CITIES AND TOWNS ‑- FREEHOLDERS ‑- CHARTERS ‑- PRESENTATION TO VOTERS ‑- SUBMISSION OF ALTERNATIVE CHARTER PROVISIONS
If a board of freeholders is elected by the voters of a first class city under RCW 35.22.140 to prepare and propose a new or revised city charter for submission to the vote of the people, the freeholders may submit a charter which is complete except for one section and call upon the voters to select between two alternatives as to that section.
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March 17, 1975
Honorable Scott Blair
State Representative, 46th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 29
By recent letter you have requested our opinion on a question which we paraphrase as follows:
If a board of freeholders is elected by the voters of a first class city under RCW 35.22.140 to prepare and propose a new or revised city charter for submission to the vote of the people, may the freeholders submit a charter which is complete except for one section and call upon the voters to select between two alternatives as to that section?
We answer this question in the affirmative.
In AGLO 1973 No. 77 [[to Albert Bauer, State Representative on July 23, 1973 an Informal Opinion AIR-73577]], copy enclosed, this office concluded that a board of freeholders elected by the voters of a first class city to prepare and propose a new or revised city charter could not submit that charter to the voters on a section-by-section basis. After quoting, at length, the pertinent language of both Article XI, § 10 (Amendment 40) of the state constitution and certain supplementary statutes currently codified in RCW 35.22.140 ‑ 35.22.190, we explained our conclusion as follows:
"In our opinion these statutory provisions envision the submission of a proposed altered or revised new charter to the voters as a single, undivided proposition and not on a section-by-section basis. As indicated by the court inState ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946), such a new or revised charter, when adopted, has the effect of superseding the older charter of the city in question, even though certain of its provisions may be similar or even identical to those of the old charter thus [[Orig. Op. Page 2]] replaced. And RCW 35.22.190,supra, speciffically speaks of it ‑ the new or revised charter as a single entity ‑ becomingthe charter of the city if approved by the voters, superseding any existing charter.
"Accordingly, while the various provisions of an existing city charter adopted pursuant to Article XI, § 10,supra, and the above‑cited statutes, may be amended on a piecemeal basis as above explained, an entire new or revised charter, submitted to the voters as such, may not, constitutionally, be voted upon on a 'section-by-section' basis."
That prior opinion, however, appears to have involved a somewhat different question than you have now presented to us. There, the proposal was to "break up" the proposed new charter into a number of different parts, or sections, and to call upon the voters to approve or dissapprove, separately, each of those sections. Here, on the other hand, an entire charter is to be submitted to the voters for their approval as a single unit ‑ subject only to a requirement that the voters additionally indicate their preference as between two alternative versions of a single proposed section.
Although such an approach is not expressly provided for in the applicable statutes, RCW 35.22.140 ‑ 35.22.190, supra, it is clearly contemplated by the final sentence of Article XI, § 10 of the constitution, the full text of which is quoted on pages 1 and 2 of AGLO 1973 No. 77, supra. This sentence reads as follows:
". . . In submitting any such charter, or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others."
Although it could, conceivably, be argued that this language is only applicable with regard to the initial adoption of a city charter, or the enactment of amendments thereto ‑ as opposed to the adoption of a new charter designed to replace an existing one ‑ we are not persuaded that our court would so hold. In fact, as was pointed out by the court in State ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946),1/ there is an earlier sentence [[Orig. Op. Page 3]] in Article XI, § 10 which clearly indicates that the charter adopted pursuant to its provisions can either be an original charter for the subject city or a new one designed to replace a previously adopted charter. We have referenced to so much of this section of the constitution as states that:
". . . Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof,and supersede any existing charter including amendments thereto, and all special laws inconsistent with such charter. . . ." (Emphasis supplied.)
Therefore, it is our opinion that the final sentence of Article XI, § 10,supra, is applicable in both instances; and for that reason, it is our opinion that your question, as above paraphrased, is readily answerable in the affirmative.2/
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Cited in AGLO 1973 No. 77 [[to Albert Bauer, State Representative on July 23, 1973 an Informal Opinion AIR-73577]], supra.
2/At the same time, we adhere to AGLO 1973 No. 77, supra, but distinguish it on the basis above indicated.