CITIES AND TOWNS - COUNCIL-MANAGER PLAN - INCREASE OF COUNCILMEN FROM FIVE TO SEVEN WHERE POPULATION INCREASES TO OVER 2,000 INHABITANTS - TIME FOR APPOINTMENT

CITIES AND TOWNS - COUNCIL-MANAGER PLAN - INCREASE OF COUNCILMEN FROM FIVE TO SEVEN WHERE POPULATION INCREASES TO OVER 2,000 INHABITANTS - TIME FOR APPOINTMENT.

(1) Chapter 76, Laws of 1959, imposes a mandatory duty upon a city council to appoint two additional councilmen after the population of a city increases to over 2,000 inhabitants; (2) the thirty day provision of chapter 76, Laws of 1959, for the appointment of two additional councilmen is directory.

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                                                               December 30, 1959

Honorable Andy Hess
State Senator, 31st District
1414 S.W. 158th
Seattle, Washington                                                                                           Cite as:  AGO 59-60 No. 93

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on certain questions which we paraphrase as follows:

            (1) Does chapter 76, Laws of 1959, impose a mandatory duty upon the city or town council to appoint two additional councilmen after the population of the city or town increases to over 2,000 inhabitants?

            (2) If the answer to question (1) is in the affirmative, is the time provision of chapter 76, requiring appointments to be made not later than thirty days following the release of the population determination, a mandatory or directory provision?

            We answer question (1) in the affirmative and the answer to question (2) is that the time provision is directory.

                                                                     ANALYSIS

            The pertinent sections of chapter 76, Laws of 1959, are herewith set forth:

             [[Orig. Op. Page 2]]

            "SECTION 1 [RCW 35.18.020]

            "The number of councilmen shall be in proportion to the population of the city or town indicated in its petition for incorporation and thereafter shall be in proportion to its population as last determined by the state census board as follows:

            "(1) A city or town having not more than two thousand inhabitants, five councilmen:

            "(2) A city having more than two thousand, seven councilmen.

            ". . .

            "(d) . . .

            "In the event such population determination as provided in this sectionrequires an increase in the number of councilmen, the city or town council shall fill the additional councilmanic positions by appointmentnot later than thirty days following the release of said population determination, . . ." (Emphasis supplied)

            Thus, § 1, chapter 76, Laws of 1959 (RCW 35.18.020), states that the city or town councilshall fill the additional councilmanic positions by appointment in the event the population determination of the state census boardrequires an increase.  In the construction of statutes addressed to public officials, the word "shall" is generally considered as mandatory.  See 67 C.J.S., Officers § 113, wherein the following germane language is found:

            "A statute imposing a positive duty on a public officer will be construed asmandatory. . . ."  (Emphasis supplied)

            The positive duty imposed on the city or town council to appoint additional council members arises from the explicit wording of the statute as quoted heretofore.  The legislature has not clothed the council with discretion to appoint or not appoint additional council members depending on circumstances or conditions then existing in the city or town.  On the contrary, the criterion for additional appointments afforded the city or town council is simply whether the population determinationrequires an increase.  As stated inFaunce v. Carter, 26 Wn. (2d) 211, 215, 173 P. (2d) 256:

             [[Orig. Op. Page 3]]

            "'With reference to powers and duties imposed by statute on public officers, it is often difficult to determine whether they are mandatory or merely directory.  Generally speaking, however, where the provisions affect the public interest or are intended to protect a private citizen against loss or injury to his property, they are held to be mandatory rather than directory.  59 C.J. 1076et seq., § 633; 25 R.C.L. 770 et seq., §§ 17, 18.  Always, however, the prime consideration is the intent of the legislature as reflected in its general, as well as its specific, legislation upon the particular subject.'"  (Emphasis supplied)

            Not only does the statute lay a positive injunction upon the councilmen to appoint additional council members authorized by the population increase, but it also directly affects the public interest which requires council representation commensurate with the population growth in view of the increased demands placed upon city government occasioned by such growth.

            Therefore, it is our opinion that § 1, chapter 76, Laws of 1959,supra, imposes a mandatory duty upon the city or town council to appoint two additional councilmen in the event the population determination of the state census board requires an increase in the number of councilmanic positions by virtue of the population growth of the city or town from under 2,000 inhabitants to over 2,000 inhabitants.

            In our opinion, the provision of the statute to the effect that the appointments be made not later than thirty days following the release of the population determination is merely directory rather than mandatory.  An expert analysis of time provisions in statutes may be found in 3 Sutherland, Statutory Construction, § 5816, p. 101:

            ". . . It is difficult to conceive of anything more absolute than a time limitation.  And yet, for obvious reasons founded in fairness and justice, time provisions are often found to be directory merely, where a mandatory construction might do great injury to persons not at fault, as in a casewhere slight delay on the part of a public officer might prejudice. . .the public interest. . . ."  (Emphasis supplied)

            InState v. Miller, 32 Wn. (2d) 149, 201 P. (2d) 136, our court held that a statute providing that actions against public officers found by the state auditor to have committed malfeasance, misfeasance or nonfeasance in  [[Orig. Op. Page 4]] office, shall be institutedwithin thirty days from the receipt of a copy of the auditor's report, is only directory as to time because of the public interest involved.  On page 155, the court considered the rule expressed in 59 C.J. 1074 § 631, as applicable to the decision of the case and we conclude it is equally applicable here:

            "'Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form.  Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merelywith a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results.'"  (Emphasis supplied)

            The court then cited a number of cases in accord with the above rule and stated on page 155:

            "These cases indicate that statutes fixing the time for official action are but directory and do not forbid action after the expiration of the period mentioned in the statute."  (Emphasis supplied)

            We consider the case of Commonwealth ex rel. Fortney, Dist. Atty. v. Wozney, 192 Atl. 648, 649 (Penn.) (1937), as indicative of the conclusion that the time provision in the statute under consideration should be construed as directory.  The case held that under a statute providing that the borough council fill a council vacancywithin thirty days after the vacancy happens, the council could fill the vacancyalthough the thirty-day period had expired.  The court stated at page 649:

            ". . . The provisions of a statute requiring public officers to act within a specified time are generally regarded as directory, unless time is of the essence of the thing to be done, or the statute indicates that the provision is to be regarded as mandatory. . . ."

            For a similar case see:  Greer v. Asheville, 114 N.C. 678, 19 S.E. 635,  [[Orig. Op. Page 5]] which held that the failure of the board of aldermen of a city to appoint a marshal at their first meeting after election, as required by their charter, did not render the appointment of a marshal at their second meeting invalid, as such provision is merely directory.

            A succinct statement of the law regarding time provisions is found in the case ofVillage of Oakley v. Wilson, 296 Pac. 185, 186, 50 Idaho 334:

            ". . . where a public officer is by law enjoined to perform a ministerial duty within a time certain and neglects to perform it, he may do so, after the expiration of the prescribed time, unless prohibited by somenegative language in the statute, or too late to accomplish the desired result. . . ." (Emphasis supplied)

            The time provision in chapter 76, Laws of 1959, "not later than thirty days" is, of course, couched in negative language by the mere use of the word "not."  However, the "negative language" referred to in the rule above does not apply to the wording of the time provision itself.  That is, there must be something in the statute indicating that the time named was intended as a limitation, before the courts will construe it as such.  State ex rel. Gillespie v. Thursby, 139 So. 372, 376, 104 Fla. 103.  The case ofFirst Nat. Bank of East Palestine v. Pasco, 138 Wash. 309, 312, 244 Pac. 275, draws this nice distinction:

            "'. . . Where a statute directs the doing of a thing in a certain timewithout any negative words restraining the doing of it afterwards, the provision as to time is usually directory, and not a limitation of authority.'"  (Emphasis supplied)

            However, the distinction between negative language used in the time provision itself and negative language which restrains the doing of the act afterwards is best clarified in the case of Bauman v. Guckenberger, 74 N.E. (2d) 369, 371, 372, 148 Ohio State 292 [[148 Ohio St. 292]]:

            "It is a well established rule that a statute providing the time or manner in which a public official shall act is directory, unless the statute contains words importing that such duties shall not be done at any other time, or where such interpretation would impair rights involved.  Provisions as to time limitation, imposed merely with a view to the prompt and orderly conduct of business,  [[Orig. Op. Page 6]] are generally regarded as directory, not mandatory.  32 Ohio Jurisprudence, 938, Section 76."  (Emphasis supplied)

            Section 1, chapter 76, Laws of 1959, supra, is devoid of any language which would require the construction that if the additional council members were not appointed within thirty days after the release of the population determination, they could not be appointed at any other time.

            In conclusion, therefore, it is our opinion that the time provision of "not later than thirty days" was inserted merely with a view to effectuating the prompt and orderly appointment of additional councilmen and, therefore, should be regarded as directory.  It follows, therefore, that the two additional appointments may be made after thirty days from the release of the state census board's population determination to the city council.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP M. RAEKES
Assistant Attorney General