporate limits and whether contiguous or noncontiguous thereto. Thus, it is entirely conceivable that a town may acquire a park outside the city limits and that the area of such park would not be included within the territory comprising the corporate limits of the town. In short, in our opinion, § 9202 does not necessarily provide for annexation of territory which would be included within the corporate limits.
Is § 8935 impliedly repealed by § 1, chapter 128, Laws of 1945 [8908-10 Rem. Supp. 1945], which provides:
"Any portion of a county not heretofore incorporated as a city or town lying contiguous to any city or town may become annexed to such city or town under the provisions of this act, and when so annexed shall become a part of said city or town:Provided, That whenever any such unincorporated territory is separated from any city or town by water, or by tide or shore lands on which no bona fide residence is maintained by any person, said unincorporated territory shall be deemed contiguous for all the purposes of this act."
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In our opinion there is no irreconcilable conflict between § 8935 and this statute. § 8935 places a territorial limitation upon the powers of a fourth class municipality. § 8908-10 provides for amethod of annexation of territory. Nothing is said nor implied in the later enactment that the city may annex territory without limitation. Thus, applying §§ 8908-10 and 8935 together we may say that 8908-10 authorizes a municipality to annex property in the manner prescribed therein up to but not exceeding the one square mile limitation prescribed by § 8935. Hence, the two enactments are not in irreconcilable conflict and since repeals by implication are not favored at law [Rosenthal v. Tacoma, supra] we are impelled to hold that there has been no implied repeal in this instance.
Section 1, chapter 110, Laws of 1937 [Rem. Rev. Stat. Supp. 8896] is virtually identical to 8908-10, supra, and for the same reasons outlined in our discussion of that statute, we feel that § 8935 has not been repealed by implication by the subsequent enactment of Rem. Rev. Stat. Supp. 8896.
While the one square mile territorial limitation for towns is still applicable, that limitation is subject to the exception expressly prescribed by § 1, chapter 111, Laws of 1909 [Rem. Rev. Stat. 8892] by which the jurisdiction of cities whose boundaries front on navigable bodies of water is extended to the middle of such bodies of water. That section further provides:
" * * * that in towns of the fourth class the territory added by this section shall be over and above the one square mile now established by law as the maximum territory within the limits of such town."
In our opinion no exception is created by § 2, chapter 13, Laws of 1915 [Rem. Rev. Stat. 8907] which provides for annexation by cities of territory acquired from the United States. Assuming that statute is applicable to towns (even though cities alone are mentioned), we hold that the one square mile limitation has not been impliedly repealed pro tanto by § 8907. There is no irreconcilable conflict between the two enactments. § 8935 provides a limitation upon the powers and jurisdiction [[Orig. Op. Page 5]] of towns while § 8907 provides a method of annexation of territory to a city. It is consistent to say that a municipal corporation may annex territory under § 8907 up to, but not in excess of, the one square mile limitation prescribed by § 8935.
Very truly yours,
JOHN D. BLANKINSHIP
Assistant Attorney General