CITIES AND TOWNS ‑- OFFICERS ‑- ELECTION OR APPOINTMENT OF ‑- NOT INVALID DELEGATION OF LEGISLATIVE POWER.

CITIES AND TOWNS ‑- OFFICERS ‑- ELECTION OR APPOINTMENT OF ‑- NOT INVALID DELEGATION OF LEGISLATIVE POWER.

 A statute enacted by the state legislature providing that the city council may determine by ordinance whether certain city officials shall be elective or appointive would not constitute an invalid delegation of legislative power under Amendment VII of the Washington Constitution.

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                                                                 January 17, 1955 

Honorable Chester Biesen
Executive Secretary
Association of Washington Cities
250 Smith Hall, University of Washington
Seattle 5, Washington                                                                                                                Cite as:  AGO 55-57 No. 10

 Dear Sir:

             By letter you have asked whether a statute providing that second and third class cities may, by ordinance, specify whether the offices of city clerk and city attorney are to be elective or appointive would constitute an invalid delegation of legislative power under Amendment VII, of the Washington Constitution.

             In our opinion, such a statute would not constitute an invalid delegation of legislative power.

                                                                      ANALYSIS

             A study is being made of proposed legislation to provide (1) that in cities of the second and third class operating under the mayor-council form of government, the city clerk either may be elected by the people or appointed by the mayor, as may be provided by ordinance, and (2) that in such third class cities the city attorney either may be elected by the people or appointed by the mayor, as may be provided by ordinance.

              [[Orig. Op. Page 2]]

            The Washington Constitution, though providing that certain county officers shall be elected under Article XI, § 5, does not provide for the election of city officials but leaves it to the legislature to determine how those offices shall be regulated.  Article XI, § 10 provides that

             "* * * cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this Constitution shall be subject to, and controlled by general laws.  * * *"

             Thus the legislature is given complete freedom to regulate cities and city officials as it seems fit.

             The precise issue presented here is whether such proposed legislation would constitute invalid delegation of legislative authority under Amendment VII, of the Washington Constitution.

            The general rule throughout the nation, recognized in Washington, is that the delegation by a state legislature to a municipal corporation of the power to legislate, subject to the paramount law, concerning local affairs, does not violate the inhibition against the delegation of the legislative function.  Nelson v. Troy, 11 Wash. 435, 39 Pac. 974; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 43 L.Ed. 341, 19 S.Ct. 77 (1898); Cooley, Constitution Limitations, 389.  The rule recognizes the fact that as to local matters, the city council has superior knowledge.  6 RCL 168, 169.

             The question as to what matters are purely of local concern was discussed in Cleveland v. City of Watertown, 99 Misc. Rep. 66. 165 N.Y.S. 305, 312 (1917), in which the court analyzed the problem as follows:

             "* * * The distinction between powers purely municipal that can be delegated, and those which involve state functions and therefore cannot be delegated, is stated in McGrath v. Grout, 69 App. Div. 314, 320, 74 N.Y. Supp. 782.  The former is said to relate to matters of local  [[Orig. Op. Page 3]] government and local concern, with which the state at large has no specific duties to perform, and with which it has no general concern, while the latter includes matters in which the state at large has an interest, such as questions relating to the public health, education, taxation, and the like, which are therefore said to involve state functions.  * * *"

             Is the determination as to whether city officials shall be elective or appointive merely a matter of local concern?  InCraft v. Baker, 238 S.W. 389 (1922), the court of appeals in Kentucky indicated the answer is "yes".  The court said at page 391, referring to legislation similar to that proposed here:

            "The purpose of the enactment of the legislature seems to have been to delegate to the council the authority to determine the manner of the selection of the mayor, because of the latters presumed superior knowledge of local conditions, and, if in its judgment it was necessary or profitable to change the manner of selecting the mayor from election by the voters to appointment by the council, it might do so if it exercised the power in the manner and the time prescribed."

             Similarly, the Ohio Supreme Court inFitzgerald et al. v. City of Cleveland, 88 Ohio St. 338, 103 N.E. 512 (1913), held that a constitutional provision giving cities powers of local self government included the right to determine whether certain officials shall be elective or appointive.

             In discussing a statute which allowed cities of the first class to select the type of city government they wanted, the court said inState ex rel. Hunt v. Tausick, 64 Wash. 69, 79, as follows:

             "* * * the rule is well established that a statute does not delegate legislative power so long as it is complete in itself when it has passed the legislature and has been approved by the governor, even though it is left to some local body  [[Orig. Op. Page 4]] to determine whether and when it shall go into operation.  * * *"

             Therefore, it is our opinion that the determination of whether the offices of city clerk or city attorney shall be elective or appointive in second and third class cities, is a matter of local concern which may lawfully be left to the city council to decide by ordinance under power granted to it by the state legislature.

 Very truly yours,

 DON EASTVOLD
Attorney General 

EDWARD M. LANE
Assistant Attorney General