AGO 1976 No. 7 - Mar 9 1976
CITIES AND TOWNS ‑- ORDINANCES ‑- VOTING REQUIREMENTS FOR PASSAGE OF ORDINANCE IN FOURTH CLASS CITY
Except as provided for in RCW 35.27.270, RCW 35.27.330, RCW 35.33.081 and RCW 35.33.091, an ordinance of a fourth class city (town) may be enacted pursuant to the affirmative vote of a majority of the council present at a particular council meeting at which a quorum is present even though the total number of members thus voting for the ordinance constitutes less than a majority of the total membership of the town council.
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March 9, 1976
Municipal Research Council
4719 Brooklyn Avenue N.E.
Seattle, Washington 98105
Attention !tt Dr. Ernest H. Campbell
Cite as: AGO 1976 No. 7
By recent letter you have requested our opinion on a question which we paraphrase as follows:
Bearing in mind that a town council consists of five members (RCW 35.27.070) and that a majority of the members of such a council constitutes a quorum for the transaction of business (RCW 35.27.280), may a town ordinance be enacted pursuant to the affirmative vote of a majority of the councilmen present at a particular council meeting even though the total number of members thus voting for the ordinance constitutes less than a majority of the total membership of the town council?
Except as provided for in RCW 35.27.270, RCW 35.27.330, RCW 35.33.081 and RCW 35.33.091, to which reference will be made below, we believe that your question is answerable in the affirmative.
[[Orig. Op. Page 2]]
Under the provisions of RCW 35.27.070 the government of a fourth class city, known as a town, is vested in a mayor and a council consisting of five members, together with an elective town treasurer. RCW 35.27.280 then provides that:
"A majority of the councilmen shall constitute a quorum for the transaction of business, but a lesser number may adjourn from time to time and may compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance."
Therefore, all that is required for the existence of a quorum is the presence of three of the five town councilman. Given a situation in which only three such councilmen are, in fact, present at a council meeting, the possibility thus arises that if only the affirmative vote of a majority of the members present is required to pass a particular ordinance, such an ordinance might be enacted on the basis of its approval by only two council-members ‑ a simple majority of those present but less than a majority of the total number of council-members.
Your letter, confirmed by our research, has disclosed four specific situations in which the foregoing could not occur because of statutes to the contrary. First, RCW 35.27.270 provides that:
". . . No resolution or order for the payment of money shall be passed at any other than a regular meeting. No such resolution or order shall be valid unless passed by the votes of at least three councilmen."
Likewise, we find in RCW 35.27.330, relating to enactment of an ordinance or resolution granting a franchise, the following language:
"No ordinance or resolution granting any franchise for any purpose shall be passed by the council on the day of its introduction, nor within five days thereafter, nor at any other than a regular meeting, and no such [[Orig. Op. Page 3]] ordinance or resolution shall have any validity or effect unless passed by the vote of at least three councilmen. . . ."
Thirdly, there is in RCW 35.33.081, dealing with "nondebatable" emergency expenditures by any city having a population of less than 300,000, the following comparable restriction:
"Upon the happening of any emergency caused by violence of nature, casualty, riot, insurrection, war, or other unanticipated occurrence requiring the immediate preservation of order or public health, or for the restoration to a condition of usefulness of any public property which has been damaged or destroyed by accident, or for public relief from calamity, or in settlement of approved claims for personal injuries or property damages, or to meet mandatory expenditures required by laws enacted since the last annual budget was adopted, or to cover expenses incident to preparing for or establishing a new form of government authorized or assumed after adoption of the current budget, including any expenses incident to selection of additional or new officials required thereby, or incident to employee recruitment at any time, the city or town legislative body, upon the adoption of an ordinance, by the vote of one more than the majority of all members of the legislative body, stating the facts constituting the emergency and the estimated amount required to meet it, may make the expenditures therefor without notice or hearing." (Emphasis supplied.)
Finally, under RCW 35.33.091, which deals with other than nondebatable emergency expenditures in cities having a population of less than 300,000, an identical requirement appears in the second paragraph of this statute as follows:
"Such ordinance shall not be voted on until five days have elapsed after its introduction, and for passage shall require the vote [[Orig. Op. Page 4]] of one more than the majority of all members of the legislative body of the city or town."
Further evidence that the legislature knows how to establish such a requirement for the passage of a municipal ordinance when it desires to do so will be found in general statutes governing certain other classes of cities. For example, in the case of third class cities having seven-member city councils as provided for by RCW 35.24.020, RCW 35.24.210, relating to the passage of city ordinances, states that:
"No ordinance and no resolution or order shall have any validity or effect unless passed by the votes of at least four councilmen."
Similarly, RCW 35A.12.120, which pertains to noncharter code cities operating under a mayor-council plan of government, provides that:
"The passage of any ordinance, grant or revocation of franchise or license, and any resolution for the payment of money shall require the affirmative vote of at least a majority of the whole membership of the council."
Conversely, the common-law rule (which, in our state, is applicable in the absence of a statute to the contrary1/ is to the effect that once a legal quorum of the members of a multimember body has come into existence, action may be taken by that body on the basis of an affirmative vote by a simple majority of the members present. See, 56 Am.Jur.2d, Municipal Corporations, § 163, and cases cited therein; see, also, 4 McQuillin, Municipal Corporations, § 13.31b [[Orig. Op. Page 5]] wherein the following principles are set forth:
"Where the law relating to the particular subject does not specify the vote required to do the particular act, a majority vote is sufficient. In passing resolutions or motions of a temporary or mere ministerial nature a majority of a legal quorum is usually sufficient, but in enacting ordinances or resolutions of a permanent character a majority vote of the constituent members of the body may be required. If the law governing the body provides that certain acts may be done only by a majority of the members appointed or elected to the body, it is apparent that the acts specified may not be done legally by a bare majority of a quorum, or of members present. . . ."
Although we are aware of no Washington cases in point, we have no reason to doubt the applicability of the foregoing principles to the situation of a town council in our state. If the legislature desires to require the concurrence of a majority, or other specified number, of the total membership in order to pass a particular ordinance it clearly possesses the power to impose such a requirement; and, as above indicated, has shown by its past acts that it knows how to do so. In the absence of such a legislative requirement (as exemplified by the four statutes pursuant to which we have qualified our affirmative answer to your question) it is thus our opinion that a valid town ordinance may be enacted at a council meeting at which only three members of the council are present if voted for by at least two of those council-members.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
DONALD FOSS, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/Accord, RCW 4.04.010 which reads as follows:
"The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."