CITIES AND TOWNS -- FIRST CLASS CITIES -- PUBLICATION OF PROPOSED CHARTERS -- TWO DAILY NEWSPAPERS

AGO 1951 No. 45 - May 23 1951

Attorney General Smith Troy

CITIES AND TOWNS -- FIRST CLASS CITIES -- PUBLICATION OF PROPOSED CHARTERS -- TWO DAILY NEWSPAPERS.

The Constitutional requirement for publication of a proposed charter will be satisfied if the city of Vancouver causes the proposed charter to be published in two daily newspapers having general circulation within the city.

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May 23, 1951

Honorable Cliff Yelle
State Auditor
Olympia, Washington Cite as: AGO 51-53 No. 45

Attention: !ttMr. A. E. Hankins, Chief Examiner, Division of Municipal Corporations

Dear Sir:

This is in answer to an inquiry from your office dated December 26, 1950, in which we were requested to render an opinion as to whether the city of Vancouver, having only one daily newspaper printed therein, could validly make publication of a proposed charter in compliance with Art. 11, sec. 10, of our State Constitution.

Our conclusion may be stated as follows:

ANALYSIS

Before discussing the legal principles applicable to the problem herein, we feel it is important that a few facts of practical significance be borne in mind. According to a pamphlet published June 6, 1950, entitled Officials of Washington Cities, published by the Secretary of State, the following Washington cities have a population close to, or over 20,000: Aberdeen, Bellingham, Bremerton, Everett, Longview, Renton, Seattle, Spokane, Tacoma, Olympia Walla Walla, Yakima, and Vancouver.

[[Orig. Op. Page 2]]

Of this number, we are aware of only four Washington cities, namely, Seattle, Spokane, Yakima, and Walla Walla that have two daily newspapers actually printed within these cities. Thus, ten of the above cities have but one daily newspaper actually printed in the city. At the same time, it is safe to say that in all of the above mentioned cities at least two daily newspapers have general circulation in each of them. In recent years, two of our largest cities, Seattle and Tacoma, have declined from three daily newspapers to two in Seattle, and from two to one in Tacoma. If this be any pattern or trend of the future of daily newspapers, then in all likelihood, daily publications are not going to increase in number in the other cities close to, or over 20,000 in population. These conditions exist today and they must be recognized and considered when interpreting our constitution and statutes. Turning now to the instant problem, we find that the city of Vancouver, well over 20,000 in population, desires to adopt a home rule charter. One of the procedural steps incident thereto is that the proposed charter be published for thirty days in two daily newspapers published in the city.

Art. 11, sec. 10, of our State Constitution provides in part:

"* * * 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, who shall have been residents of said city for a period of at least two years preceding their election, and qualified electors, whose duty it shall be to convene within ten days after their election, and prepare and propose a charter for such city. Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof, and supersede any existing charter, including amendments thereto, and all special laws inconsistent with such charter. Said proposed charter shall be published in two daily newspapers published [[Orig. Op. Page 3]] in said city for at least thirty days prior to the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given for at least ten days before the day of election in all election districts of said city. * * *" (Emphasis supplied)

The question is whether Vancouver, under the above circumstances, could validly comply with the constitutional provisions set forth above. As we view it, the problem concerns the interpretation to be accorded the words "said proposed charter shall be published in two daily newspapers published in the city." More specifically, what does the word "published" mean?

The purpose of this constitutional provision is to insure that all persons who would be affected by a charter shall, before they vote upon it, have been given an opportunity to know its contents. It is simply a provision to guarantee adequate dissemination of the charter's provisions. State ex rel. Linn v. Superior Court, 20 Wn. (2d) 138, 146 P. (2d) 543.

The right to adopt a charter is granted to all cities over 20,000 in population. This right is not qualified, but absolute, if certain procedural steps are complied with. One of these procedural steps, as already stated, is publication of the proposed charter in two daily newspapers published in the city. However, we do not feel, nor are we inclined to believe that the framers of the constitution felt this procedural step should or would be interpreted so as to preclude a city from even attempting to adopt a charter. Stated differently, it is inconceivable to us that a city otherwise qualified to have a home rule charter is to be deprived of this right, solely because there is but one newspaper printed in the city.

In an opinion to the prosecuting attorney of Pacific county, dated April 11, 1925, we held that where a city had no newspaper printed therein, a statute requiring notice of an election to be published in a paper printed in the community was satisfied if the notice was published in any newspaper having general circulation in the city.

The fact that a statute relating to elections was in question there, rather than a constitutional provision in regard to publication of a proposed charter, we feel is not significant.

[[Orig. Op. Page 4]]

In the case ofWade v. Tacoma, 4 Wash. 85, 29 Pac. 983, the same constitutional provision as here was in issue. The result of this case, or the issues therein, we feel are not in point here, and nothing therein compels any particular answer to our problem.

However, the case ofBrown's Estate v. West Seattle, 43 Wash. 26, 85 Pac. 854, is in point and is sufficient authority upon which to base our conclusion. In the above case, a statute required notice of an election be given by publication in a newspaper printed and published in the city. The city, West Seattle at that time, did not have any newspaper actually printed within the city. However, the adjoining city of Seattle did print a newspaper which was circulated and read in West Seattle, and the notice in question was published in that paper. Over the objection that the statute was not complied with because the newspaper was not "published" in the city, the court said that the newspaper was published in West Seattle within the meaning of the statute. The court stated "to hold otherwise would be to absolutely prevent any election of this kind being held for the reason that there was no newspaper actually 'printed' within the limits of the city." This case in effect holds that circulation within a city means published within it.

An even stronger case in point is that of Lewis v. Tate, 197 S.W. (2d) 23, 210 Ark. 594. The court therein stated "the common and ordinary meaning of the word 'published,' according to Webster's New International Dictionary, is to make public, to make known to the people in general. It is only public when put in general circulation." Earlier in this same opinion the court said "certainly it was not the intention of the people to penalize a city simply because a weekly newspaper was not printed therein."

It is our opinion that the view of the above court is in harmony with our own, particularly in light of the Brown case, supra, and certainly in keeping with the current decline of daily newspaper publications per city. Also, to the effect that a newspaper is published where it is in circulation, seeVich v. Bishop, 40 So. (2d) 845 (Ala. 1949).

We know of no decision in this state which has held that a newspaper is published only where it is printed. But we have in theBrown case, supra, a sound basis for concluding that a newspaper is published where it has been placed in circulation. This is the view we adhere to.

Our conclusion that the word "published" in this instance means more than just where the newspaper is printed, we feel more clearly expresses the purpose and intent of the Constitutional provision in question. InBoeing [[Orig. Op. Page 5]] Aircraft Company v. R. F. C., 25 Wn. (2d) 652, 171 P. (2d) 838, it was stated that a constitutional clause must be construed reasonably to carry out the intention of the framers and should not be construed so as to defeat the obvious intent if another construction, equally in accordance with the words and sense, may be adopted which will enforce and carry out the intent.

Furthermore, we cannot overlook the following principle, sometimes forgotten, that constitutions are designed to endure through the years, and constitutional provisions should be interpreted to meet and cover changing conditions of social and economical life. State ex rel. Linn v. Superior Court, supra.

Accordingly, in our opinion the constitutional provision requiring that a proposed city charter shall be published in two daily newspapers published in the city is fully satisfied when the charter is published in at least two daily newspapers that are in general circulation within the city, whether they be actually printed in the city or in a neighboring city.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General