CITIES AND TOWNS ‑- FREEHOLDERS ‑- CHARTERS ‑- PRESENTATION TO VOTERS ‑- FORMATION OF NEW OR REVISED CITY CHARTER
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 a vote of the people, that charter may not be presented to the voters on a section-by-section basis.
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July 23, 1973
Honorable Albert Bauer
State Representative, 49th District
13611 N.E. 20th Avenue
Vancouver, Washington 99664
Cite as: AGLO 1973 No. 77
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 a vote of the people, may that charter be presented to the voters on a section-by-section basis?
We believe that this question must be answered in the negative.
Your question, as we understand it, involves a first class city1/ which has heretofore adopted a charter under so much of Article XI, § 10 (Amendment 40) of the state Constitution as provides that:
". . . Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had at which election there shall be chosen by the qualified electors of said city, fifteen freeholders thereof, who shall have been residents of said city for a period of at least two years preceding their election [[Orig. Op. Page 2]] and qualified electors, whose duty it shall be to convene within ten days after their election, and prepare and propose a charter for such city. 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. Said proposed charter shall be published in the daily newspaper of largest general circulation published in the area to be incorporated as a first class city under the charter or, if no daily newspaper is published therein, then in the newspaper having the largest general circulation within such area at least once each week for four weeks next preceding the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given as required by law. Said elections may be general or special elections, and except as herein provided shall be governed by the law regulating and controlling general or special elections in said city. Such charter may be amended by proposals therefor submitted by the legislative authority of such city to the electors thereof at any general election after notice of said submission published as above specified, and ratified by a majority of the qualified electors voting thereon. 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."
However instead of proposing individual amendments to this existing charter ‑ which clearly can be done on a "section-by-section basis" ‑ it is being proposed that a complete new or revised charter be prepared for submission to the voters as provided for in RCW 35.22.140-35.22.190, the first of which sections provides as follows:
[[Orig. Op. Page 3]]
"On the petition of a number of registered voters of a city equal to twenty-five percent of the total votes cast at the last preceding city election, the city council of a charter city shall, or without such petition may, cause an election to be held for the purpose of electing a board of fifteen freeholders for the purpose of preparing a new charter for the city by altering, revising, adding to or repealing the existing charter including all amendments thereto. The members of the board of freeholders must be qualified electors and must have been residents in the city for a period of at least two years prior to their election. At such election the proposition of whether or not a board of freeholders shall be created at all shall be separately stated on the ballots and unless a majority of the votes cast upon that proposition favor it, no further steps shall be taken in the proceedings."
RCW 35.22.150 then provides that:
"Within ten days after the results of the election have been determined, if a majority of the votes cast favor the proceeding, the members of the board of freeholders elected thereat shall convene and prepare a new charter by altering, revising, adding to, or repealing the existing charter including all amendments thereto and within six months thereafter file it with the city clerk."
Next to be noted is RCW 35.22.160, which states that:
"Upon the filing of the proposed new, altered, changed or revised charter with the city clerk, it shall be submitted to the qualified voters of the city at an election to be called therefor pursuant to the provisions of law applicable to the holding of elections in such city."
[[Orig. Op. Page 4]]
RCW 35.22.170 and 35.22.180 then cover the details of publishing the resulting new or revised charter prior to the election and the manner of canvassing the returns, after which (finally) RCW 35.22.190 provides as follows:
"If a majority of the voters voting upon the adoption of the proposed new, altered or revised charter favor it, it shall become the charter of the city and the organic law thereof, superseding any existing charter. All bodies or offices abolished or dispensed with by the new, altered or revised charter, together with the emoluments thereof shall immediately cease to exist, and any new offices created shall be filled by appointment of the mayor until the next general election subject to such approval by the city council as may be required by the new, altered or revised charter."
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 in State 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 old 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 replaced. And RCW 35.22.190, supra, specifically speaks of it ‑ the new or revised charter as a single entity ‑ becoming the 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 piece‑meal 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.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See AGO 1973 No. 15 [[to Christopher T. Bayley, Prosecuting Attorney, King County on June 26, 1973]].