THIRD CLASS CITIES ‑- MAY CITY COUNCIL SUBMIT TO VOTERS QUESTION OF WHETHER WATER SUPPLY SHOULD BE TREATED WITH FLUORINE, AND IF SO, IS RESULT BINDING ON CITY COUNCIL?

THIRD CLASS CITIES ‑- MAY CITY COUNCIL SUBMIT TO VOTERS QUESTION OF WHETHER WATER SUPPLY SHOULD BE TREATED WITH FLUORINE, AND IF SO, IS RESULT BINDING ON CITY COUNCIL?

The city council of third class city may submit to the voters the question of whether the water supply may be treated with fluorine, but, the resulting answer of the people is to be deemed as merely advisory and not binding on the city council or the mayor.

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

                                                                   June 17, 1952

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 327

Dear Sir:

            In your letter of May 21, 1952, you inquire, and we quote from your letter:

            "(1) May the city council of a third class city, by its own initiative, legally submit to the voters at the next regular city primary or city general election, the following question:

            "'Shall the city of        treat the municipal water supply with fluorine?'

            "(2) If your answer to the above is in the affirmative, the second question arises:

            "'If said proposition should be submitted to the voters, would the results be binding upon the city council?'"

             [[Orig. Op. Page 2]]

            It is our conclusion that the city council of a third class city may submit to the voters at the next city primary or city general election the question of whether the city water supply should be treated with fluorine, however, the resulting answer of the vote of the people on said issue is not to be binding on the city council or the mayor, but must be deemed merely advisory.

                                                                     ANALYSIS

            "Municipal corporations possess and can exercise only such powers as are granted in express words, or those necessarily or fairly implied in or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation."

            McGilvra v. Seattle School District No. 1, 113 Wash. 619, 194 Pac. 817, 12 A.L.R. 913;State ex rel. Seattle v. Superior Court, 93 Wash. 267, 160 Pac. 755, L.R.A. 1917-B 354; Windsor v. Mayor and Council, 10 Wash. 4; Dillon on Municipal Corporations, § 84, 4th Ed.

            A study of chapter 35.24 RCW, regarding third class cities, does not reveal any express power authorizing a city council of a third class city to submit to the voters for their ultimate decision the question of whether the city water should be treated with fluorine, nor may the power be implied from any of those powers expressly conferred.  But, to the contrary the powers conferred upon the city council would seem to negative any authority in the city council to refer an issue to the voters for a decision which would be binding on the city council.

            RCW 35.24.210, (§§ 11, 12, 18, chapter 184, Laws of 1915), insofar as pertinent here provides:

            "The enacting clause of all ordinances in a third class city shall be as follows:

            "'The city council of the city of        do ordain as follows:'

            "* * *

            "No ordinance and no resolution or order shall have any validity or effect unless passed by the votes of at least four councilmen.

             [[Orig. Op. Page 3]]

            "Every ordinance which passes the council in order to become valid must be presented to the mayor; if he approves it, he shall sign it, but if not, he shall return it with his written objections to the council and the council shall cause his objections to be entered at large upon the journal and proceed to a reconsideration thereof.  If upon reconsideration five members of the council voting upon a call of yeas and nays favor its passage, the ordinance shall become valid notwithstanding the mayor's veto.  If the mayor fails for ten days to either approve or veto an ordinance, it shall become valid without his approval."

            RCW 35.24.180 (§ 10, chapter 184, Laws of 1915) states in part:

            "* * *

            "All meetings of the city council shall be held within the corporate limits of the city at such place as may be designated by ordinance.  All meetings of the city council must be public."

            RCW 35.24.290 (18), (§ 14, chapter 184, Laws of 1915) provides:

            "The city council of each third class city shall have power:

            "* * *

            "(18) To make all such ordinances, bylaws, rules, regulations and resolutions, not inconsistent with the Constitution and laws of the state of Washington, as may be deemed expedient to maintain the peace, good government and welfare of the corporation and its trade, commerce and manufactures, and to do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter, and to enact and enforce within the limits of such city all other local, police, sanitary and other regulations as do not conflict with general laws;"

             [[Orig. Op. Page 4]]

            In our opinion the meaning to be gathered from the above quoted statutes, is that the legislative power in a third class city is to be exclusively vested in the mayor and city council, and the submission of issues to be finally decided by the voters would be an invalid delegation of the legislative power.  Although, the legislative powers conferred by chapter 35.24 RCW are exclusively vested in the mayor and city council, it may be implied from RCW 35.24.290 (18), supra, that the city council may submit an issue to the voters at a city primary or city general election, but the resulting answer of a vote of the people would be merely advisory and of no binding effect on the city council or mayor.

Very truly yours,

SMITH TROY
Attorney General

STEPHEN C. WAY
Assistant Attorney General