AGO 1987 No. 24 - Nov 23 1987
STATE ‑- SEAT OF GOVERNMENT ‑- BOUNDARIES ‑- STATE AGENCIES ‑- LOCATION ‑- PRINCIPAL OFFICES ‑- BRANCH OFFICES ‑- TEMPORARY LOCATION
The seat of government is the city of Olympia as it existed in 1890. All state executive offices must be located at the seat of government, i.e., in, within, near, or in close proximity to the city of Olympia as it existed in 1890.
The agency head and core administrative functions must be located at the seat of government. Branch offices may be located away from the seat of government.
An agency head and core administrative functions may be located other than at the seat of government on a temporary basis.
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November 23, 1987
Honorable Mary Faulk, Director
Department of General Administration
218 General Administration Bldg., AX-22
Olympia, Washington 98504-0622
Cite as: AGO 1987 No. 24
Dear Ms. Faulk:
By letter previously acknowledged, you requested our opinion on the following questions:
1. Where can the Department of General Administration locate the heads of state agencies under the laws of the State of Washington?
2. Is the entire agency restricted to the area defined in question 1 above?
3. Can the head of an agency be located outside of the area defined in question 1 above on a temporary basis? If so, please define temporary.
We answer question 2 in the negative, question 3 in the affirmative, and question 1 in the manner set forth below.
[[Orig. Op. Page 2] ]
Where can the Department of General Administration locate the heads of state agencies under the laws of the State of Washington?
Under the provisions of RCW 43.82.010, the Department of General Administration is responsible for housing state agencies. The Director of the Department is authorized to purchase, lease, rent or otherwise acquire all real estate required by state agencies. RCW 43.82.010(1). If the property is located in Thurston County, the approval of the State Capitol Committee must be obtained. RCW 43.82.020.
You have asked, in light of this statutory responsibility, where you are to locate office space for the heads of state executive agencies. To answer your question, we must examine what is meant by the constitutional phrase "the seat of government." Where is "the seat of government" located? As used in the Constitution, what does the term "at" describe? Who must be "at the seat of government"?
Article 14, section 1 of the Washington Constitution prescribes the location of the seat of government:
The legislature shall have no power to change, or to locate the seat of government of this state; but the question of the permanent location of the seat of government of the state shall be submitted to the qualified electors of the Territory, at the election to be held for the adoption of this Constitution. . . .PROVIDED, That until the seat of government shall have been permanently located as herein provided, the temporary location thereof shall remain at the city of Olympia.
At the outset, we note the clear limitations presented by this constitutional provision. Article 14, section 1 assigns the decision as to the location and relocation of the seat of government to the voters and withdraws from the Legislature any power to locate the permanent seat of government by statute. Thus, while the Director of General Administration has broad statutory authority to locate the various state agencies, neither the Legislature nor the Director has authority to change the boundaries [[Orig. Op. Page 3] ] of the seat of government.
It is important to understand the historical context surrounding the location of Washington's permanent seat of government. The Washington Territory was created by the Act of March 2, 1853 (the Organic Act), ch. 90, 10 Stat. 172, in which Congress provided that the first legislative assembly should be held at the place selected by the Governor. Issac I. Stevens was appointed Governor on March 17, 1853, and he called for the first legislative assembly to be held in Olympia on February 27, 1854. Governor Stevens chose Olympia because the customs office and the first newspaper (The Columbian) were located there. Further, Thurston was the most populous county on Puget Sound. D. Nicandri & D. Valley, Olympia Wins: Washington's Capitol Controversies 3 (1980). Thus, Olympia was first designated the seat of government by gubernatorial executive order.
In 1855, Governor Stevens notified legislators that the Organic Act provided a $5,000 federal appropriation to be used to erect government buildings. Since the appropriation would lapse if not expended, Governor Stevens requested the funds be used for a temporary capitol in Olympia on land donated by Edmund Sylvester. The legislators agreed and passed an act "to locate and establish the seat of government for said territory . . ." Sylvester v. State, 46 Wash. 585, 587, 91 P. 15 (1907) (quoting from Act of Mar. 2, 1853 (the Organic Act), ch. 90, § 13, 10 Stat. 172, 178). The territorial legislation established the seat of government on a specific parcel of land "in the town of Olympia." Act of Jan. 9, 1855, Laws of 1854, § 1;see 46 Wash. at 588. Thus, the Territorial Capitol Building was located in Olympia.
Congress appropriated $30,000 in 1857 for building a permanent capitol. The monies, however, were never used because of controversy over the location of the permanent seat of government. Among those vying for the seat of government at that time were Olympia, Vancouver, and Steilacoom. D. Nicandri & D. Valley, at 7.
A referendum on the issue was held on July 8, 1861 with the following results: Olympia, 1,239; Vancouver, 839; Steilacoom, 253; Port Townsend, 72; Walla Walla, 67; and Seattle, 22. 1 /
D. Nicandri & D. Valley, at 12.
[[Orig. Op. Page 4] ]
In December 1861, the Territorial Supreme Court held that an 1860 enactment declaring Vancouver to be the permanent territorial capital had to be read in conjunction with the legislative referendum, enacted during the same legislative session. The referendum to the people called for their vote on the location of the capital. The Seat of Gov't Case, 1 Wash. Terr. 115 (1861). The Court, therefore, held that the July 1861 vote by the people selecting Olympia as the capital governed over the legislative bill that had designated Vancouver. 2 /
Hence, the Territorial Supreme Court was to conduct its term at Olympia, the seat of government, since the Organic Act required the Territorial Supreme Court to hold its "term at the seat of government." Act of Mar. 2, 1853, ch. 90, § 9, 10 Stat. 172, 175.
From 1854 to 1890, the controversy continued over the permanent location of the seat of government. At the Constitutional Convention on July 4, 1889, the battle flared again, this time involving some locations in Eastern Washington. The resolution of the controversy was article 14, section 1, adopted August 22, 1889, which provided for the temporary location of the seat of government "at the city of Olympia." The convention delegates settled on a referendum to be put to the voters at the same election to be held for the adoption of the Constitution.
BALLOT. The form of ballot to be used in voting for or against this Constitution, or for or against the separate articles, or for the permanent location of the seat of government, shall be:
1. For the Constitution_______
Against the Constitution_______
2. For Woman Suffrage Article_______
Against Woman Suffrage Article_______
3. For Prohibition Article_______
Against Prohibition Article_______
4. For the Permanent Location of the Seat of Government (Name of place voted for) ____________________ [[Orig. Op. Page 5] ] Journal of the Washington State Constitutional Convention, 1889, at 881-82, (B. Rosenow ed. 1962).
The October 1, 1889 election results were as follows: Olympia, 25,490; North Yakima, 14,711; Ellensburg, 12,833; Centralia, 607; Yakima, 314; and Pasco, 130. First Report of the Secretary of State of the State of Washington, 1890, at 51 (1891). Of these locations, only Pasco was unincorporated. In Thurston County, only Olympia and Tumwater were incorporated cities in 1889, Olympia having been incorporated by legislative act on January 28, 1859. The State was formally admitted to the Union on November 11, 1889. Since under the Constitution the capital location had to receive a majority, a run-off occurred at the next general election for the three cities receiving the most votes in 1889. The vote return on November 4, 1890 was as follows: Olympia, 37,413; Ellensburg, 7,722; North Yakima, 6,276. First Report of the Secretary of State of the State of Washington, 1890, at 52 (1891). Thus, in 1890, the permanent seat of government was located at Olympia pursuant to article 14, section 1.
One more attempt was made to move the seat of government in 1905, when a bill passed both houses calling for a referendum to be placed on the ballot asking: "Shall the permanent location of the seat of government of the state of Washington be changed from Olympia, Thurston county, state of Washington, to Tacoma, Pierce county, state of Washington?" Senate Bill 124, 9th Legislature (1905). Governor Albert E. Mead vetoed the bill on February 27, 1905. Senate Journal, 9th Legislature (1905), at 433.
1(a). What is meant by the phrase "the seat of government" under article 14, section 1?
With this background in mind, we turn to the issues you have raised. First we should briefly review the only Washington case related to this issue. No case in Washington squarely decides what is meant by the phrase "the seat of government" under article 14, section 1. Further, no out-of-state cases can specifically answer the question because of the unique history in Washington and the precise language of our State Constitution.
The Washington State Supreme Court has addressed the issue of which officials have to locate their offices at the seat of government. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954). InLemon, a 5-4 decision, the issue that separated the majority from the dissenters was not the location of the "seat of government" under article 14, section 1. All nine justices clearly [[Orig. Op. Page 6] ] considered Olympia, not Seattle, to be the seat of government. The issue was whether article 3, section 24 of the State Constitution applies to legislatively created state executive offices and agencies or only to the expressly enumerated constitutional officers. The closeness of the decision warrants a restrictive, not an expansive, reading of theLemon majority opinion. With respect to the specific issue before us, there is language in Lemon that warrants our attention. 3 /
Throughout the Lemon opinion, while not deciding the issue, the court appears to equate the phrase "seat of government" with the city of Olympia. For example, noting that the election of 1890 resulted in the seat of government being located at Olympia, the court observed that "[n]o election since then has authorized the removal of the seat of government from Olympia to any othercity." Lemon, 45 Wn.2d at 98 (emphasis added). Further, the court affirmed the Thurston County Superior Court preemptory writ of mandate, which contained the following directive:
NOW, THEREFORE, you, and each of you, are hereby commanded forthwith to return to and thereafter maintainat the capital city at Olympia the offices, together with the books and records, of the respective state agencies, boards, commissions and departments which you severally constitute; . . . .
Id.at 87 (emphasis added). 4 /
We reiterate that Lemon did not purport to define the boundaries of the seat of government. The court was deciding whether agencies had to move from Seattle to Olympia, not whether in or near Olympia would be sufficient to comply with the Constitution. When the court spoke of "Olympia" or "the city of Olympia," it is not clear what specific meaning was intended.
[[Orig. Op. Page 7] ]
LikeLemon, other Washington cases refer to the seat of government as being Olympia. Moen v. Erlandson, 80 Wn.2d 755, 770, 498 P.2d 849 (1972); State ex rel. Schwab v. State Bar Ass'n, 80 Wn.2d 266, 271, 493 P.2d 1237 (1972);State ex rel. O'Connell v. Yelle, 51 Wn.2d 594, 320 P.2d 1079 (1958). But the precise question of what geographical area constitutes the seat of government has not been judicially determined in Washington.
Following the Congressional creation of the Territory of Washington, the legislative assembly met in January 1855 and passed an act "to locate and establish the seat of government for said territory . . ." Sylvester v. State, 46 Wash. 585, 587, 91 P. 15 (1907). The legislative assembly established the seat of government on a specific parcel of land "in the town of Olympia." Act of Jan. 9, 1855, Laws of 1854, §1; 46 Wash. at 588; see also Const. art. 14, §1.
While not decisive, the aforementioned provide some aid in determining what the common understanding of "the seat of government" would have been to the voters in 1890 when they voted for Olympia. This is important in identifying the geographical area because:
The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation and addition.
United States v. Sprague, 282 U.S. 716, 731, 75 L. Ed. 640, 644, 51 S. Ct. 220, 222 (1930); see alsoState ex rel. O'Connell v. Public Util. Dist. 1, 79 Wn.2d 237, 240, 484 P.2d 393 (1971); State ex rel. Lemon v. Langlie, supra.
We now turn to other jurisdictions for assistance. SeeBiggs v. Department of Retirement Sys., 28 Wn. App. 257, 259, 622 P.2d 1301 (1981). In our sister state of Oregon, the Attorney General issued an opinion in 1935 construing a constitutional provision similar to article 3, section 24, in which he concluded that the seat of government was the city of Salem as it existed in 1864 when it was selected as the state capital by the voters.
[I]t is clear that the seat of government of the state is the place where the legislative and principal executive and administrative business of the state is required to [[Orig. Op. Page 8] ] be transacted; in other words, the capital city of the state wherein is located the state capitol and other executive and administrative buildings and the duties of the several principal state officers are performed.
It is well established by the unanimous consensus of judicial authority that the boundaries of the seat of government are those of the city, town or other place designated at the time and by the act of locating and designating the seat of government as such city, town or place, and as so fixed such boundaries remain until changed in the manner provided by law, and the courthouse or other public buildings where the principal functions of government are performed cannot be located outside of such original seat of government unless and until such seat of government is removed, changed or enlarged in the manner provided by law,also that the boundaries of the seat of government are not enlarged by the growth or enlargement of the plat or corporate limits of the city or town designated as the seat of government.
1934-36 Op. Or. Att'y Gen. 501, 503 (emphasis added). In reaching that conclusion, the opinion cites Way v. Fox, 109 Iowa 340, 80 N.W. 405 (1899), a case involving the location of a county seat. Way concerned the unincorporated village of Concord, which was designated as the county seat of Hancock County. Subsequently, Concord was annexed by the neighboring town of Garner, and the county commissioners proposed to relocate the courthouse to a site within Garner, but several miles outside the original limits of Concord. The Iowa Supreme Court held that Concord remained the county seat and that the courthouse must be located in the part of Garner that had formerly been known as Concord.
CitingWay v. Fox, a California case concluded that in the absence of a statute, the boundaries of a city as they existed when selected by the voters were the county seat boundaries. Ventura Realty Co. v. Robinson, 10 Cal. App. 3d 628, 632-33, 89 Cal. Rptr. 117, 119 (1970). See alsoBabcock v. Hahn, 175 Mo. 136, 755 S.W. 93 (1903) (The Missouri Constitution provided that the county seat included any expansions of the county seat's municipal boundaries.).
The Kansas Supreme Court reached the same result in two cases. In the first, Millbrook, an unincorporated town, was made the county seat. Later, when incorporated, it included a much larger area then the original site. When the case was head, all offices, [[Orig. Op. Page 9] ] with the exception of three or four, were no longer located on the original town site. The original town site was mentioned and described in a town plat, and the court concluded that, absent a vote of the people, the county seat boundaries as established in the original town plat could not be changed. State ex rel. Bradford v. Harwi, 36 Kan. 588, 14 P. 158 (1887).
The second Kansas case involved an incorporated city and the Court reached the same conclusion as it had in Harwi.
When acounty-seat is located, its exact location is fixed, and itcannot be changed by the subsequent mutations of the municipal corporation within whose territory it may happen to be located. It can be changed only under the provisions of the constitution and the statutes, and it can be changed only by the consent of a majority of the electors of the county, given at an election duly called and held for that purpose.
State ex rel. Kellogg v. Board of Cy. Comm'rs, 44 Kan. 186, 188, 24 P. 87, 88 (1890) (citations omitted; emphasis added). See also Marengo Cy. v. Matkin, 134 Ala. 275, 32 S. 669 (1902).
These out-of-state cases involve county seats. The common theme in these cases is that if defined boundaries existed (either by incorporation or platting) at the time the county seat was selected, those defined boundaries will constitute the seat of government. If the same approach were taken for state capitals, one would conclude that because Olympia was an incorporated city when selected by the voters in 1890, the seat of government is the city of Olympia as it existed in 1890. This judicial "presumption" could be rebutted. In this area of the law particularly, "every case must stand upon its own bottom." Murdoch v. Klamath Cy. Court, 62 Or. 483, 126 P. 6, 8 (1912). Each state has its own unique history of, and language in, its Constitution.
Thus, in answering your question, we turn to the rules of construction to be used in ascertaining the meaning of constitutional provisions. The phrase "the seat of government" in article 14, section 1 calls for construction because it is not specifically defined in the Constitution. Three rules of constitutional construction are most useful in this particular instance: (1) constitutional provisions should be construed so as to give effect to the purposes for which they were adopted, State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 143, 146 P.2d 543 (1944); (2) the Constitution was written so as to be understood by [[Orig. Op. Page 10] ] the voters; and (3) the words and phrases in the Constitution were used in their normal and ordinary meaning, State ex rel. O'Connell v. Public Util. Dist. 1, 79 Wn.2d 237, 240, 484 P.2d 393 (1971).
With these rules in mind, we turn back to the year 1890. The purpose of locating a permanent seat of government surely was for the general public to know where it could expect to find its capitol, legislative body, supreme judiciary, and principal executive officers. Further, the public could be assured that these functions would be in one central location, readily accessible.
At the time of the election in 1890, Olympia was an incorporated city. An 1855 legislative act had established the seat of government "in the town of Olympia." Act of Jan. 9, 1855, Laws of 1854, §1; seeSylvester, 46 Wash. at 588. The temporary location for the seat of government was the "city of Olympia." Const. art. 14, §1.
To ascertain the ordinary meaning of words, i.e., what the voters understood, we look to the dictionary definition of "seat of government." Webster's Third New International Dictionary 2049 (1981) defines "seat" as: "a place (as a city) from which authority is exercised: capital". Black's Law Dictionary 1212 (5th ed. 1979) defines "seat of government" as: "The state capitol or the town within a district or county where the principal government offices and officers are located; e.g., 'county seat.'" See also Ballentine's Law Dictionary 1150 (3d ed. 1969) ("capital city of a state"); 81A C.J.S. States § 38 (1977) ("term seat of government refers to the capital city").
Construing the words "seat of government" consistent with their ordinary meaning leads to the conclusion that the voters in 1890 would have understood their selection of the seat of government to be Olympia‑-the city. In light of the historical context of the adoption of article 14, section 1, the consistency of the legal authority, and our statutory charge to construe, not legislate, we must conclude that the "seat of government" as used in our Constitution refers to the city of Olympia as it existed in 1890. 5 /
(Attached for your reference is a map of the city of [[Orig. Op. Page 11]] Olympia showing the original city limits.)
Some may suggest that this construction is one of the "original intent" and does not recognize the Constitution as a "living thing" designed to meet the needs of a progressive society. SeeState ex rel. Linn v. Superior Court, 20 Wn.2d 138, 146, 146 P.2d 543 (1944). However, in 1890, in accordance with article 14, section 1, the voters selected Olympia as the permanent seat of government. The issue has never been put to the voters since then. Whether circumstances have so changed as to make a different result seem more desirable is not for us to judge. Nor are we at liberty to construe the Constitution so as to permit a change in the seat of government without voter approval. State ex rel. Munro v. Todd, 69 Wn.2d 209, 214, 417 P.2d 955 (1966). If social, economic, political, or geographical conditions so change as to necessitate a different result, it is nonetheless a power reserved exclusively to the people themselves to amend the Constitution.
When the seat of government shall have been located as herein provided, the location thereof shall not thereafter be changed except by a vote of two-thirds of all the qualified electors of the state voting on that question, at a general election, at which the question of location of the seat of government shall have been submitted by the legislature.
Const. art. 14, § 2. It is clearly beyond the power of the legislative and executive branches to preempt the voters' choice. Thus, we conclude that the seat of government must remain fixed as it was in 1890 until changed by the voters.
1(b). What is meant by the phrase "at the seat of government" under article 3, section 24?
Article 3, section 24 provides:
The governor, secretary of state, treasurer, auditor, superintendent of public instruction, commissioner of [[Orig. Op. Page 12] ] public lands and attorney general shall severally keep the public records, books and papers relating to their respective offices, at the seat of government, at which place also the governor, secretary of state, treasurer and auditor shall reside.
The critical issue is what the phrase "at the seat of government" means, with specific attention to the word "at." 6 /
As earlier noted, Lemon v. Langlie decided what offices are subject to article 3, section 24, but the court did not have a dispute before it as to where "the seat of government" was, the parties having agreed that Olympia, not Seattle, was the seat of government. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954). Thus, there was no need inLemon to precisely define where the agencies were to be housed, and the court did not do so. Throughout the opinion, however, when referring to the permanent seat of government, the court used the term "at" preceding the word "Olympia" and the phrase "seat of government." There are two exceptions in the opinion, 45 Wn.2d at 94, but we discern no apparent intent there to define the term "at" or the meaning of the [[Orig. Op. Page 13] ] phrase "at the seat of government."
We turn again to other jurisdictions for assistance. 7 /
Once again, we look first to the State of Oregon. InLemon, the court cited, discussed, and relied uponState ex rel. McCain v. Metschan, 32 Or. 372, 46 P. 791, 53 P. 1071 (1896). Lemon, 45 Wn.2d at 107-08. Oregon then had a constitutional provision that was more explicit than Washington's article 3, section 24. The Oregon Constitution then provided that "all the public institutions of the state, hereafter provided for by the legislative assembly, shall be located at the seat of government." Or. Const. art. 14 § 3 (amended 1908, 1958; repealed 1972) (emphasis added). The Oregon Supreme Court held that an "insane asylum" was a public institution of the state and therefore could not be located in Eastern Oregon. It had to be located at the seat of government, which was Salem.
Metschan is parallel to Lemon in that both cases concluded [[Orig. Op. Page 14] ] that various governmental agencies and institutions were constitutionally required to be located at the seat of government. The second step of the analysis, what is meant by "at the seat of government," was addressed inMurdoch v. Klamath Cy. Court, 62 Or. 483, 126 P. 6 (1912). The Oregon court there observed that after the Metschan decision and before the 1908 revision of the Oregon Constitution "the penitentiary, insane asylum and other state institutions were . . . erected outside the corporate limits of the capital city." 8 /
The court noted this while similarly concluding that a county courthouse could be located "near or in proximity" to the original county seat. 126 P. at 8. The original county seat was a place named Linkville, which was not incorporated at the time of its legislative selection in 1882. However, in 1879, before its selection as the county seat, a plat of the town of Linkville had been filed and recorded. Thus, there was in 1882 a clearly defined area even though not incorporated. Linkville was selected by the voters as the permanent county seat in 1884 but was not incorporated until 1889. In 1893, the Legislature repealed the act incorporating Linkville and created a new city with larger boundaries called Klamath Falls. The county commissioners then decided to build a courthouse within the city of Klamath Falls, but at a distance of about 1,000 feet outside the boundaries of the original town plat of Linkville. The court inMurdoch noted that the law placed the county seat "at Linkville" but ruled that the phrase "at Linkville" was equivalent to "near or in proximity" to Linkville. Thus, the courthouse could be located outside Linkville.
The California Court of Appeals followed the same rationale inJordan v. Board of Supervisors, 99 Cal. App. 2d 356, 221 P.2d 977 (1950). The court held that a new courthouse could be located outside the present corporate limits of Visalia, the designated county seat. In 1853, the voters had selected Visalia as the location of the county seat. Visalia then had no definite boundaries and was unincorporated. The proposed courthouse was to be located on property one and one‑half miles from the existing courthouse and adjacent to the modern city limits of Visalia. The [[Orig. Op. Page 15] ] court reasoned that the county seat had been fixed not at a city, but at the place known as Visalia. "At," in referring to the place, was held to mean "near to" and not necessarily within. 221 P.2d at 980. 9 /
Again, we look to the three rules of constitutional construction: purpose, understanding of the voters, and normal and ordinary meaning of the words. The purpose of article 3, section 24 clearly was to have the constitutional governmental officers geographically located in close proximity of each other and near the seat of government itself, and the Lemon majority found that the Constitution also requires the same for legislatively created executive agencies. We turn to the dictionary definition to ascertain the ordinary meaning of the term "at," as the courts did inMurdoch and Jordan. Webster's Third New International Dictionary 136 (1981) defines "at" to mean "presence in, on, or near."
When used in reference to place, "at" frequently means "in" or "within," but sometimes denotes nearness or proximity, which is its primary signification, and it is less definite than "in" or "on."
Murdoch, 126 P. at 8.
With these rules of construction in mind and recognizing the limited case law, we conclude that "at" as used in article 3, section 24 means "in, within, near, or in close proximity."
What constitutes "near or in close proximity" is not a matter that can be precisely defined, so we cannot provide bright lines to guide you as the Director of General Administration in carrying out the statutory responsibilities set forth in chapter 43.82 RCW. We can think of no universal standard to be applied because each situation must be reviewed and decided on its own unique set of facts. In doing so, one must keep in mind the purpose behind article 3, section 24‑-to provide a central, convenient location for state business, readily known and available to the public. If you make decisions securing office locations outside the 1890 corporate limits of Olympia, we believe you should consider at least the current means of transportation available to the public, [[Orig. Op. Page 16] ] parking availability, and the location's proximity to other state agencies. We recognize that what is "near" is a function of accessibility for both the public and state agencies, one to another. What would be considered "near" in 1987 is certainly much greater than it was in 1890 and, if trends continue, will be even greater in the next century. 10 /
1(c). What state agencies must be located at the seat of government?
We turn again to article 3, section 24 and, more specifically, the interpretation given this constitutional provision by the Lemon court. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954). This question is the precise one addressed in that case.
The five‑member majority in Lemon held that article 3, section 24 applies to all offices within the executive branch of government and thus includes those later created by the Legislature, which obviously were not referred to in the Constitution. 11 /
The Lemon court concluded that "it was the evident intention of the framers of the constitution and the people who adopted it to require that all of the state executive offices be maintained at the seat of government." 45 Wn.2d at 108. The court reasoned that this interpretation was the one that "the people who adopted it necessarily must have had in mind at that time." Id. at 109.
The four-member dissent in Lemon distinguished between constitutional offices (those listed in article 3, section 1) and offices created by statute (the thirteen state agencies at issue in Lemon). 12 /
They concluded that the location of the latter offices [[Orig. Op. Page 17] ] lies within the exclusive control of the legislative branch of government and, relying on recognized rules of constitutional construction, concluded that article 3, section 24 was not a restriction on that legislative control. 13 /
The dissenters disagreed with the intent accorded the framers of the Constitution by the majority. Id. at 114-15.
Construing a similar constitutional provision, the New Mexico Supreme Court, in a 3-2 decision, agreed with the dissent in Lemon in distinguishing constitutional offices from legislatively created offices. State ex rel. Gomez v. Campbell, 75 N.M. 86, 400 P.2d 956 (1965). The petitioners inCampbell had relied heavily on Lemon in seeking a writ of mandamus to require eleven state boards or commissions to return and maintain their main offices at the capital. While permitting a number of agencies to be housed at Albuquerque rather than the state capital of Santa Fe, the majority cautioned:
[W]e do not reach in this proceeding any question as to whether the locating of executive departments outside [[Orig. Op. Page 18] ] Santa Fe, if pursued to an unreasonable extent, might be in violation of Art. XXI, § 6, 14 /
which makes Santa Fe the capital of the state.
Campbell, 400 P.2d at 964. If for any reason the broad reading of article 3, section 24 in Lemon were to be abandoned, the New Mexico decision suggests that even if some agencies could be located away from the capital, the capital could not be "denuded" of legislatively created state executive agency headquarters.
We again note the closeness of the Lemon decision, 5-4. Nonetheless, theLemon opinion has been the law of this state for over thirty years. For purposes of an Attorney General's opinion, we must proceed on the premise thatLemon represents the current state of the law. Thus, under our State Constitution, as construed in Lemon, all state executive offices must be maintained at the seat of government.
Is the entire agency restricted to the area defined in question 1 above?
Constitutional provisions are mandatory unless specifically declared otherwise. Const. art. 1, § 29. However, we must look to the constitutional provision at issue to determine specifically what is made mandatory.
The governor, secretary of state, treasurer, auditor, superintendent of public instruction, commissioner of public lands and attorney general shall severally keep the public records, books and papers relating totheir respective offices, at the seat of government, at which place also the governor, secretary of state, treasurer and auditor shall reside.
Const. art. 3, § 24 (emphasis supplied).
This provision refers only to the head officers. It uses the term "the" preceding the specific officers and then refers to "their respective offices" in addressing the officer's records. Thus, it is clear that the agency head must be located at the seat [[Orig. Op. Page 19] ] of government. SeeState ex rel. Becker v. Wiley, 16 Wn.2d 340, 133 P.2d 507 (1943). The court inLemon repeatedly made reference to "principal offices." 45 Wn.2d at 84-86, 94. While the court did not decide the precise issue, this language in the opinion appears to be consistent with the language of article 3, section 24.
It is not clear what, beyond the agency head, must be located at the seat of government. It is reasonable to assume that those core administrative functions necessary for the head to operate must also be located at the seat. However, we find no requirement beyond the agency head and that administrative core. We recognize the day has long passed when state government could be housed in one or two buildings. In fact, to further meet the needs of the citizens of this state, branch offices located throughout the state have been created. For example, the Departments of Social and Health Services, Labor and Industries, and Employment Security provide branch offices. These branch offices provide a number of services convenient to the public, which would be thwarted by a requirement that all offices be located at Olympia. We find no basis to conclude that branch offices must be located at the seat of government. While the Constitution is silent on the matter of branch offices, we believe article 3, section 24 implicitly recognizes the potential for such offices by requiring only the heads to be located at the seat.
This reading is consistent with Lemon. There, the court stated that the opinion did not apply to the branch offices of the agencies involved. The petitioners inLemon did not seek to prohibit branch offices from being located away from the seat of government. 45 Wn.2d at 110.
Finally, a legislative construction of article 3, section 24 can be said to exist by virtue of RCW 43.17.050, in which the Legislature authorizes branch offices "at other places than the state capital." We find no contrary constitutional language or intent and thus conclude that only the principal offices, namely the agency head and core administrative functions, of the agencies subject to article 3, section 24 are required to be located at the seat of government.
[[Orig. Op. Page 20] ]
Can the head of an agency be located outside of the area defined in question 1 above on a temporary basis? If so, please define temporary.
Historically, the state capitol has had a number of temporary locations, but all have been within the original city limits of Olympia. 15 /
These temporary locations were necessitated for various reasons, including construction delays, overcrowding, fire, and earthquake. Such events can be expected today just as they occurred between 1854 and 1927. It is reasonable to assume the voters contemplated such circumstances calling for the temporary location of government buildings, particularly in light of this historical background.
The Constitution left to the public the "permanent location of the seat of government". Const. art. 14, § 1 (emphasis added). The purpose and intent behind article 14, section 1 was the "permanent" location of the seat of government. Thus, if good and valid reasons exist for the temporary location of officials away from the permanent location of the seat of government, we see no constitutional prohibition for the same.
You have further asked that we define the term "temporary." The words "permanent" and "temporary" are antonyms and readily occur as such to the ordinary person. Richards v. Metropolitan Life Ins. Co., 184 Wash. 595, 55 P.2d 1067, 1070 (1936). Webster's Third New International Dictionary 2353 (1981) defines "temporary" as "lasting for a time only: existing or continuing for a limited time: IMPERMANENT, TRANSITORY . . ." See alsoHiatt v. Department [[Orig. Op. Page 21] ] of Labor & Indus., 48 Wn.2d 843, 846, 297 P.2d 244 (1956). Thus, the facts and circumstances behind the locating of an agency will determine whether it is in fact a temporary location. For example, an agency head might be located away from the seat of government because the Director of General Administration is unable to secure suitable quarters. If there is a firm plan or intention to relocate the agency head within the foreseeable future, then the location might be considered temporary. If, on the other had, no such firm plan or intention exists, then the "temporary" location is in substance a permanent location.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
CHRISTINE O. GREGOIRE
Deputy Attorney General
*** FOOTNOTES ***
1/Thirteen locations received votes by the public.
2/The Court also indicated that the Legislature did not have the authority to establish Vancouver as the permanent capital without approval by the voters. 1 Wash. Terr. at 120.
3/We recognize that any case must be limited to the issues there present and no exception to this rule is advocated here. State ex rel. Schwab v. State Bar Ass'n, 80 Wn.2d 266, 493 P.2d 1237 (1972);see alsoWilber v. Department of Labor & Indus., 61 Wn.2d 439, 445-446, 378 P.2d 684 (1963).
4/The writ of mandate was modified in only one respect not material to the issue presented here.
5/Some might contend that the "seat of government" is the current city limits of Olympia. However, article 14, section 2 precludes us from reaching such a conclusion. The city limits of Olympia can be changed by annexation, disannexation, merger, or even disincorporation and reincorporation. But those decisions are made by the city government or the citizens of the area. If such changes could alter the state seat of government, then the location of the seat of government would be left to the citizens of Olympia, not "all the qualified electors of the state" as required by article 14, section 2.
6/The State Legislature has determined that the principal offices of certain departments must be maintained "at the state capital."
Each department shall maintain its principal office at the state capital. The director of each department may, with the approval of the governor, establish and maintain branch offices at other places than the state capital for the conduct of one or more of the functions of his department.
The governor, in his discretion, may require all administrative departments of the state and the appointive offices thereof, other than those created by this chapter, to maintain their principal offices at the state capital in rooms to be furnished by the director of general administration.
RCW 43.17.050. Our analysis of the constitutional language "at the seat of government" would apply similarly to the statutory language "at the capital city." The seat of government is commonly regarded as the capital city of a state. Ballentines's Law Dictionary 1150 (3d ed. 1969).
7/The only Washington case referring to county seat boundaries did not directly present the question. In re Staples, 105 Wn.2d 905, 719 P.2d 558 (1986). A superior court judge was charged with a violation of the Code of Judicial Conduct for campaigning to relocate the county seat from Prosser to Kennewick, 35 miles away, which had a large majority of the county's population. The county had constructed a justice center in Kennewick, having received permission from the Chief Justice of the Supreme Court pursuant to RCW 2.08.030 to conduct court sessions there. The Supreme Court order also required a modernization of the Prosser courthouse. Superior Court Judge Fred R. Staples disagreed with an expenditure of funds for the Prosser courthouse and led a campaign to move the county seat from Prosser to Kennewick. An ethics complaint was filed against the judge for his campaign efforts, but the court concluded his actions were within the administration of justice exception to the prohibition against judges engaging in political activities. CJC Canon 7(A). Judge Staples believed that a constitutional crisis was about to occur because the majority of county offices were located in Kennewick, not the county seat of Prosser, and he argued that his actions were to avoid a constitutional confrontation by moving the county seat. The Supreme Court, while recognizing that Benton County Offices now primarily exist in Kennewick rather than the county seat of Prosser, expressly declined to rule on that question, as the issue before them could be resolved without doing so.
8/When former article 14, section 3 of the Oregon Constitution was amended in 1908, it permitted some public institutions to be "located in the county where the seat of government is . . ." The language inMurdoch appears to view this change as ratifying rather than authorizing such locations since the institutions mentioned were in the county rather than the city of Salem when the Constitution was amended.
9/The same result was reached in a California Attorney General's opinion, but on other grounds. 29 Op. Cal. Att'y Gen. 46 (1957).
10/We feel it incumbent to mention that which we believe must be specifically located within the city limits as they existed in 1890‑-the seat or "heart" of state government, namely its capitol. When the issue of relocating the capitol has been present, a strict construction has been accorded the geographical limits of the seat of government. See 1957 Op. Ariz. Att'y Gen. 83. The same is true when the issue has been the relocation of a county seat. See AGLO 1974 No. 36.
11/Educational, reformatory, and penal institutions are specifically referred to in article 13, "State Institutions," rather than being included in article 3, "The Executive," and therefore we consider them to be outside the rule announced in Lemon.
12/At issue in Lemon were the following state agencies: The State Aeronautics Commission, the State Athletic Commission, the State Board of Accountancy, the State Board Against Discrimination in Employment, the State Board of Pharmacy, the State Board of Prison Terms and Paroles, the Director of the State Department of Fisheries, the State Game Commission and the Director of Game, the Director of the State Department of Health, the State Horse Racing Commission, the State Personnel Board, the State Parks Commission, and the State Power Commission.
13/By statute, the Legislature has required the principal offices of the following departments to be located at the state capital: (1) The Department of Social and Health Services, (2) the Department of Ecology, (3) the Department of Labor and Industries, (4) the Department of Agriculture, (5) the Department of Fisheries, (6) the Department of Game, (7) the Department of Transportation, (8) the Department of Licensing, (9) the Department of General Administration, (10) the Department of Trade and Economic Development, (11) the Department of Veterans Affairs, (12) the Department of Revenue, (13) the Department of Retirement Systems, (14) the Department of Corrections, and (15) the Department of Community Development. See RCW 43.17.010, 43.17.050.
14/This provision is similar to article 14, section 1 of the Washington Constitution.
15/The first legislative assembly convened at the corner of Third and Main Street (Capitol Way) in the Parker and Coulter Building. The next several sessions met at the Masonic Temple which had been rented until the Territorial Capitol was ready for the 1856-57 session. Not until 1901 did the State purchase what was to be a permanent structure, the Thurston County Courthouse (the Old Capitol Building). While awaiting construction, the Legislature met at the Armory at Fourth and Adams. The Thurston County Courthouse was damaged on one occasion by fire and on another occasion by an earthquake. The current Capitol Building was readied for the 1927 Legislature. D. Nicandri & D. Valley, Olympia Wins: Washington's Capitol Controversies 5-7, 23, 26, 30 (1980).