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AGO 1950 No. 364 - October 09, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

CITIES OF 2ND, 3RD AND 4TH CLASS ‑- VACANCY IN THE OFFICE OF MAYOR ‑- HOW FILLED ‑- LENGTH OF TERM

1. In cities of the 2nd class where a vacancy occurs in the office of mayor Rem. 9066 controls, and the mayor elected by the members of the city council shall serve only until the next general election.

2. In cities of the 3rd class where a vacancy occurs in the office of the mayor the council shall elect a mayor who shall serve only until the next regular election, at which time a person shall be elected to serve for the remainder of the unexpired term.  (Rem. 9119).

3. In cities of the 4th class where a vacancy occurs in the office of mayor the council shall elect a mayor who shall serve out the unexpired term, irrespective of any intervening general municipal election.  (Rem. 9203).

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                                                                 October 9, 1950

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 364

Attention:  !ttMr. Kenneth Gilbert
            Supervisor of Elections

Dear Sir:

            In your letter of June 6, 1950, you requested an opinion on the following questions:

            "1. Should R.R.S. 9203 be harmonized with R.R.S. 9119 to the extent that all vacancies of elective city positions filled by appointment be subject to the next regular election?

            "2. Should R.R.S. 9203 be construed as a specific statute relating only to the position of mayor and interpreted that a person appointed to fill the position of mayor serves out the unexpired term even though a city general election may occur during this period?"

            In this connection you quoted portions of the above Washington statutes.  In arriving at our conclusions two other statutes were considered, namely, section 63, chapter 241, Laws of 1907 (Rem. Rev. Stat. 9066), and section 108, chapter VII, Laws of 1890 (Rem. Rev. Stat. 9167).  Thus, our conclusions may go beyond your inquiry, but may be summarized as follows:

            1. In cities of the second class where a vacancy occurs in the office of mayor, Rem. Rev. Stat. 9066 controls, and the mayor elected by the members of the city council shall serve only until the next general election.

            2. In cities of the third class where a vacancy occurs in the office of mayor the council shall elect a mayor who shall serve only until the next regular election, at which time a person shall be elected to serve for the remainder of the unexpired term.  (Rem. Rev. Stat. 9119).

             [[Orig. Op. Page 2]]

            3. In cities of the fourth class where a vacancy occurs in the office of mayor the council shall elect a mayor who shall serve out the unexpired term, irrespective of any intervening general municipal election.  (Rem. Rev. Stat. 9203).

                                                                     ANALYSIS

            1. Rem. Rev. Stat. 9066 provides in part:

            "When a vacancy occurs in the office of mayor by reason of the death, resignation or disability of the mayor, the city council shall elect a mayor to fill the vacancy, who shall serve until the next general municipal election.  * * *"

            The above statute, in our opinion, is clear and unambiguous as to how long a council-elected mayor of a second class city shall serve.  Difficulty arises, however, when the above statute is considered in connection with Rem. Rev. Stat. 9203.  In this last section it is provided:

            "In case of a vacancy occurring in the office of the mayor in a city of thesecond, third or fourth class, the city council be and it is hereby empowered and authorized, and it shall be its duty to elect a mayor to serve the unexpired term."  (Emphasis supplied)

            Thus, section 9203,supra, which purports to take care of second, third and fourth class cities, is seemingly inconsistent with section 9066,supra, which deals solely with cities of the second class.  The apparent inconsistency lies in that under section 9203 the council-elected mayor serves until the expiration of the term of his immediate predecessor, while under section 9066 the statute states that the council-elected mayor serves until the next general municipal election, which could be for a shorter term than provided in section 9203.

            As to cities of the second class, it is our opinion that section 9066 controls.  First, for the reason that section 9066 is a later law than section 9203.  Section 9066 was section 63, chapter 241, Laws of 1907, approved by the governor on March 18, 1907.  Section 9203 was section 5, chapter 228, Laws of 1907, approved by the governor on March 16, 1907.  From this it can be seen that although both sections 9066 and 9203 were passed during the same session, section 9066 was the later act by two days.

            Secondly, (for simplicity, consider section 9066 as chapter 241, and section 9203 as chapter 228) chapter 241, in section 73, repealed all other acts and parts of acts in conflict therewith.  Thus, chapter 228,  [[Orig. Op. Page 3]] being in conflict with chapter 241, was expressly repealed by chapter 241, with the result that section 9066 overrides section 9203 as to cities of the second class.  Furthermore, chapter 241 contained an emergency clause, whereas chapter 228 did not.  On this point our court inState ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, stated on page 686;

            '"But we are also of the opinion that 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, that one containing the emergency clause must be taken to overcome the other.  The simple fact of there being an emergency clause would tend 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."'

            Also, section 9066 is in the nature of a special provision related solely to cities of the second class.  This section is found in that portion of our code devoted solely to cities of the second class.  Section 9203, however, is in the nature of a general section and is a part of a chapter entitled "Additional Powers, Bicycles, Poll Tax, Library Levies‑-Street Railway Extensions," which appears to be a catch-all general chapter.

            As a rule of thumb, it is often stated that where a special act conflicts with a general act the special act controls.  50 L.R.A. (N.S.) 352.  Thus, inDowling v. White, 116 Ala. 303, 22 So. 113, a special provision stating that the appointee shall hold office "until the next general election" prevailed over a provision providing that all vacancies in the county shall hold their offices for the "unexpired term."

            Consequently, for the reasons stated above, it is our opinion that section 9066,supra, controls as to cities of the second class, and upon a vacancy in the office of mayor the council-elected mayor serves until the next general municipal election.

            2. In reference to cities of the third class, it is our opinion that section 6, chapter 113, Laws of 1919 (Rem. Rev. Stat. 9119) controls and should be interpreted to mean that when a vacancy occurs in the office of the mayor the council shall elect a mayor who will serve only until the next regular election, at which time a person shall be elected to serve for the remainder of such unexpired term.  Rem. Rev. Stat. 9119 provides in part:

            "Any vacancy occurring in any of the offices provided for in this chapter shall be filled by appointment by the mayor, but if such office be elective, such appointee shall hold office only until the next regular election, at which time a person shall be elected to  [[Orig. Op. Page 4]] serve for the remainder of such unexpired term.  In case a member of the city council shall absent himself for three consecutive regular meetings thereof, unless by permission of the city council, his office may be declared vacant by the city council, and any vacancies in the city council or in the office of mayor shall be filled by a majority vote of such city council.  * * *"

            The above conclusion was reached by this office in an opinion to the Honorable William J. Gaffney, prosecuting attorney for Franklin County, dated December 2, 1946.

            In that opinion we noted the inconsistency between sections 9203 and 9119, and said:

            "This statute [section 9119], however, was superseded by chapter 184, Laws of 1915, which expressly or impliedly repealed all existing laws relating to the government of third class cities, and section 6 of said chapter, later amended by section 1, chapter 113, Laws of 1919 (Rem. Rev. Stat. 9119) provides for the filling of vacancies in said cities."

            Also, in the above opinion, we said:

            "Because this latter statue is somewhat confusing we must resort to the statute to determine the legislative intent.  After careful consideration of all the provisions of said section, we believe the same should have the following construction:

            "'Any vacancy occurring in any of the offices provided for in this chapter shall be filled by appointment by the mayor, and any vacancies in the city council or in the office of mayor shall be filled by a majority vote of such city council, but if such office be elective, such appointee shall hold office only until the next regular election, at which time a person shall be elected to serve for the remainder of such unexpired term.  In case a member of the city council shall absent himself for three consecutive regular meetings thereof, unless by permission of the city council, his office may be declared vacant by the city council.  * * *'

            "Any other construction, in our opinion, would ignore the plain language of the statute because in the opening sentence reference is made to all of the offices in the chapter, which includes the mayor and the city council.  Therefore, this should logically be followed by the authorities which are qualified to fill the vacancies in all these offices, and then it should end with the proviso for the election to the unexpired term."

             [[Orig. Op. Page 5]]

            3. As to cities of the fourth class, it is our opinion that section 9203,supra, controls and means that when a vacancy occurs in the office of mayor the council shall elect a mayor who shall serve out the unexpired term, irrespective of an intervening general municipal election.

            This conclusion is in accord with three previous opinions from this office.  They are our opinions to Mr. T. W. Howell, January 14, 1924; Mr. H. E. Hagerman, December 2, 1926; and Mr. Frederick C. Olsen, February 11, 1933.  The reasons supporting our conclusion may be stated briefly.

            First, section 9203,supra, is controlling because it is a later act than section 9167.  This latter section was section 108, chapter VII, Laws of 1890, whereas section 9203 was of the Laws of 1907.  Also, section 9167 provides no machinery for filling a vacancy in the office of mayor.  Section 9167 provides:

            "Any vacancy occurring in any of the offices provided for in this chapter shall be filled by appointment by the mayor; but if such office be elective, such appointee shall hold office only until the next regular election, at which time a person shall be elected to serve for the remainder of said unexpired term.  In case a member of the council is absent from the town for three consecutive meetings, unless by permission of the council, his office shall by the council be declared vacant, and all vacancies in the council shall be filled by a majority vote of said council."

            It will be noted that sections 9167 and 9119, supra, appear very similar.  However, the phrase "any vacancies in the city council or in the office of mayor shall be filled by a majority vote of such council," appearing in section 9119, does not appear in section 9167.

            Thus, for the reasons stated above we again conclude as to cities of the fourth class section 9203 controls and the council-elected mayor serves out the full unexpired term of his predecessor.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General

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