Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1973 No. 15 -
Attorney General Slade Gorton


The provisions of § 7, chapter 218, Laws of 1973, Ex.Sess., under which gambling activities licensed by the state gambling commission may be prohibited by a first class city, do not extend to cities in excess of twenty thousand which have adopted the optional municipal code.

                                                              - - - - - - - - - - - - -

                                                                  June 26, 1973

Honorable Christopher T. Bayley
Prosecuting Attorney
King County Court House
Seattle, Washington 98104

                                                                                                                 Cite as:  AGO 1973 No. 15

Dear Sir:

            This is written in response to your recent letter requesting our opinion on several questions relating to chapter 218, Laws of 1973, Ex. Sess., which, as of July 16, 1973, will regulate gambling activities throughout the state of Washington.  The question here to be dealt with1/ may be paraphrased as follows:

            May those cities in King county with populations in excess of 20,000 inhabitants which have adopted the optional municipal code (Title 36A RCW) prohibit the conduct of gambling activities within their jurisdictions which have been licensed by the state gambling commission under the authority of § 7, chapter 218, Laws of 1973, 1st Ex. Sess.?

            We answer this question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]


            Chapter 218, Laws of 1973, 1st Ex. Sess., is an act legalizing certain lotteries and other gambling activities in the manner contemplated by Amendment 56 to the state Constitution which provides:

            "The legislature shall never ((authorize any lottery or)) grant any divorce.  Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon."

            In accordance with Article II, § 1 (Amendment 46) of the Constitution, this enactment will become effective at 12:00 midnight on July 15, 1973,2/ or ninety days after adjournment of the session at which it was enacted.  Overall responsibility for its administration will be vested in a five‑member "Washington State Gambling Commission" which is provided for in § 4 of the act, and under § 7 this commission is authorized to issue licenses to bona fide charitable or nonprofit organizations approved by it to conduct bingo games, raffles and amusement games.  The commission is further authorized by this section to license the use of punch boards and pull-tabs both by such bona fide charitable or nonprofit corporations and by any other person, association or organization approved by it and meeting the requirements of the act and any rules and regulations promulgated thereunder.

            This section of the act then goes on in the first of several provisos to state, however, that:

             [[Orig. Op. Page 3]]

            ". . . any license issued under authority of this section shall be legal authority to engage in the gambling activity for which issued throughout the incorporated and unincorporated areas of any county, unless a county,or any first class city located therein with respect to such city, shall prohibit such gambling activity: . . ."  (Emphasis supplied.)

            Your question, in essence, is whether a city with a population in excess of twenty thousand which has adopted the optional municipal code may be deemed a "first class city" for the purposes of this proviso.  Our negative answer thereto is based upon the proposition that although such cities and all others operating under that optional code are governed, generally, by the same rules with respect to the scope of their powers as apply to "first class cities,"3/ this does not cause them to be, themselves, cities of this particular class.

            In order to constitute a first class city, a municipality must specifically incorporateas such under the procedures set forth in chapter 35.03 RCW, the first section of which (RCW 35.03.010) reads as follows:

            "Any portion of a county, which portion contains not less than twenty thousand inhabitants and which is not incorporated as a municipal corporation, may become incorporated under the provisions of this chapter, and when so incorporated, shall have the powers conferred, or that may hereafter be conferred, by law upon cities of the first class."

            See, also, RCW 35.22.010 which states that:

            "Cities of the first class shall be organized and governed according to the law providing for the government of cities having a population of twenty thousand or more inhabitants in accordance with Article II, section 10 of the state Constitution."

             [[Orig. Op. Page 4]]

            The reference in this section to Article XI, § 10 of the state Constitution is, in turn, a reference to that portion of the Constitution which permits certain cities to adopt, and operate under, their own "home rule" charters whereby they can obtain legislative powers as broad as those of the state ‑ except when restricted by enactments of the state legislature.  Winkenwerder v. Yakima, 52 Wn.2d 617, 622, 328 P.2d 873 (1958).  At the present time the only cities of 20,000 or more inhabitants which have done so and, thus, may now properly be referred to as "first class cities" are Seattle, Tacoma, Spokane, Yakima, Aberdeen, Bellingham, Everett, Bremerton, Richland, and Vancouver ‑ only the first of which, of course, is located in King county.

            Municipalities which were either incorporated or are otherwise operating under the optional municipal code, on the other hand, are no longer referred to as cities of any designated numerical class (i.e., first, second, third or fourth class cities) but are, instead, classified, simply, as either noncharter code cities or charter code cities.  See, RCW 35A.01.010, 35A.01.020 and 35A.01.030.  A noncharter code city is defined in the second of these three statutes as

            ". . . one, regardless of population, which has initially incorporated as a noncharter code city, subject to the provisions of this title, or is an incorporated municipality which has elected, under the procedure prescribed in this title, to be classified as a noncharter code city and to be governed according to the provisions of this title under one of the optional forms of government provided for noncharter code cities."

            Similarly, a "charter code city" is defined by RCW 35A.01.030 as,

            ". . . one having at least ten thousand inhabitants at the time of its organization or reorganization which has either initially incorporated as a charter code city and has adopted a charter under the procedure prescribed in this title; or which, as an incorporated municipality, has elected to be classified as a charter code city and to be governed according to the provisions of this title and of its adopted charter."

             [[Orig. Op. Page 5]]

            In its enactment of § 7, chapter 218, supra, the legislature must, of course, be presumed to have been fully aware of its own prior acts classifying all incorporated cities and towns as either first, second, third or fourth class cities or as charter or noncharter code cities.  Accord,State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937), and cases cited therein. And yet with this presumptive knowledge, the legislature chose to use only the term "first class cities" in designating those cities which would be permitted, under the act, to prohibit such gambling activities as are licensed by the state gambling commission.

            To read the proviso in which this terminology appears as also including either of the two above noted categories of code cities would be to read language into the act which the legislature must be deemed to have chosen not to include ‑ and this we simply cannot do by construction under the rules set forth in such cases asState ex rel. Thigpen v. City of Kent, 64 Wn.2d 823, 394 P.2d 686 (1964), and other cases cited therein.  Furthermore, to extend this proviso to include, by implication, code cities as well as first class cities would run contrary to certain other well-established rules of statutory construction dealing, specifically, with the interpretation of a proviso.  First, as stated inTabb v. Funk, 170 Wash. 545, 17 P.2d 18 (1932)

            ". . . provisos are always strictly construed.  They derive nothing by implication.  Sackman v. Thomas, 24 Wash. 660, 64 Pac. 819; Tsutakawa v. Kumamoto, 53 Wash. 231, 101 Pac. 869, 102 Pac. 766.  In the former case it is said:

            '. . . a proviso carves special exceptions only out of the enacting clause, and those who set up any such exception must establish it as being within the words, as well as within the reason, thereof.'"

            And, secondly, seeIn re Hoss' Estate, 59 Wash. 360, 109 Pac. 1071 (1910), quoting from 26 Am. and Eng. as follows:

            "'The office of the proviso generally is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview; its office is not to confer a power, or as a general rule to enlarge the enactment to which it is appended so as to operate as a substantive enactment itself;' 26 Am. & Eng. Ency. Law (2d ed.) 678."

             [[Orig. Op. Page 6]]

            If the legislature at some later time desires to amend § 7, supra, so as to extend the scope of the first proviso therein to cover other classes of cities, it is certainly free to do so; but until this is done, we must advise you that, in our best judgment, your question (as above paraphrased) is answerable in the negative.  Insofar as King county is concerned it therefore follows that, since Seattle is the only first class city located therein at the present time, any action designed to prohibit such gambling activities as may be licensed by the state gambling commission under § 7,supra, in any other areas of that county will have to come from the county itself, rather than from its other cities.

            We trust the foregoing has been of some assistance to you.


Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Although your request actually contains a total of three questions, your second and third inquires (involving § 11 of the subject act) cover the same points as does a question we have earlier been asked by the prosecuting attorney of Snohomish county.  Therefore, we will answer those questions in our response to that request, which we also hope to have ready for issuance soon, and will direct ourselves here only to this one question relating to the regulation of gambling by certain cities under § 7.

2/Accord, AGLO 1973 No. 63 [[to Richard O. White, Code Reviser, Statute Law Committee on June 8, 1973 an Informal Opinion AIR-73563]].

3/See, AGO 1972 No. 24 [[to Irving Newhouse, State Representative on December 22, 1972]], copy enclosed, at p. 7.