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Bob Ferguson

AGO 1954 No. 212 - Feb 23 1954
Attorney General Don Eastvold


Proposed amendment, Sec. 33-A, to the Bellingham charter could not be validly passed at the general city election to be held March 9, 1954.  Consequently, it should not be placed upon the ballot.  The petition, because of its language, could not be held in abeyance and submitted to the voters at a later election, although this would ordinarily be permissible.

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                                                                February 23, 1954

Honorable Malcolm McBeath
State Representative
319 E. Champion Street
Bellingham, Washington                                                                                         Cite as:  AGO 53-55 No. 212

Dear Sir:

            Answering your letter of February 20, 1954, we advise that the proposed amendment to the Bellingham charter designated Sec. 33-A, cannot be validly passed at the general city election to be held March 9, 1954.  Consequently, the resolution should not be placed upon the ballot.  We also advise that the proposition cannot be submitted to the voters at a later election on the basis of the petitions now on file with the city clerk.


            According to the information available to us, petitions for amendment of the Bellingham charter were signed by the requisite number of voters and presented to the city clerk more than thirty days prior to the coming general election.  Publication commenced less than thirty days prior to the date of that election.  The question is whether or not this proposition should be on the ballot at the March 9th election.

             [[Orig. Op. Page 2]]   Article 11, § 10, of the state constitution requires that notice of election upon charter amendments be given in the same manner as notice for the election upon original adoption of the charter.  This provision is mandatory.  State ex rel. Linn v. Superior Court, 20 Wn. (2d) 138.  Furthermore, the notice required is the same as that required for notice of election on the original charter, including publication of the proposed amendment for the full thirty day period prior to the election.  Wade v. Tacoma, (1892) 4 Wash. 85.

            The provisions of the constitution as construed by the supreme court are the paramount law of the state.  Regardless of any conflicting provision of the city charter, or of any statute, the notice provisions of the constitution prevail and must be complied with.  We are advised that the publication is being carried in a daily newspaper, a weekly newspaper, and on two radio stations.  The question is then posed, what effect, if any, does the use of additional media have upon the requirement relating to length of publication.  The additional coverage, although commendable, has no effect whatever, upon the publication time required by the constitution.  Under the circumstances indicated in your letter the proposed charter amendment cannot become effective, even if approved by the voters, because of failure to publish the proposed amendment for the period required by the constitution.  The measure should not be permitted to appear upon the ballot.

            One final question has been presented.  Does the petition have any validity whatever, and, if so, when may it be acted upon?  In State ex rel. Linn v. Superior Court, supra, at page 155, the supreme court held that a petition which could not be placed upon a city general election ballot was still valid, and could be submitted to the voters at some subsequent election.  And inState ex rel. Hindley v. Superior Court, 70 Wash. 532, it was held that a chapter amendment could be submitted at a special election, since the constitutional provision that it "may" be submitted at "any general election" is permissive and does not exclude other methods.  Consequently, the rule is that, under Constitution, Article XI, § 10, such a petition could, if it does not qualify for the general election, be held in abeyance and be submitted to the voters at a later election, including a special election held for that purpose.

            In reading this particular petition we note that it provides expressly for increasing the salary of the mayor "commencing with the term of office beginning in the year 1954."  It is now impossible to put this provision into effect because the  [[Orig. Op. Page 3]] mayor will be elected in March, and Constitution, Article XI, § 8 prohibits any increase in his salary after his election, or during his term of office.  This charter amendment cannot now come into effect before the new mayor has been elected for the next term.  Consequently, he could not receive the increased salary during the coming term, as provided in the proposed amendment.  Obviously, that objective of the amendment is now thwarted.  The election of March 9, 1954, is the latest one at which this proposal could be adopted by the voters and still give effect to all its provisions.

            It is an inescapable conclusion that, because of the language of the amendment itself, the petition was a request to the council to put the matter on the ballot not later than the general election of March 9, 1954.  For this purpose, the efficacy of the petition is spent.  It follows then, that it cannot be acted upon at all.

            In our opinion, the proposal is not entitled to appear upon the city general election ballot, nor could the measure be submitted to the voters at a later election on the basis of the petition now on file with the city clerk.

Very truly yours,

Attorney General

Assistant Attorney General