ELECTIONS ‑- CHANGE OF FORM OF MUNICIPAL GOVERNMENT ‑- TIME NEWLY ELECTED COUNCILMEN TAKE OFFICE

ELECTIONS ‑- CHANGE OF FORM OF MUNICIPAL GOVERNMENT ‑- TIME NEWLY ELECTED COUNCILMEN TAKE OFFICE

Where a city decides to change its form of government from a commission to the council-manager form a council is elected at the time of the special election on the proposition.  The councilmen-elect assume office on the 30th day following issuance of certificates of election and serve an abbreviated term until the councilmen elected at the next regular municipal election take office.

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                                                                November 9, 1955

Honorable Hewitt A. Henry
Prosecuting Attorney
Thurston County
310 Courthouse
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 159

Dear Sir:

            We have your request of October 18, 1955, for an opinion concerning chapter 337, Laws of 1955, which relates to special elections for the adoption of a council-manager form of city government.

            We understand that petitions have been filed for such an election with the clerk of the city of Olympia, and the election date has been set by the mayor for December 13, 1955.

            You point to what appears to be a conflict between §§ 12 and 23 of chapter 337.  You ask our opinion, assuming that the proposition to adopt the council-manager form of government in Olympia carries, on when the councilmen-elect will succeed the city commissioners.

            It is our opinion that the newly elected members of the council, if the electors decide on a change of form of government for Olympia, should take office on the 30th day following issuance of certificates of election.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Section 23, chapter 337, Laws of 1955, provides in part as follows:

            "Upon the filing of a petition for the adoption of the council-manager plan of government, or upon resolution of the council to that effect, the mayor, only after the petition has been found to be valid, by proclamation issued within ten days after the filing of the petition or the resolution with the clerk, shall submit the question at a special election to be held at a time specified in the proclamation, which shall be as soon as possible after the sufficiency of the petition has been determined or after the said resolution of the council has been enacted, but in any case not less than ninety days before the next regular municipal election therein.  All acts necessary to hold this election, including legal notice, jurisdiction and canvassing of returns, shall be conducted in accordance with existing law. Declarations of candidacy for city or town elective positions under the council-manager plan for cities and towns already in existence shall be filed with the city clerk not more than forty-five nor less than thirty days prior to said election.  Any candidate may file a written declaration of withdrawal at any time within five days after the last day for filing a declaration of candidacy.  All names of candidates to be voted upon shall be printed upon the ballot alphabetically in group under the designation of the title of the offices for which they are candidates.  There shall be no rotation of names.  The said newly elected officials shall assume office on the thirtieth day following the issuance of certificates of election and shall continue in office until their successors are elected and qualified at the next general municipal election to be held on the second Tuesday of March on the first even-numbered year following said special election:  * * *"

             [[Orig. Op. Page 3]]

            It seems clear that the legislature intended that at the time of the special election on the proposition to change the form of government, a council should be elected.  In the event the proposition carries the councilmen-elect would assume office for an abbreviated term until their successors are elected and qualified.

            Section 12, chapter 337, Laws of 1955, provides as follows:

            "If the majority of the votes cast at an election for organization on the council-manager plan favor the plan, the city or town at its next regular election shall elect the council required under the council-manager plan in number according to the population of the municipality.  They shall take office at the time provided by general law."  (Emphasis supplied)

            Section 2, chapter 55, Laws of 1955, provides that all city and town general elections, other than Class AA or Class A counties, shall be held on the second Tuesday of March in the even-numbered years.

            RCW 29.13.050 provides that the term of every city officer elected to office on the second Tuesday of March shall begin on the first Monday in June following his election.

            Our evaluation of the legislative intent in enacting chapter 337, Laws of 1955, by employing the Olympia situation as an example, may be stated as follows:

            1. A valid petition to adopt the council-manager plan is filed.

            2. The mayor, by proclamation, specifies the time of a special election.

            3. Declarations of candidacy for council are filed.

            4. If the proposition to adopt the council-manager carries, the seven successful candidates for city council serve as an interim council from thirty days after issuance of their certificates of election until June 4, 1956.

            5. On March 13, 1956, the regular biennial municipal election is held.

            6. On June 4, 1956, the seven councilmen elected take office.  The four receiving the highest number of votes serve for four years, and the other three  [[Orig. Op. Page 4]] for two-year terms. Section 3 (2) (c), chapter 337, Laws of 1955.

            We recognize that § 12, chapter 337, Laws of 1955, is susceptible of two interpretations.  To read this section by itself one would assume that after a city elects to organize on the council-manager plan, a council would not be elected until the next regular election.  This construction would be out of harmony with the provisions contained in § 23 of the same act for a special election at which a council is elected for an abbreviated term.

            The alternative interpretation of § 12 is that at the regular municipal election the council shall be elected.  It would succeed the interim council provided for by § 23.  This construction would harmonize the two sections.  It is a cardinal rule of statutory construction that a statute should be construed so as to give effect to each of its provisions.  In case of conflict those susceptible of but one meaning will control those susceptible of two, if the act can thereby be rendered harmonious.  Dennis v. Moses, 18 Wash. 537, 40 L.R.A. 302. Accordingly, we believe the legislature intended § 12 of chapter 337, Laws of 1955, to have a meaning which will authorize the special election provided for by § 23 of the act.

            The remaining question is whether or not the statute, which in effect authorizes the abolishment of the offices of the incumbent commissioners, is constitutional.

            In 3 McQuillin, Municipal Corporation (3d ed.) 422, § 12. 117, the rule is stated as follows:

            "* * * Notwithstanding the officer is elected or appointed for a definite term, no law reducing the salary of an officer, imposing additional duties without increasing compensation, or abolishing the office, will be held unconstitutional as 'impairing the obligation of contract,' or as depriving any person of property 'without due process of law.'

            "All offices are created for the public good and, unless restraint exists in the organic law, are completely [[Orig. Op. Page 5]] subject to the power creating them, and may be changed or abolished."

            InBogue v. Seattle, 19 Wash. 396, it was urged that an act abolishing municipal courts conflicts with § 8, Article 11, of the state constitution.  This section provides in part:

            "* * * 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."

            The court stated, at page 398:

            "Appellant concedes the general proposition that the legislature may at will abolish an office of its own creation, but he insists that by virtue of the foregoing constitutional provision the office, in so far as the duration of the term and salary attaching to it are concerned, is a constitutional office.  We think the language of the constitution determines the question against appellant. While it provides that the salary shall not be increased or diminished during the term, and also that the term shall not be extended beyond the period for which the officer is elected, it nowhere provides that the official term shall not be shortened.  The express mention which the constitution makes of the one subject renders its silence as to the other very significant, and inasmuch as the constitution has not forbidden the shortening of a term, it cannot be said that a legislative enactment which has that effect is against the constitution."

            We conclude that chapter 337, Laws of 1955, is not repugnant to § 8, Article 11 of the state constitution.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY G. ENGEBRETSEN
Assistant Attorney General