AGO 1970 No. 8 - May 19 1970
CITIES AND TOWNS - OPTIONAL MUNICIPAL CODE - CHANGE OF GOVERNMENTAL CLASSIFICATION - INITIATIVE AND REFERENDUM IN NONCHARTER CODE CITY
(1) The legislature has not granted the powers of initiative and referendum to the resident voters of a noncharter code city having a population of less than ten thousand inhabitants operating under the mayor-council form of government.
(2) However, the legislature may, by the enactment of appropriate amendments to the optional municipal code, grant the powers of initiative and referendum to the resident voters of such a noncharter code city.
(3) In the absence of legislation granting the powers of initiative and referendum to the resident voters of a noncharter code city operating under the mayor-council form of government, the city council of such a city may not grant these powers by ordinance.
- - - - - - - - - - - - -
May 19, 1970
Honorable Harold S. Zimmerman
State Representative, 17th District
1432 N.E. 6th Avenue
Camas, Washington 98607
Cite as: AGO 1970 No. 8
By letter previously acknowledged you have requested an opinion of this office on three questions pertaining to a city operating under the optional municipal code (Title 35A RCW). We paraphrase your questions as follows:
(1) Has the legislature granted the powers of initiative and referendum to the resident voters of a noncharter code city having a population of less than ten thousand inhabitants which is operating under the mayor-council form of government?
[[Orig. Op. Page 2]]
(2) If question (1) is answered in the negative, may the state legislature, by amendments to the appropriate provisions of the optional municipal code, grant the powers of initiative and referendum to the resident voters of such a noncharter code city?
(3) In the absence of legislation granting the powers of initiative and referendum to the resident voters of such a noncharter code city as is described in question (1), may the city council of such a city grant these powers by ordinance?
We answer questions (1) and (3) in the negative, and question (2) in the affirmative.
As we recognized in AGO 63-64 No. 91 (copy enclosed), dealing with the powers of initiative and referendum at the county level, both of these powers are legislative in nature. Accord,Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595 (1915). The power of initiative is the power of the people, directly, to enact a law (statute, ordinance, etc.), while the power of referendum is the power of the people, directly, to reject (or veto) a law passed by their formal legislative authority (state legislature, city council, etc.). And, of course, the legislative, or law-making, function of government (of which the powers of initiative and referendum are adjuncts), whether at the federal, state or local level, is one of the three basic governmental functions which may be found under any of the various forms of government with which we are familiar in this country; i.e., legislative, administrative or executive, and judicial. Thus, consistent with the analytical approach which we took in the foregoing opinion with respect to county government, we must approach your present inquiry from the standpoint of determining (1) where the legislative powers of government are to be found in a noncharter code city operating under the mayor-council form of government as provided for in the optional municipal code; and (2) from what source these powers are derived.
The optional municipal code was enacted by the legislature in 1967,1/ following approximately one and one half years of [[Orig. Op. Page 3]] study by the municipal code committee created by chapter 115, Laws of 1965, Ex. Sess. That committee had been directed by § 2 of this 1965 act to,
". . . prepare and submit to the fortieth legislature, in bill form, a code of laws for the government of cities and towns which shall include a form of statutory home rule. . . ."
Under the code as finally adopted, a number of options were made available to the various existing cities and towns in this state, including that of continuing to operate under the applicable preexisting general laws as if the code had not been enacted. In the case of an existing city or town electing to come under the code, the options provided for therein may be summarized as follows:
(1) Any city or town may become a noncharter code city, pursuant to RCW 35A.02.010.
(2) If a city has a population in excess of 10,000 inhabitants, it may, instead, become acharter code city RCW 35A.07.010.
(3) Upon becoming either a charter or noncharter code city, the city may further opt (under RCW 35A.07.010 and 35A.02.030) to retain its preexisting statutorily authorized form of government or to adopt one of the plans of government provided for in the code; namely, the mayor-council plan (chapter 35A.12 RCW) or the council-manager plan (chapter 35A.13 RCW).
(4) In addition, a city which is eligible by reason of its population to become acharter code city may, instead of any of the foregoing, establish its own distinct plan of government under its charter, after approval of its charter provisions by the voters. See, RCW 35A.08.010, et seq.
In terms of these options, there can be no question but that if we were dealing in this opinion with a charter rather than a noncharter code city, the people of the city, in framing their own form of government, could include within its charter provisions for direct legislation by means of the initiative and referendum. Accord, Article XI, § 10 (Amendment 40) of our state constitution, as construed inHartig v. Seattle, 53 Wash. 432, 102 Pac. 408 (1909).2/
[[Orig. Op. Page 4]]
However, this approach is dependent upon the particular city's eligibility for, and election to pursue, this option; and thus, clearly is not available to a city such as is the subject of your questions. Such a city, as we have seen, can only be operated under one of the several forms of government specifically provided for in the code; or, alternatively, in accordance with the plan of government under which it was operating prior to its adoption of the code.
We take it to be established that the legislative powers of a city government are to be found in the formal legislative body thereof (i.e., city council, city commission, etc.) unless the state legislature, in delegating these powers, has expressly vested them elsewhere. Accord, 2 McQuillin, Municipal Corporations, § 10.06, p. 748 (3rd ed. rev. 1966); AGO 63-64 No. 91,supra; cf., State ex rel. Everett Etc. v. Johnson, 46 Wn.2d 114, 278 P.2d 662 (1955). Our examination of the two plans of government under which noncharter code cities are authorized to organize and operate under the code itself (mayor-council or council-manager, pursuant to chapters 35A.12 and 35A.13 RCW, respectively) reveals no provision relating to either of these plans which vests any portion of their legislative authority outside of their respective city councils and mayors. See, RCW 35A.12.100 35A.12.160 and RCW 35A.13.190 35A.13.230. As for the various statutory forms of government under which a noncharter city might have been operating prior to its adoption of the code,3/ only one (the commission form) includes any provisions for direct legislation by the people through the initiative and referendum. See, RCW 35.17.240 35.17.360, by which the legislature has specifically granted the powers of initiative and referendum to the electorate of any city operating under this particular form of government. However, again, we are not dealing in this opinion with a city to which these latter provisions are applicable.
This brings us, then, to the second aspect of our analytical [[Orig. Op. Page 5]] approach: From what sources may the people of a noncharter code city operating under the mayor-council (or, for that matter, the council-manager) form of government derive the powers of initiative and referendum. The possibilities to be explored, within the context of your two questions, are:
(1) Action of the state legislature; or
(2) Action of the city council.
Unquestionably, the first of these approaches (which is the subject of your second question) is available. All noncharter cities in this state, whether operating under the optional municipal code or not, are totally creatures of the legislature. Accord,Othello v. Harder, 46 Wn.2d 747, 284 P.2d 1099 (1955); 2 McQuillin, Municipal Corporations, § 4.04 (3rd ed. rev. 1966). Thus, just as the legislature has previously granted the powers of initiative and referendum to the resident electors of all cities which are operating under the commission form of government (as above noted), it may likewise do so with respect to cities operating under any other form of government.
On the other hand, we do not believe these powers can be obtained by the electorate simply as a result of action by their own city council. The issue of the allocation of the legislative powers of a city is not in our opinion a question which the formal legislative body of a noncharter code city is, itself, empowered to resolve.
This is true, we believe, notwithstanding two sections of the optional municipal code which have been called to our attention as possible support for a contrary conclusion. These two sections are RCW 35A.11.020 and RCW 35A.21.160, which provide, respectively, as follows:
". . . The legislative body of each code city shall have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law . . . In addition and not in limitation, the legislative body of each code city shall have any authority ever given [[Orig. Op. Page 6]] to any class of municipality or to all municipalities of this state before or after the enactment of this title, such authority to be exercised in the manner provided, if any, by the granting statute, when not in conflict with this title. . . ." (RCW 35A.11.020.)
"A code city organized or reorganized under this title shall have all of the powers which any city of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities." (RCW 35A.21.160.)
In our judgment, the first of these two statutes may be quickly disposed of. Clearly, this statute goes to the question of the powers which may be exercised by the legislative body of each code city, and not to the critical question of how that legislative body is to be comprised.
As for RCW 35A.21.160, we construe this provision as merely constituting an enunciation of legislative intent that a code city is to have all of the powers which may, constitutionally, be possessed by any class or category of city in this state. This latter statute speaks of the powers of each city as organized under the code; i.e., the powers of the city as a corporate entity. It simply does not deal with the question of reserving the powers of initiative or referendum in a legislative body other than the city council, etc.; or, in a broader sense, with the form of government under which noncharter code cities are to be organized.
Except for those cities which are constitutionally entitled so to provide in their charters, no city in this state can be said to have the power, independent of the legislature,to adopt a form of government other than one of those which the legislature has specifically authorized. Therefore, since the question of whether the resident voters of a particular city can be said to have the powers of initiative and referendum goes to the matter of the form of government under which the city is organized, it follows that RCW 35A.21.160, supra, is of no greater avail than RCW 35A.11.020,supra, in terms of enabling a city council of a noncharter code city to [[Orig. Op. Page 7]] provide, by ordinance, for the initiative and referendum.
Based upon the foregoing, we answer your first and third questions, as paraphrased, in the negative; and your second question in the affirmative.
We trust the foregoing will be of assistance to you.
Very truly yours,
DONALD FOSS, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/Chapter 119, Laws of 1967, Ex. Sess.
2/See, also, RCW 35.22.200, which expressly authorizes cities of the first class, in their charters, to "provide for direct legislation by the people through the initiative and referendum upon any matter within the scope of the powers, functions, or duties of the city."
3/Mayor-council under chapters 35.22, 35.23 or 35.27 RCW, depending upon the class of city; commission form under chapter 35.17 RCW; or council-manager under chapter 35.18 RCW.