Authority to provide that a state general election be held in every odd numbered year at which certain public officers would be elected and constitutional amendments, initiatives and referendums would

LEGISLATURE‑-Authority to provide that a state general election be held in every odd numbered year at which certain public officers would be elected and constitutional amendments, initiatives and referendums would be submitted.

The legislature can enact legislation providing that a state general election be held on the Tuesday after the first Monday in November of every odd numbered year at which election certain public officers would be elected and all constitutional amendments, initiatives and referendums would be submitted.

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                                                                February 23, 1959

Honorable R. R. Greive
Washington State Senator, 34th District
Legislative Building
Olympia, Washington                                                                                                  Cite as:  AGO 59-60 No. 15

Dear Sir:

            This letter is written in answer to your request for an opinion from this office on a question which we paraphrase as follows:

            Can the legislature legally designate that a state general election be held on the Tuesday after the first Monday in November of every odd numbered year at which election members of the board of directors of school districts, city officials, and officials of other districts would be elected and all constitutional amendments, initiatives and referendums ready for submission to the voters would be submitted?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Your letter does not indicate the method that would be used to cause the term of office of the present incumbents to expire so that an orderly system could be devised for the election of all of the public officers at a November election in odd numbered years.

             [[Orig. Op. Page 2]]

            All of the public officers mentioned in your question hold offices created by statute rather than offices created by the constitution.  The general rule is that the legislature may increase or decrease the term of office of an incumbent holding an office created by the legislature unless there is a specific prohibition in the constitution.  Bogue v. Seattle, 19 Wash. 396.  The general rule is stated in 43 Am.Jur. 11 as follows:

            "There is no doubt of the power of the legislature which creates an office to abolish it or to change it, and the legislature may shorten or lengthen the term of the office itself, in the absence of constitutional inhibition. . . ."

            The only constitutional provision which we need notice at this point is Article XI, Section 8, which reads in pertinent part as follows:

            ". . . The salary of any county, city, town, or municipal officers shall not be increased or diminished after his election, or during his term of office;nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."  (Emphasis supplied.)

            Based on the above authority, we conclude that any system for the orderly expiration of terms of office that does not lengthen the term of office would constitute a proper exercise of the legislative power.  SeeState ex rel. Pendleton v. Superior Court, 119 Wash. 73, 204 Pac. 1053.

            The constitution does not require that the officers mentioned in your question be elected at the times they are now being elected.  The election of such officers on the Tuesday after the first Monday in November of odd numbered years would be consistent with the provisions of Article VI, Section 8 of the constitution.

            We conclude, therefore, that the legislature may legally designate that a state general election be held on the Tuesday after the first Monday in November of 1959 and every odd numbered year thereafter.

            The second portion of your question deals with the validity of the submission of initiatives, referendums and constitutional amendments at such an election.  The submission of referendums at such an election poses no particular problem since a referendum can be submitted at the next general election or at a special election.  Amendment 7, Washington State Constitution.

            The crucial question is whether or not such an election would be a general election within the purview of Amendment 7 of the state constitution which requires initiatives to be submitted at the "next regular general election" and section 1, Article XXIII of the state constitution which requires constitutional amendments to be submitted at the "next general election."

            In our opinion to you dated February 2, 1959, we pointed out that the Supreme Court of Michigan has held that the "next general election," as that phrase is  [[Orig. Op. Page 3]] used in its constitution relating to submission of constitutional amendments, refers to the biennial election held in November for the election of state officers.  Westinghausen v. People, 44 Mich. 265, 6 N.W. 641.  We indicated, however, that the Michigan constitution, unlike our own, refers to only one election as being a general election and that we did not believe the Michigan case to be persuasive authority in this jurisdiction.

            We also pointed out in that opinion that the Supreme Court of Georgia has held that an election held on a specific date in every odd numbered year at which public officers would be elected to fill vacancies and constitutional amendments would be voted on, would be the "next general election" as that term is used in a constitutional provision governing amendments to the state constitution almost identical to our own constitutional provision.  Aycock v. State, 184 Ga. 709, 193 S.E. 580.  We admitted that this case, while not binding on our court, would be persuasive authority.

            The basis of the substantial doubt expressed in our prior opinion to you was that your question, as then posed, clearly indicated that public officers would not regularly be elected at the contemplated election.  On the first page of our prior opinion we stated:

            ". . . For the purpose of this opinion it is adequate to know thatno public officers would regularly be elected at the election, . . ."  (Emphasis supplied.)

            In a latter portion of the opinion we quoted from State ex rel. DeBow v. McNeill, 127 Wash. 157, 162, 219 Pac. 852, as follows:

            "'. . . The general elections always referred to by constitution and statutes must be taken to be the regular elections held at stated times under the lawfor the election of public officers. . . .'" (Emphasis supplied.)

            We also quoted from the case of State ex rel. Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651, as follows:

            "'. . . The framers of the constitution undoubtedly knew it would necessarily be a special election whatever it might be called.  Their manifest intention was not to require a general election on the subject itself, but to require that the result of such election should be determined, not by a mere majority vote on the question, but by the majority of the vote at a general election. . . .'" (Page 80)

            and then stated:

            "The above language lends weight to the theory that when the framers of the constitution referred to a general election,  [[Orig. Op. Page 4]] they did not foresee periodic elections at which only propositions would be submitted, but rather envisioned that propositions would be submitted at a general election at which public officers were regularly elected, unless a special election on a particular proposition was authorized as, for example, in a latter portion of Article XI, Section 10 of our constitution."  (Emphasis supplied.)

            Your present question indicates that public officers would regularly be elected at the November election held in odd numbered years.  This additional factor removes the doubt expressed in our prior opinion and requires us to hold that such an election is within the definition of the term "general election" as previously defined by our court.  DeBow v. McNeill, supra;State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120.  We find no Washington cases which indicate that a contrary result should be reached.

            While we feel that from a legal standpoint it would be more desirable that a state officer be elected at such an election, we do not believe that the failure to do so is a sufficient basis for holding that initiatives and constitutional amendments cannot be submitted at such an election.

            We conclude, therefore, that the legislature may legally designate that a state general election be held on the Tuesday after the first Monday in November of every odd numbered year at which election members of the board of directors of school districts, city officials, and officials of other districts would be elected and all constitutional amendments, initiatives and referendums ready for submission to the voters would be submitted.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ELVIN J. VANDEBERG
Assistant Attorney General