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AGLO 1971 No. 68 -
Attorney General Slade Gorton

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                                                                    May 3, 1971
Honorable Daniel J. Evans
Legislative Building
Olympia, Washington 98501                                                               Cite as:  AGLO 1971 No. 68 (not official)
Dear Sir:
            By letter dated April 26, 1971, you have requested our advice with regard to the applicability of our opinion to you of September 28, 1970, to the present situation existing in the town of Milton where, at an election held on April 20, 1971, the mayor and four of the five members of the town council were recalled.  As a result of this action, you have stated,
            ". . . there exists no majority of the town council capable of meeting to fill vacancies in the council and appoint the mayor under RCW 35.27.140."
            RCW 35.27.140, to which you have referred, reads as follows:
            "If a member of the council is absent from the town for three consecutive meetings unless by permission of the council his office shall be declared vacant by the council.  A vacancy in the office of mayor and vacancies in the council shall be filled by a majority vote of the council.  A vacancy in any other office shall be filled by appointment by the mayor.  An appointee filling the vacancy in an elective office shall hold office only until the next general election at which time a person shall be elected to serve for the remainder of the unexpired term except that the person appointed to fill a vacancy in the office of mayor shall serve the unexpired term."
            In our opinion to you [[to Prosecuting Attorney, Island County]]of September 28, 1970, we advised that under a statute presently codified as RCW 43.06.010 (2),  [[Orig. Op. Page 2]] requiring the governor to:
            ". . . see that all offices are filled, and the duties thereof performed, . . ."
            you, as the governor, were authorized to appoint a sufficient number of persons to the council of the city of Tacoma to cause a quorum thereon to exist for the purpose of filling remaining vacancies resulting from the recall of five of the nine members of the council at an election occurring earlier that month.  Before proceeding to consider the applicability of that opinion to the situation presently at hand, involving the town of Milton, we should first consider the question of whether RCW 35.27.140, supra, is the governing statute with regard to the filling of those vacancies which have resulted from the recall election of April 20, 1971.
            As you know, the recall amendment to our state constitution (Amendment 8) was approved by the people at the November, 1912, state general election.  Thereafter, as provided for in § 2 of the amendment, the 1913 session of the state legislature enacted the necessary laws to carry out the provisions of the amendment and to facilitate its operation.  See, chapter 146, Laws of 1913.  Among these provisions was a statute stating that any vacancy resulting from recall of a public officer
            ". . . shall be filled in the manner provided by the constitution and the laws of the state of Washington, or the charter and ordinances of the municipality, as the case may be."1/
             In opposition to the proposition that RCW 35.27.140, supra, contains the governing ". . . laws of the state of Washington . . ." for the filling of vacancies in the town of Milton, some suggestion has been made that these vacancies, instead, should be filled in accordance with RCW 45.20.020 which provides, in material part, as follows:
            ". . . Whenever any vacancy happens in any town office from death, resignation, removal from town or other cause, the town clerk, or in case there is no town clerk, then the chairman or one of the town supervisors shall give notice in writing of such vacancy or vacancies to the board of county commissioners of the county in which such town is situated, and said board, upon such  [[Orig. Op. Page 3]] notice being given to them, or if they know of any vacancy in any town office in any township in their county, shall forthwith fill the vacancy or vacancies by appointment by warrant, signed by the chairman of the board, . . ."
            While it is true that Milton, having been incorporated as a fourth class city under the provisions of chapter 35.27 RCW, is commonly referred to as a "town" in accordance with RCW 35.01.040, we do not believe that it constitutes a "town" as that term is used in RCW 45.20.020, supra.  That statute, instead, deals only with municipalities organized under the now largely obsolete township form of government which was provided for by the legislature under chapter 175, Laws of 1895, and which currently is operative in this state only in certain portions of Spokane county.2/   To the extent that it provides for the filling of vacancies in "town" offices, this statutes, in essence, merely constitutes an implementation of Article XI, § 6 of our state constitution, providing that:
            "The board of county commissioners in each county shall fill all vacancies occurring in any township, precinct or road district office of such county by appointment, and officers thus appointed shall hold office till the next general election, and until their successors are elected and qualified."  (Emphasis supplied)
            Clearly, then, the applicable statute with regard to the filling of vacancies in the offices of city councilman and mayor of the town of Milton is RCW 35.27.140, supra ‑ but, of course, with only one councilman remaining as a result of the recall, the quorum thereon, necessary for the conduct of business, cannot presently be said to exist.  See, RCW 35.27.280.  Therefore, the ultimate question to be determined in this opinion arises; namely, may the governor, under the authority of RCW 43.06.010 (2), supra, here appoint a sufficient number of persons to the council to cause a quorum to exist (i.e., in this case, since the council, under RCW 35.27.070, consists of a total of five members, two) in order to facilitate the making of further appointments, both to the remaining councilmanic positions and to the office of mayor, as provided for thereunder?
            It is our best judgment, based upon the reasoning of our September 28, 1970, opinion, supra, that this question is answerable in the affirmative.  However, in thus concluding  [[Orig. Op. Page 4]] it is necessary that we expressly note and dispose of one factual distinction which currently exists between the Milton situation and the Tacoma situation of last fall.  Whereas in September, 1970, when the Tacoma recall election occurred, our state legislature was not in session, it now, of course, is.  Because of this fact we must return again, as we did in our September 28, 1970, opinion, to a critical analysis of the underlying rationale for the decision of our state supreme court in the case of State ex rel. Gilbert v. Dimmick, 89 Wash. 182, 154 Pac. 163 (1916).
            In that case the court was confronted with a situation resulting from the recall of all three members of the board of commissioners of Yakima county.  Following this recall election, the governor appointed two new county commissioners, who then qualified and assumed office ‑ after which they appointed a third commissioner.  The question of the governor's authority to make the two appointments necessary to establish a quorum, so that the commission could then exercise its clear authority under Article XI, § 6 of the constitution, supra, to appoint a qualified person to fill the third vacancy, was then litigated in a quo warranto action.  In a unanimous en banc decision, the Washington supreme court upheld the authority of the governor to make the two appointments which he had made following the recall election.  In reaching this decision, the court cited both Article III, § 13 of the state constitution and the statute (then, Rem. Bal. Code, § 8988, now RCW 43.06.010 (2)) which we have quoted as the basis for the governor's authority at the outset of this opinion.  The full text of Article III, § 13, reads as follows:
            "When, during a recess of the legislature, a vacancy shall happen in any office, the appointment to which is vested in the legislature, or when at any time a vacancy shall have occurred in any other state office, for the filling of which vacancy no provision is made elsewhere in this Constitution, the governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified."
            At the time the governor made the two county commissioner appointments which were questioned in the Dimmick case, the legislature (as in the case of the Tacoma recall situation of last fall) was not in session; however, at one point in its opinion the court, apparently then thinking in terms of Article III, § 13, supra, expressed the following dicta:
             [[Orig. Op. Page 5]]
            ". . . We think it is plain that if the legislature was in session, and a vacancy should occur in a county office for which the constitution made no provision to fill, that the legislature might fill such vacancy."  (Emphasis supplied)
            However, in support of this rather interesting statement (in view of the fact that nowhere within the constitution is the appointment of county commissioners ". . . vested in the legislature") the court cited only a single case, Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717 (1901).  And all that this case held was that in creating a new county by setting off territory from another county under Article XI, § 3, the legislature might authorize the governor to make the initial appointments of county commissioners to govern the new county until the first county general election.
            Clearly, the legislature does possess the plenary power to spell out, by statute, the manner in which various county or city offices (except, perhaps, in municipalities operating under their own charters) are to be filled ‑ and in this respect, it certainly follows that the current legislative session may enact a law establishing some other procedure than that currently provided for under RCW 43.06.010 (2), supra, for the filling of vacancies such as those which have occurred as a result of the Milton recall election.  However, this is the only significance which we believe should appropriately be attached to the above‑quoted dicta from State ex rel. Gilbert v. Dimmick, supra.  Beyond this, as we explained in some detail in our September 28, 1970, opinion, a reading of the court's opinion in Dimmick in its entirety satisfies us that the true and exclusive basis for its validation of the governor's two appointments to the board of commissioners of Yakima county was the statute now codified as RCW 43.06.010 (2), and not the constitution.  That the statute, and not the constitution, was in fact the true basis for the court's decision is, we think, abundantly clear from the concluding paragraph of the opinion which reads as follows:
            ". . . The act of 1890, above referred to, provides that, in addition to the powers prescribed by the constitution, the governor has power 'to see that all offices are filled, and the duties thereof performed.'  We think it is plain that the legislature had the right to pass this act, and that, where there is no provision in the constitution for the appointment of commissioners of a county, and where a majority of the offices of the board of county commissioners become vacant, then it is within the power of the governor to fill such vacancy by appointment.  This seems so clear that it is not necessary to further inquire into the subject, or discuss decisions from other states upon the question.  We have no doubt that, under the statute of 1890, the governor was authorized to make the appointments which he did make, and that  [[Orig. Op. Page 6]] these officers are de jure officers, and are qualified county commissioners of Yakima county."

            Again, if the legislature now desires to change this procedure in so far as future cases of this type are concerned, it is fully empowered to do so.  However, in the absence of any such change, RCW 43.06.010 (2) remains the governing statute and under it you, as the governor, are required to ". . . see that all offices are filled . . ." including such as became vacant by reason of the April 20, 1971, Milton recall election.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/Section 13, chapter 146, Laws of 1913.
2/For the record, of course, the town of Milton is located in Pierce county.