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Bob Ferguson

AGLO 1972 No. 60 -
Attorney General Slade Gorton

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                                                                  August 4, 1972
Honorable Warren W. Russell
Prosecuting Attorney
San Juan County
P.O. Box 338
Friday Harbor, Washington 98250
                                                                                            Cite as:  AGLO 1972 No. 60 (not official)
Dear Sir:
            By two letters previously acknowledged you have requested our opinion on several questions relating to county "home rule charter" elections under the provisions of Article XI, § 4 (Amendment 21) of our state Constitution.  We paraphrase your questions as follows:
            (1) In view of the requirement contained in Article XI, § 4 (Amendment 21) that a proposal to elect a board of freeholders to frame a county charter is to be voted upon at a general election, should otherwise properly filed petitions for the election of such persons be deemed fatally defective because they call for the question be put to the voters at a primary election preceding the next general election?
            (2) Where only one legal newspaper is printed in a given county, will the requirement of Article XI, § 4 (Amendment 21) that a proposed county charter be published ". . . in two (2) legal newspapers published in said county, . . ." be complied with by publication of said charter in that newspaper and in some other legal newspaper which is circulated but not printed in the county?
            (3) Must a person, in order to be elected to the office of freeholder under the provisions of Article XI, § 4 (Amendment 21) be an owner of property situated within the county wherein he seeks election?
            We answer questions (1) and (3) in the negative and question (2) in the affirmative for the reasons set forth in our analysis.
             [[Orig. Op. Page 2]]
            Article XI, § 4 (Amendment 21) of our state Constitution delineates the procedures by which any county in the state may frame a "home rule" charter.  Basically these procedures involve, first, the selection of a board of "freeholders" to frame and propose such a charter; and, secondly, the submission of the proposed charter to the voters of the county for their approval or disapproval.
            These procedures may be initiated either by the legislative authority (e.g., county commissioners) of the county or by petitions signed by ". . . registered voters equal in number to ten (10) per centum of the voters of . . . such county voting at the last preceding general election, . . ."  Where this latter procedure is invoked, the Constitution states that:
            ". . .  The petition shall be filed with the county auditor of the county at least three (3) months before any general election and the proposal that a board of freeholders be elected for the purpose of framing a county charter shall be submitted to the vote of the people at said general election, and at the same election a board of freeholders of not less than fifteen (15) or more than twenty-five (25), as fixed in the petition calling for the election, shall be chosen to draft the new charter.  . . ."
            Regardless of whether the procedures to elect a board of freeholders are initiated by the legislative authority of the county or by petition of the voters, the actual election of these persons is governed by the following constitutional language:
            ". . .  [At the freeholders] election there shall be chosen by the qualified voters of said county not less than fifteen (15) nor more than twenty-five (25) freeholders thereof, as determined by the legislative authority, who shall have been residents of said county for a period of at least five (5) years preceding their election and who are themselves qualified electors, . . ."
            Once such a board has been selected, it is required thereafter ". . . to convene within thirty (30) days . . . and prepare and propose a charter for such county.  . . ."  Finally the manner of submitting this proposed charter to the voters is spelled out in the Constitution as follows:
             [[Orig. Op. Page 3]]
            ". . .  Such proposed charter shall be submitted to the qualified electors of said county, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said county and shall become the organic law thereof, and supersede any existing charter, including amendments thereto, or any existing form of county government, and all special laws inconsistent with such charter.  Said proposed charter shall be published in two (2) legal newspapers published in said county, at least once a week for four (4) consecutive weeks prior to the day of submitting the same to the electors for their approval as above provided."
            Question (1):
            Your first question involves the calling of a freeholder election by petition of ten percent of the electors of a county.  You have postulated a case in which the printed petition sheets, which are circulated and thereafter filed with the county auditor, call for submission of the question of electing freeholders, as well as the election thereof, at a September primary election rather than at the next ensuing November general election.  You have asked whether such language on the printed petition sheets renders the petitions fatally defective.
            It is, of course, perfectly clear that a primary election such as that referred to in the petitions you describe is not and cannot be deemed a "general election" within the meaning of Article XI, § 4 (Amendment 21), supra.  See, Plummer v. Gaines, 70 Wn.2d 53, 422 P.2d 17 (1966).  Therefore, irrespective of any recital such as you have described, neither a proposition to elect freeholders nor the actual election thereof can, constitutionally, be submitted to the voters at such a primary election.
            However, nothing in the foregoing case nor in any other decided Washington cases which we have found suggests that a petition for the election of freeholders is to be deemed fatally defective by virtue of the fact that the petitions purport to call for the election to be held at a September primary rather than a November general election.  Moreover, our research has disclosed no decided case in any other jurisdiction involving a factual circumstance such as this.  The only "rule" to be gleaned from decisions in the general area of petitions for election is simply that such  [[Orig. Op. Page 4]] petitions must contain all of the averments necessary to give jurisdiction to call the election.1/   In view of the skeletal provision of Article XI, § 4 (Amendment 21), supra, that ten percent of the voters may ". . . at any time propose by petition the calling of an election of freeholders," without further specific requirements set forth anywhere in either this constitutional section or the election statutes enacted pursuant thereto, we are of the view that a clearly expressed request for a freeholder election is, of itself, sufficient to provide the jurisdictional basis for holding such an election at the next general election.  Therefore, we would regard the recital to which you have referred as mere surplusage, and would conclude that its presence on the subject petitions would not be held by a court to render them fatally defective.  Thus, we answer your first question in the negative.
            Question (2):
            You have next referred to the requirement contained in Article XI, § 4 (Amendment 21) that any proposed charter ". . . shall be published in two (2) legal newspapers published in said county, at least once a week for four (4) consecutive weeks prior to the . . . [election]."  You ask whether this requirement will be met where, due to the existence of only one newspaper which is printed in the particular county, a proposed charter for that county is published in that single newspaper and, in addition, in some other legal newspaper which is of general circulation within the county although not printed therein.
             [[Orig. Op. Page 5]]
            We answer this question in the affirmative for the reasons set forth in AGO 51-53-45 [[to Cliff Yelle, State Auditor on May 23, 1951]](copy enclosed).  While the portion of our state Constitution which was there under scrutiny was Article XI, § 10, relating to the publication requirements for proposed city charters, we think the rationale of this opinion is equally applicable in the present context.  Essentially, we there concluded that the word "published" as used in Article XI, § 10 (the same word as appears in Article XI, § 4, supra) does not denote that the newspapers in which a proposed charter is published must actually be printed within the subject jurisdiction; it is sufficient, in order that the newspapers in which a proposed charter is published qualify under the Constitution, that they be of general circulation within the unit of government whose proposed charter is involved.  Accord, Brown's Estate v. West Seattle, 43 Wash. 26, 85 Pac. 854 (1906).  After reviewing the foregoing case in our former opinion we went on to note "an even stronger case in point" from another jurisdiction; Lewis v. Tate, 210 Ark. 594, 197 S.W. 2d 23 (1946) ‑ a case which we described as follows:
            ". . .  The court therein stated 'the common and ordinary meaning of the word "published", according to Webster's New International Dictionary, is to make public, to make known to the people in general.  It is only public when put in general circulation.'  Earlier in this same opinion the court said 'certainly it was not the intention of the people to penalize a city simply because a weekly newspaper was not printed therein.'
            "It is our opinion that the view of the above court is in harmony with our own, particularly in light of the Brown case, supra, and certainly in keeping with the current decline of daily newspaper publications per city.  Also, to the effect that a newspaper is published where it is in circulation, see Vich v. Bishop, 40 So. (2d) 845 (Ala. 1949).
             [[Orig. Op. Page 6]]
            "We know of no decision in this state which has held that a newspaper is published only where it is printed.  But we have in the Brown case, supra, a sound basis for concluding that a newspaper is published where it has been placed in circulation.  This is the view we adhere to.
            "Our conclusion that the word 'published' in this instance means more than just where the newspaper is printed, we feel more clearly expresses the purpose and intent of the constitutional provision in question.  . . ."
            We regard this 1951 opinion still to be correct.  Accordingly, we advise you that the Article XI, § 4 requirement of publication in two legal newspapers "published" in the subject county will be satisfied by publication in the manner contemplated by your second question ‑ and thus, we answer this question in the affirmative.
            Question (3):
            Repeated for ease of reference, your third question (as paraphrased) reads as follows:
            Must a person, in order to be elected to the office of freeholder under the provisions of Article XI, § 4 (Amendment 21) of the Washington State Constitution, be an owner of property situated within the county from which he seeks election?
            This precise question was previously considered and answered in the affirmative in an opinion written by this office to then State Representative Arlie U. DeJarnatt on June 25, 1970 (copy enclosed) in which we said:
            "The critical language in Amendment 21, supra, is the phrase 'freeholder thereof.'  Read in context, we have no doubt that this phrase means 'freeholder of the county.'  While we have found no decisions of the Washington supreme court construing this phrase, a number of decisions from other states have been located.  Uniformly, these decisions are to the effect that such phrases as 'freeholders of such city or county,' 'freeholders of the county,' or 'freeholders of a municipality,' appearing in statutory or constitutional  [[Orig. Op. Page 7]] provisions relating to eligibility to sign petitions, or to serve in certain offices, etc., mean that the prospective freeholder, in order to be eligible, must own an interest in real property located within the geographical area of the city or county which he is seeking to serve.  See, e.g., Matthews v. The People, 159 Ill. 399, 42 N.E. 864 (1896); Rix v. Johnson, 5 N.H. 520, 22 Am. Dec. 472 (1831); Thornton v. McElroy, 193 Ga. 859, 20 S.E. 2d 254 (1942); and State ex rel. Cain v. Toomey, 27 S.D. 37, 129 N.W. 563 (1911)."
            This conclusion, of course, was based upon the usual presumption of constitutionality which this office attaches to all existing statutes or constitutional provisions until they are otherwise declared by a court of competent jurisdiction.  See, AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]].  In this case, however, we are now faced with just such a contrary court ruling.  In Sorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972), which was decided after the issuance of our opinion to Representative DeJarnatt, the Washington Supreme Court specifically held that the identical requirement of Article XI, § 10 of the state Constitution calling for freeholder status (i.e., ownership of property) within a city in order to serve on a board convened to frame or amend a city charter was void as being in violation of the equal protection clause of the 14th Amendment to the United States Constitution.
            Even though this decision dealt with Article XI, § 10 rather than Article XI, § 4 (Amendment 21), supra, we can see no basis for distinguishing the two provisions and thereby limiting the applicability of the decision to cases involving city charters only.  Accordingly, we must now disaffirm our prior (1970) opinion and conclude that it is no longer necessary that a person, in order to qualify for election to a board of freeholders elected to prepare a proposed county charter, be an owner of property situated within the subject county.
            We trust that the foregoing will be of assistance to you.

Very truly yours,
Thomas F. Carr
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/The decided cases appear restricted largely to questions about signatures on petitions under statutory, rather than constitutional provisions relating to elections.  Nevertheless, these rules are summarized in 26 Am.Jur. 2d, Elections, § 189 as follows:
            "The petition on which any official acts in calling a special election must contain all the averments necessary to give such official jurisdiction to call the election.  However, it is well established that a petition will not be invalidated by trifling errors or omissions, or by unimportant irregularities and defects.  Hence it is not essential that the petition be couched in the exact language of the statute.  A substantial compliance therewith is sufficient.  The principal issue is whether the question was fairly submitted to the voters.  Minor changes may be made in the form of the petition after the signers have affixed their signatures thereto, but an insufficient petition may not be made sufficient by amendment after the time limit for filing the petition has expired."