ELECTION OF JUSTICES OF THE PEACE IN CITIES HAVING A POPULATION IN EXCESS OF 5000 INHABITANTS.
Where a county auditor has knowledge based upon the Federal Census or a preliminary estimate issued by the Bureau of the Census that the population of a city in his county has increased from a number of inhabitants less than 5000 to a number in excess of 5000, he should give notice calling for the election of but one justice of the peace and should prepare his ballots in such a manner that the voters will vote for but one candidate for the office of justice of the peace.
- - - - - - - - - - - - -
August 14, 1950
Honorable Earl Coe
Secretary of State
Olympia, Washington Cite as: AGO 49-51 No. 320
We have your letter of August 9, 1950, wherein you have asked the following question:
Where certain cities whose population was established by the 1940 census as being less than 5,000 persons, are shown by the 1950 preliminary bulletin of the Bureau of Census to have a population in excess of that figure, how many justices of the peace shall be elected in each of such cities at the approaching state election to be held this year?
The conclusions reached may be summarized as follows:
Where a county auditor has knowledge based upon the Federal census or a preliminary estimate issued by the Bureau of the Census that the population of a city in his county has increased from a number of inhabitants less than 5,000 [[Orig. Op. Page 2]] to a number in excess of 5,000, he should give notice calling for the election of but one justice of the peace and should prepare his ballots in such a manner that the voters will vote for but one candidate for the office of justice of the peace.
By section 10 of Article IV, of our Constitution, it is provided:
"The legislature shall determine the number of justices of the peace to be elected in incorporated cities . . . In incorporated cities or towns having more than five thousand inhabitants, the justices of the peace shall receive such salary as may be provided by law, and shall receive no fees for their own use."
Chapter LXVII, Laws of 1888, page 120, section 3 (Rem. Rev. Stat. 7562) provides generally for the number of justices of the peace in cities as follows:
"Each incorporated city in this state, together with any adjoining precincts, if any there are, lying partly within and partly without said city, shall, for the purposes of this chapter, and for fixing and limiting the number of justices of the peace to be elected in such city, be deemed and considered one precinct, and the qualified electors within the limits thereof shall, at each general election at the several polling places therein, vote for and elect two justices of the peace, and no more."
This provision is qualified by section 1, chapter LXVI, Laws of 1897, page 110, (Rem. Rev. Stat. 7563), which was enacted later as follows:
"There shall be elected at the general election to be held in November, 1898, and biennially thereafter in cities of more than five thousand inhabitants only one justice of the peace and one constable and no more."
[[Orig. Op. Page 3]]
In the cities to which you refer, the declared population thereof being less than 5,000 inhabitants at the last election, two justices of the peace were elected to the offices provided for by Rem. Rev. Stat. 7562, supra, and these officers are serving currently. Presently, the population of these cities has been declared by the 1950 preliminary estimate of the Census Bureau to be in excess of 5,000 inhabitants and you ask in effect whether they are thus brought within the purview of Rem. Rev. Stat. 7563 so that the county election officials shall provide for an election to but one office of justice of the peace in such cities. The general problem raised by your question has twice been considered by our Supreme Court.
InState ex rel Williams v. Brooks, 58 Wash. 648, 109 Pac. 211, Williams brought a quo warranto proceeding in which he sought to be adjudged the sole justice of the peace for the city of Puyallup and to have Brooks ousted from the office of justice of the peace for Puyallup. At the general election of November, 1908, the public officials of Pierce County proceeded upon the assumption that the city did not have more than 5,000 inhabitants, and elections were held accordingly for two justices of the peace. The ballot, in accordance with subdivision 7, section 4893 Rem. and Bal. Code (now subdivision 7, section 5274 Rem. Supp. 1947) contained directions to vote for two persons for justice of the peace. One, Whitman, received the highest vote and Brooks received the next highest. Both were certified but Whitman did not qualify and Williams was appointed in his stead. After both had qualified it was determined, both in a related court action and by a finding of the Board of County Commissioners, that at the time of election, the city did have in excess of 5,000 inhabitants. Williams contended that since the city had in fact in excess of 5,000 inhabitants at the time of the 1908 election there was but one office of justice of the peace to be filled at that time and that Whitman alone was elected to that office, he having received the highest number of votes, and that he, Williams, by appointment had succeeded to Whitman's rights. The court was not impressed by this reasoning, saying that "It cannot be possible that the going out of existence of one of these offices is dependent upon the existence of a fact, to wit: the population of a city, prior to some official determination of such fact." The court then held that both parties were legally elected, not to the single salaried office provided for by Rem. Rev. Stat. 7563, but rather to the two fee offices provided for by Rem. Rev. Stat. 7562 and thus since the two offices still existed, neither party could oust the other. The court further held that having been legally elected, the incumbents were entitled to remain in office until the end of their terms.
[[Orig. Op. Page 4]]
"* * * We are of the opinion that this is the correct view, and that it was not the intention of the legislature to have the law work a change in the tenure of office of justices in cities during the term for which they are elected or appointed. Nor was it the intention of the legislature to have the change from two justices to one justice occur except at the end of a regular term. It will be noticed that the language of Rem. & Bal. Code, § 6632 is, 'There shall be elected at the general election to be held in November, 1898, and biennially thereafter in cities of more than five thousand inhabitants only one justice . . .;' from which we conclude that there is no office of a single justice as contemplated by this law until after the time for holding an election for that purpose has passed. Neither of these officers were elected at such biennial election in a city of more than 5,000 inhabitants, nor appointed as a successor of one so elected. The transition in such a city from two justices to one justice must have been intended by the lawmakers to occur at some certain definable time. We are unable to reach any conclusion other than that such time is at the end of a term of office next following some official determination of the fact that the city has more than 5,000 inhabitants." (Italics ours).
And inState ex rel Elwood v. Lovering, 78 Wash. 624, 139 Pac. 617, the relator who with another was elected justice of the peace in the City of Raymond at the November 1912 election, brought mandamus against the county auditor for the issuance of a salary warrant which claimed by virtue of services rendered in that office. Dismissal of his petition was affirmed by the Supreme Court. Relator qualified for the office, but the other person did not, and his office remained vacant. Relator based his contention upon a finding made in August 1912, by the city council that the city council had in fact a population of 5,148. The court approvingly referred to the Brooks case, saying:
[[Orig. Op. Page 5]]
"* * * The effect of the court's decision was that, notwithstanding that fact, and election having been held without a previous determination, or by the courts, the constitutional provisions and the statutes would not applyad interim, or until an election had been held on a proper notice calling for the election of but one justice. * * *" (Italics ours).
The holdings in these cases have established the following rules for our guidance.
1. That the naked fact of increase of population does not operate to substitute the salaried office for the two fee offices, but there must be some official determination of such fact. Upon this phase theBrooks case, supra, remarks as follows:
"It is admitted that the city of Puyallup did in fact have more than 5,000 inhabitants at the time of the election of November, 1908, and it is also admitted that that fact was not judicially determined in any action, nor determined by the board of county commissioners for Pierce county until April, 1909, after the qualification of appellant under his election, and after the qualification of respondent under his appointment. We must presume, also, that the fact that Puyallup had more than 5,000 inhabitants was not determined by the county auditor; for in performing his official duty in preparing the ballots for the November, 1908, election, he proceeded upon the assumption that there were to be elected in the city two justices of the peace, and so instructed the voters. This was a part of his official duty under sections 4891, 4893, Rem. & Bal. Code. We mention this since it might be held that the county auditor could officially determine that the city had more than 5,000 inhabitants, if not otherwise officially [[Orig. Op. Page 6]] determined, incident to his duty in calling elections and in instructing the voters how many justices were to be elected. However this may be, the record before us negatives the idea that the auditor has ever officially determined that Puyallup has more than 5,000 inhabitants. Of course we take judicial notice of the fact that the United States census of 1900 does not show such fact, and that there has been no Federal census completed since that time."
2. The proper time for the transition in such a city is at the end of a term of office next following some official determination of the fact that the city has more than 5,000 inhabitants.
The official preliminary bulletin of the census bureau constitutes a valid basis for the classification of counties. See our recent opinion dated June 15, 1950, addressed to your office wherein we ruled that the county auditor should be guided by such bulletin in ascertaining filing fees to be charged candidates and in permitting filing for the office of coroner at the 1950 election in counties which according to the 1940 census were third class counties. We adhere to that opinion and feel that the reasons there expressed are equally applicable to the present problem. It is to be remembered that the establishment of population figures is essentially a matter of evidence, and the Federal census figures are universally accepted as the best evidence of that fact. Further, courts will take judicial notice of census figures determining the population of a municipal corporation. State ex rel Williams v. Brooks,supra;State ex rel Cornell v. Smith, 149 Wash. 173, 270 Pac. 306.
Our conclusion is that if the county auditor by virtue of an official preliminary bulletin of the Census Bureau, has knowledge that any of the cities in his county has increased its population from a population of less than 5,000 inhabitants to a population in excess of 5,000 inhabitants, he should give notice calling for the election of but one justice of the peace for that city and should prepare his ballots in such a manner that the voters will vote for but one candidate for the office of justice of the peace.
Very truly yours,
RICHARD OTIS WHITE
Assistant Attorney General