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Bob Ferguson

AGO 1949 No. 173 - Dec 6 1949
Attorney General Smith Troy


A referendum may be had in a third class city operating on the commission plan of government of an ordinance regulating traffic on a street carrying a state highway notwithstanding the approval of the ordinance by the Director of Highways.

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                                                                December 6, 1949

Honorable Edwin A. Henderson
Representative, 22nd District
622 East Fourth Street
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 173

Dear Sir:

            Receipt is acknowledged of your letter of November 21, 1949 requesting our opinion as to whether a referendum may be had upon an ordinance of the city of Olympia providing for one way traffic on the street by which U.S. Highway No. 410 passes through the City of Olympia.

            Our conclusion on this question is that such a referendum may be legally had.


            Olympia is a city of the third class operating under the commission form of government.  § 22, chapter 116, Laws of 1911 [Rem. Rev. Stat. 9111] provides for the manner in which ordinances shall take effect in cities operating under the commission form.  That statute provides in part:

            "No ordinance passed by the commission, except when otherwise required by the general laws of the state of Washington or by the provisions of this act, except an ordinance for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency and is passed by unanimous vote of the commission, shall go into effect before thirty days from the time of its final passage, and if during said thirty days a petition signed by electors of the city equal in number to at least twenty-five per centum of the entire vote cast for all candidates for mayor at the last preceding general municipal election at which a mayor was elected, protesting against the passage of such ordinance be presented to the commission, said ordinance shall thereupon be suspended from going into operation, and it shall be the duty of the commission to reconsider such ordinance and if the same is not entirely repealed, the commission shall submit the ordinance as is provided by subsection 'b' of § 9110, to the vote of the electors of the city, either at the general election or at a special municipal [[Orig. Op. Page 2]] election to be called for that purpose, and such ordinance shall not go into effect or become operative unless a majority of the qualified electors voting on the same shall vote in favor thereof. . . ."

            We are not advised whether the ordinance referred to in your letter contained an emergency clause and it is assumed that it did not.  The statute quoted is broad enough to permit the reference of any ordinance not of an emergency nature.  Chapter 220, Laws of 1949, amended § 61, chapter 187, Laws of 1937 [6450-61 Rem. Supp. 1945] in such manner that provision is made for the state Department of Highways to designate streets by which state highways pass through certain cities as a part of the highway system and to maintain those streets.  Subparagraph (k) of the amended section provides:

            "Cities and towns shall regulate and enforce all traffic and parking restrictions on such streets but all regulations adopted after the effective date of this act shall be subject to the approval of the Director before becoming effective.  Traffic control and parking regulations not identical with state laws heretofore adopted by a city or town shall become null and void unless approved by the Director within one year after this act takes effect."

            We are advised by your letter that the ordinance in question has been approved by the Director of Highways.  The section just quoted gives the primary duty of regulating and enforcing traffic and parking restrictions to the cities.  The Director of Highways is given no affirmative authority in this regard.  The director must approve such regulations before they become effective but his power is purely negative.  The fact that he has approved a certain ordinance does not, in our opinion, deprive the people of the right to suspend it by the referendum process.

Very truly yours,

Attorney General

Assistant Attorney General