CITIES AND TOWNS ‑- ADVANCEMENT OF CLASSIFICATION OF A CITY OF THE FIRST CLASS ‑- SUBMISSION TO VOTERS THE QUESTION OF ADVANCEMENT -- ELECTION OF FREEHOLDERS

CITIES AND TOWNS ‑- ADVANCEMENT OF CLASSIFICATION OF A CITY OF THE FIRST CLASS ‑- SUBMISSION TO VOTERS THE QUESTION OF ADVANCEMENT-- ELECTION OF FREEHOLDERS

1. The vote of the electors on the question of advancement of a city to the first class is advisory only.

2. An ordinance is ineffective which limits the freeholders elected to frame a charter to a function only after a favorable vote for advancement.

3. Freeholders, once elected, may proceed to frame a charter in spite of a negative vote by the electorate on the question of advancement.

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                                                                   June 17, 1953

Honorable Donald H. Webster
Director
Bureau of Governmental Research Services
266 J. Allen Smith Hall
University of Washington
Seattle 5, Washington                                                                                                                Cite as:  AGO 53-55 No. 67

Dear Doctor Webster:

            We have your request for an opinion on the following questions:

            1. Does the question of advancement of a city to a city of the first class constitute the exercise of a legislative power that is subject to referendum?

            2. May a city commission of a city of the third class, operating under the commission form of government, submit an ordinance to the electorate of that city for approval or rejection containing the following proposition:

            "The classification of the city of        should be changed from a city of the third class to a city of the first class, subject to the understanding  [[Orig. Op. Page 2]] that if the majority of the voters are not in favor of such change in classification, the freeholders elected at the election on which the change in classification is voted upon will not serve as freeholders, and if the majority of the voters at such election favor a change in classification to a city of the first class, but later reject the proposed charter prepared by the freeholders elected at such election, the city of       shall continue to be a city of the third class operating under the Commission form and not become a city of the first class notwithstanding the fact that a majority of the voters voted in favor of a change in classification to a city of the first class in such election held prior to the election to approve or reject the proposed charter."

            3. At the same election at which this ordinance is submitted, may freeholders be elected to draft a charter in contemplation of the approval of a change in classification at such election to a city of the first class?

            Our conclusions may be summarized as follows:

            In our opinion your first two questions are answered in the negative.  Freeholders may be elected at the same time the question of advancement is submitted to the voters, however, once elected, they may proceed to frame a charter.

                                                                     ANALYSIS

            Article XI, § 10 of our state constitution provides in part as follows;

            "* * * Any city containing a population of twenty thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had at which election there shall be chosen by the qualified electors of said city, fifteen freeholders thereof, * * *"

             [[Orig. Op. Page 3]]

            The legislature has implemented this constitutional provision by chapter 248, Laws of 1907, which provides that any city,

            "* * * which hereafter on the first day of the month of January in any year have, according to an official report or abstract of the then next preceding federal or State census, more than twenty thousand inhabitants shall constitute the first class, and shall be organized and governed under the laws relating to cities authorized to frame and adopt their own charters; * * *"

            A complete statutory procedure is provided for the adoption of a charter and organization of a city of the first class.  This procedure is found in RCW 35.22.030et seq., (Laws of 1890, page 215, section 1).  There are no statutory provisions for the organization of a first class city on any basis other than under a charter, nor are there contained in either section 11, Article X, of the state constitution or chapter 35.22 RCW, provisions for the submission to the voters of the city the question of advancement for a city of the first class prior to the election of freeholders.

            The general rule relative to the advancement of cities to a higher class is stated in McQuillin on Municipal Corporations (Third Edition) section 3.10, as follows:

            "* * * In the absence of a valid regulation to that effect, a city or town on attaining the population of a municipal corporation of a higher class or grade does not thereby ipso facto become a corporation of such class or grade.  The necessary procedure to compass the advancement is usually prescribed in detail, and must be followed to accomplish a change of class.  The prescribed population is jurisdictional, in the absence of which proceedings raising a municipality from one class to a higher class are void.  In addition to the prescribed population, certain legal steps are often required on the part of the municipality which desires to avail itself of the charter applicable to the class it wishes to enter."

             [[Orig. Op. Page 4]]

            RCW 35.06.030 as derived from section 16, chapter 7, Laws of 1890, provides that a town desiring to advance to a city of the third class, or a city of the third class to a city of the second class, having the population requisite for such advancement shall submit the proposition to the voters.  Our Supreme Court inState ex rel. Yakima v. Clausen, 116 Wash. 620, 622, has said that cities must comply with the statutory requirement in order to obtain advanced classification.  However, this section, by its terms, is not controlling in the question of advancement of a city to a city of the first class.  Furthermore, section 23, chapter 7, Laws of 1890 provides 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 section ten, article eleven (11) of the constitution of this state."

            Page 216, Laws of 1890, section 3 (RCW 35.22.050 et seq.,) provides the procedure for the organization of first class cities.  There is no procedure contained therein for submission to the electorate of the initial proposition of advancement.

            The city of Walla Walla is presently functioning under the commission form of government.  The statute covering this form of government provides in section 22, chapter 116, Laws of 1911 (RCW 35.17.230 et seq.,) that:

            "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, * * * 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 * * * protesting against the passage of such ordinance be presented to the commission, said ordinance shall thereupon be suspended from going into operation, * * * and * * * the commission shall submit the ordinance * * * to the vote of the electors of the city, * * *"

            It is the opinion of this office that in keeping with the rules laid down by the authorities cited, that the question of advancement of a city to a city of the first class does not constitute a legislative power that is subject to referendum  [[Orig. Op. Page 5]] under RCW 35.17.230 et seq., cited supra.  The submission of an ordinance on the particular question to the electorate is not mandatory under the statute, (RCW 35.22.050) nor does it provide therein for any such procedure.  A city is not automatically advanced to the first class upon obtaining the requisite population, but merely becomes eligible for such advancement.  It actually becomes a city of the first class when a charter has been adopted and officers have been qualified under the new charter.  AGO 51-53 No. 206.

            The constitution and statutory provisions provide for submission of the charter to the electorate for approval or disapproval.  At that time, the electorate may declare their approval or disapproval of the proposed advancement.  InLangdon v. Walla Walla, 112 Wash. 446, 468, our court said:

            "* * * It seems to us that this ordinance * * * is, in no event, subject to a referendum, because, by its very terms in that regard, and by the express provision of the statute under which it was passed, it is within itself a providing for a referendum.  * * *"

            We find no legislative authority which expressly prohibits the submission of an ordinance on the preliminary question of advancement of a city of the third class to a city of the first class, however, we advise that the effect of such vote is advisory only.

            In response to your second question wherein you quote the proposed ordinance, we advise that such ordinance is ineffective.  The effect of its provisions is to register the attitude of the electorate on the proposition of advancement and, subject to their approval, to provide the authority for the freeholders elected to frame a charter.  We are aware of the expense involved in the election of freeholders and publication of the proposed charter, and the desirability of obtaining the electorate's feeling on the general subject.  However, the quoted sections of the constitution and the statutes governing the organization of first class cities specify that

            "Within twenty days after the filing with the secretary of state of a certificate showing that pursuant to an authorized census, the population of a city is twenty thousand or more, the legislative authority thereof shall provide by ordinance for an election to be held therein for the purpose of electing fifteen freeholders for the purpose of framing a charter for the city.  * * *" (RCW 35.22.050).

             [[Orig. Op. Page 6]]

            "The board of freeholders shall convene within ten days after their election and frame a charter for the city and within thirty days thereafter, they, or a majority of them,shall submit the charter to the legislative authority of the city, which, within five days thereafter, shall cause it to be published in two daily newspapers in the city for a period of thirty days prior to the election thereon for adoption or rejection."  (RCW 35.22.060) (Emphasis Supplied)

            Our Supreme Court inState ex rel. Billington v. Sinclair, 28 Wn. (2d) 575, accepted the rule expressed in Rottschaefer, Constitutional Law, page 49, § 28, as follows:

            "The intention of the legislature as to the mandatory or directory nature of the particular statutory provision is determined primarily from the language thereof.  Words or phrases which are generally regarded as making a provision mandatory, include 'shall,' and 'must.'  On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary.  This is true with the word, 'may.'"

            Although we adhere to the rule that the legislature will not presume a useless act, we advise that by the express provisions of Article XI, section 10 and RCW 35.22.050et seq., the freeholders, once elected, may proceed with the formation of a charter for the city of Walla Walla, and that they are directed to so do by statute.  We suggest, that if the city authorities are in doubt as to the electorate's feeling on the proposed advancement, that the same result could be obtained by public meetings wherein public sentiment may be expressed.

            In answer to your third question, we advise that at the election in which the ordinance of advancement is submitted, the election of freeholders may also be held.  However, upon election, the freeholders may proceed to draft the charter, pursuant to their statutory authority.

Very truly yours,

DON EASTVOLD
Attorney General

PHYLLIS DOLVIN
Assitant Attorney General