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Bob Ferguson

AGO 1958 No. 217 -
Attorney General John J. O'Connell


1. A city of the first class newly incorporated from previously unincorporated territory may validly provide in its city charter for partisan elections, regardless of whether the city adopted a council-manager form of government.

2. Political parties represented at such partisan primary elections are those whose candidates received ten per cent of the total vote cast at the last preceding general election in the state.

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                                                                 August 25, 1958

Honorable Mike McCormack
State Representative, 16th District
95 Atkins
Richland, Washington                                                                                               Cite as:  AGO 57-58 No. 217

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office regarding the following questions:

            (1) May a first class city, to be incorporated from previously unincorporated territory, provide, by charter, that elections be held on a partisan basis?

            (2) If said city adopted a council-manager plan, would this effect the result of question one?

            (3) If question one is answered in the affirmative, what political parties may be represented at such partisan primary elections?

            We answer question one in the affirmative, question two in the negative and question three as set forth in the analysis.

             [[Orig. Op. Page 2]]


            Section 1, chapter 248, Laws of 1907 (cf. RCW 35.01.010), provides that a first class city is one having more than twenty thousand inhabitants at the time of its organization or reorganization.

            Section 10 of Article XI of the state constitution, relating to incorporation of municipalities, provides in part:

            "Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification in proportion to population, of cities and towns, which laws may be altered, amended or repealed.  Cities and towns heretofore organized, or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election, shall so determine, and shall organize in conformity therewith; and cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this Constitution shall be subject to, and controlled by general laws.  Any city containing a population of twenty 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, . . ."  (Emphasis supplied.)

            Section 1 of chapter 17 of the Laws of 1911 (cf. RCW 35.22.020), relating to first class cities, provides:

            "The form of the organization and the manner and mode in which cities of the first class shall exercise the powers, functions and duties which are or may be given by law to such cities, with respect to their own government shall be as provided in the charters thereof."  (Emphasis supplied.)

            Section 1 of the Laws of 1890, page 215, (cf. RCW 35.22.030), provides:

            "Any city now having, or which may hereafter have, a population of twenty thousand or more inhabitants, may frame a charter for its own government."

            Section 5, of the Laws of 1890, p. 218, (cf. RCW 35.22.280 (1)), provides in part:

             [[Orig. Op. Page 3]]

            "Any such city shall have power: First, to provide for general and special elections for questions to be voted upon, and for the election of officers;. . ."  (Emphasis supplied.)

            Section 7 of the Laws of 1890, p. 224, (cf. RCW 35.22.570), provides:

            "Any city adopting a charter under the provisions of this act shall have all the powers which are now or may hereafter be conferred upon incorporated towns and cities by the laws of this state, and all such powers as are usually exercised by municipal corporations of like character and degree, whether the same shall be specifically enumerated in this act or not."

            Section 8 of the Laws of 1890, page 224, provides:

            "The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this act, but the same shall be liberally construed for the purpose of carrying out the objects for which this act is intended."

            In regards to the foregoing statutes, the court said in Ayers v. Tacoma, 6 Wn. (2d) 545, 553, 108 P. (2d) 348 (1940):

            "The foregoing statutes are discussed in State ex rel. Ennis v. Superior Court, 153 Wash. 139, 279 Pac. 601, and the rule to be followed in determining powers conferred upon cities of the first class is set out in the following language:

            "'It is evident from the constitution of this state and legislative enactments that, in Washington, cities of the first class are vested with very extensive powers, and that, under Rem. Comp. Stat., § 8982, supra, the statutes of this state concerning the same must be liberally construed by the courts for the purpose of carrying out the manifest intent of the legislature to establish cities of the first class as self-governing bodies, only "subject to and controlled by general laws."  (Walker v. Spokane [62 Wash. 312, 113 Pac. 775],supra.)'"

            And at page 554:

            It may be stated as a general rule that a state law will not be construed as impliedly taking away from a first-class  [[Orig. Op. Page 4]] city an existing power.  In order to accomplish that result, the state statute must be clear and unambiguous.  A seeming conflict must be harmonized, if possible.  McGill v. Hedges, 62 Wash. 274, 113 Pac. 635.  See, also, 43 C.J. 199."  (Emphasis supplied.)

            And at page 556:

            ". . .In resolving this ambiguity, the act should be harmonized, if possible, with the prior existing power of cities of the first class, rather than construed to nullify that power."  (Emphasis supplied.)

            See, also, State ex rel. Everett, Etc. v. Johnson, 46 Wn. (2d) 114, 278 P. (2d) 662 (1955);  Winkenwerder v. Yakima, 152 Wash. Dec. 547 (1958) [[52 Wn. 2d 617]].

            Section 3 of chapter 153 of the Laws of 1951 (cf. RCW 35.03.040), relating to the incorporation of first class cities from previously unincorporated territory, provides in part as follows:

            ". . . After the first election the nomination and election of officials for said city shall be as prescribed in the charter adopted by the people and the laws of the state. . . ."  (Emphasis supplied.)

            Undoubtedly, in the absence of general law to the contrary, first class cities are vested with power to provide partisan elections by virtue of the foregoing.  With the principles of Ayers v. Tacoma, supra, in mind, let us consider the applicable general law to determine whether it appears, in clear and unambiguous language, that the legislature has nullified such power.

            Section 2 of chapter 209 of the Laws of 1907, as amended by § 2 of chapter 101 of the Laws of 1911 (cf. RCW 29.18.010), provides in part:

            ". . . Hereafter, all candidates for elective offices in this state, either state, county, municipal, precinct or congressional, shall be nominated at a direct primary election held in pursuance of this act: . . . Provided, further, That the provisions of this act shall not apply to nomination of candidates for municipal elective offices in cities of the first class which have adopted or may hereafter adopt charters under section 10,  [[Orig. Op. Page 5]] article XI of the state constitution, where such charters have provided or may hereafter provide a non-partisan method or methods of nominating candidates for municipal elective offices; and all such cities shall have the right and power to provide in their charters for any method or methods of nonpartisan nomination of candidates for their elective offices as they may desire."  (Emphasis supplied.)

            We note that although the underscored portion of the above session law reads "direct primary" the codifier has interpreted such to read "partisan primary."  See RCW 29.18.010.  In effect, the codifier's interpretation appears correct for the act in question provides only partisan procedure.  (See chapter 209 of the Laws of 1907.)

            The operative effect of this provision is to require a direct primary for first class cities which is, in effect, partisan unless such cities provide, by charter, for a nonpartisan method, in which case express power is given to provide methods for nomination "as they may desire."  See State ex rel. Holtzner v. Bothwell, 69 Wash. 217, 124 Pac. 371 (1912).

            Section 7 of chapter 257 of the Laws of 1951 (cf. RCW 29.21.010), provides:

            "All primaries for all cities of the first, second and third class, irrespective of type or form of government shall be nonpartisan and held four weeks prior to the municipal general election.  All names of candidates to be voted upon at city primary elections shall be printed upon the official primary ballot alphabetically in groups under the designation of the respective titles of the offices for which they are candidates.  The name of the person who receives the greatest number of votes and of the person who receives the next greatest number of votes for each position, shall appear in that order on the municipal general election ballot under the designation for each respective office.  In the event there are two or more offices to be filled for the same position, then names of candidates receiving the highest number of votes equal in number to twice the offices to be filled shall appear on the municipal general election ballot so that the voter shall have a choice of two candidates for each position:  Provided, That no name of any candidate shall appear on the city general election ballot unless said candidate shall receive at least ten per centum of the total votes cast for that office.  The sequence of names of candidates printed on the municipal general election ballot shall be in relation to the number of votes each candidate  [[Orig. Op. Page 6]] received at the primary.  Names of candidates printed upon the municipal primary and general election ballot need not be rotated:  Provided further, That no provision of this section in conflict with the primary election provisions contained in charters of cities of the first class shall be effective, except that all first class cities shall hold their primaries four weeks prior to their city general elections."  (Emphasis supplied.)

            The underscored proviso of the statutory provision immediately preceding may appear open to two interpretations.  On the one hand, it may appear that the underscored proviso refers to all charters.  On the other hand, it may be that such proviso refers only to those charters presently existing and conflicting.

            In Western Mach. Exch. v. Grays Harbor Co., 190 Wash. 447, 452, 68 P. (2d) 613 (1937), the court said:

            "A proviso in a law must always be construed in the light of the body of the act, and in such manner as to carry out the intentions of the legislature.  The rule is well stated in 59 C.J. 1088, § 639, as follows:

            "'The cardinal rule that, in construing statutes, the court must ascertain and give effect to the legislative intent applies to the construction of provisos.  A proviso should be construed together with the enacting clause, with a view to giving effect to each and to carrying out the intention of the legislature as manifested in the entire act and acts in pari materia; and where, by reason of omissions or of accidental mistakes in the use of words, the proviso can be given no sensible effect, it will be disregarded.'"  (Emphasis supplied.)

            The rule immediately preceding, coupled with the rules of Ayers v. Tacoma, supra, set forth previously, resolve the uncertainty as to the effect of the underscored proviso.

            The broad and extensive powers vested in first class cities by the constitution and general laws, above, and the express power to provide "for general and special elections for questions to be voted upon, and for the election of officers" include the power to provide for partisan elections.  That existing power was clearly modified by § 2 of chapter 101 of the Laws of 1911 (cf. RCW 29.18.010), so that nomination of candidates was required to be by direct primary (partisan in effect) unless the city provided, by charter, for nonpartisan election.  Thereby, first class cities were, in effect, left with power to decide whether elections were to be partisan or nonpartisan.

             [[Orig. Op. Page 7]]

            To hold that the underscored proviso, above, refers only to charters existing and conflicting clearly nullifies an existing power.  To hold, however, that such underscored proviso refers to all charters, present and future, harmonizes the conflict among the several statutes.

            Therefore, in conformity with the Ayers and Western Machine cases, supra, we conclude that the proviso applies to all charters and that, thereby, first class cities are left with power to decide, by appropriate charter provisions, whether elections shall be partisan or nonpartisan.

            In addition, this interpretation does not result in the proviso rendering the enacting clause ineffective.  Obviously, there is a category of first class cities yet within the purview of the enacting clause, i.e., those cities whose charters contain no provisions prescribing whether elections shall be partisan or nonpartisan; in this case, of course, the general law controls.  Also, we are aware that an irreconcilable conflict is readily apparent when construing § 2 of chapter 101 of the Laws of 1911 "in pari materia" with § 7, chapter 257, Laws of 1951.  By the former, municipal primary elections must be, in effect, partisan unless such are provided by charter to be nonpartisan.  By the latter, elections for first, second and third class cities must be nonpartisan unless charter provisions conflict by providing for partisan elections.

            In the case of Paine v. State, 156 Wash. 31, 38, 286 Pac. 89 (1930), the court set forth the rule which resolves the conflict:

            "We do not lose sight of the rule that repeals by implication are not favored, and that the statute will not be held to have repealed a preceding statute by implication when the two can stand together.  However, where, as in the case at bar, the two statutes prescribe different and inconsistent rules of action about the same thing, and are in conflict, the later statute prevails. . . ." (Emphasis supplied.)

            Accordingly, we answer your first question in the affirmative.

            (2) In answer to your second question, we find no law changing the result of question one where a council-manager plan is adopted.

            (3) Section 3 of chapter 52 of the Laws of 1915 (cf. RCW 29.01.090 and 29.18.020), provides for the political parties which may be represented in a primary election:

            "Any political organization which at the general election last  [[Orig. Op. Page 8]] preceding the primary was represented on the official ballot by regular party candidates may upon complying with the provisions of this act have a separate primary election ticket as a political party:  Provided, That any of its candidates received ten per cent of the total vote cast[at] such last preceding general election in this state, or subdivision thereof in which the candidate seeks the nomination:  Provided further, That such political party shall have held on or before the tenth day of June preceding said primary, a state convention in said state, at which convention said party shall have declared its political principles and its legislative program:  And provided further, That a copy of such declaration of political principles and legislative program shall have been certified by the officers of such convention and filed with the secretary of state within ten days after the adjournment of such convention."  (Emphasis supplied.)

            The first class city in question is being incorporated from previously unincorporated territory.  Obviously there was no "preceding general election" to use as a basis for determining which parties may qualify.  Thereby, the last state general election must be used as the basis for determining which political parties may be represented.  State ex rel. Rogers v. Howell, 92 Wash. 381, 159 Pac. 118 (1916).  We observe that the codification of the above session Law in RCW 29.01.090 (3) is different and clearly inconsistent with our court's interpretation thereof in the case last cited.

            Apart from the foregoing, the instant provision seems too clear to require construction; and we conclude that those parties qualifying thereunder may be represented at the elections in question.

Very truly yours,

Attorney General

Assistant Attorney General