ELECTIONS - ANNEXATION - PUBLIC STATUTES REQUIRING GIVING OF NOTICE

ELECTIONS - ANNEXATION - PUBLIC STATUTES REQUIRING GIVING OF NOTICE.

RCW 35.12.020 and 35.13.080, statutes setting out the requirements for giving notice of certain annexation elections, were not repealed by the enactment of RCW 29.27.080, a general statute providing the notice requirements for special and general elections.

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                                                                February 26, 1960

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington                                                                                 Cite as:  AGO 59-60 No. 103

Dear Sir:

            This is in reply to your letter, previously acknowledged, in which you requested that this office render an opinion on a question which we paraphrase as follows:

            Were RCW 35.12.020 and 35.13.080, which are statutes setting out the requirements for giving notice of certain annexation elections, repealed by the enactment of RCW 29.27.080, a statute relating to the notice requirements generally for special and general elections?

            We answer your question in the negative.

                                                                     ANALYSIS

            While annexation elections are "special" elections in the sense that they are not "general" we do not believe that they are the type of special elections referred to in RCW 29.27.080, which reads as follows:

            "Notice for any state, county, district, or municipal election, whether special or general, shall be given by at least one publication not more than ten nor less than three days prior to the election by the county auditor or the officer conducting the election as the case may be, in one or more newspapers of  [[Orig. Op. Page 2]] general circulation within the county.  Said legal notice shall contain the title of each office under the proper party designation, the names and addresses of all officers who have been nominated for an office to be voted upon at that election, together with the ballot titles of all measures, the hours during which the polls will be open, and that the election will be held in the regular polling places in each precinct, giving the address of each polling place: Provided, That the names of all candidates for nonpartisan offices shall be published separately with designation of the offices for which they are candidates but without party designation.  This shall be the only notice required for a state, county, district or municipal general or special election and shall supersede the provisions of any and all other statutes, whether general or special in nature, having different requirements for the giving of notice of any general or special elections."  (Emphasis supplied)

            This statute was first passed by the legislature in 1949, i.e., § 11, chapter 161, Laws of 1949, and its applicability was limited to "any state, county, district, or municipal general election."  (Emphasis supplied) By § 7, chapter 101, Laws of 1951, the statute was amended to include special elections, i.e., "any state, county, district, or municipal election, whether special or general."  By § 1, chapter 153, Laws of 1955, the statute was amended by adding the underlined portion of the last sentence as quoted above.

            The applicability of this section is limited to "any state, county, district, or municipal election, whether special or general."  We are of the opinion that an annexation election is not within the definition of any of the elections listed.

            As evidence that the legislature was limiting this section to those elections listed, other statutes dealing with notice passed since RCW 29.27.080 which are not within the listed elections have incorporated RCW 29.27.080 by specific reference.  This incorporation would not have been necessary if it already applied.  Two such statutes are RCW 35.02.100 (amended by § 9, chapter 73, Laws of 1957), and RCW 35.04.100 (§ 10, chapter 345, Laws of 1955).  These sections apply to notice requirements of incorporation elections and intercounty incorporation elections, respectively.  Both sections require more to be in the notice than that required by RCW 29.27.080.  We believe this to  [[Orig. Op. Page 3]] be of significance since if the legislature had meant RCW 29.27.080 to apply to special elections other than those listed, this section would have been the proper section to amend to include the additional notice requirement of RCW 35.02.100 and 35.04.100.

            Also, since the legislature, in RCW 29.27.080, enumerated specific types of elections, those not enumerated are not within the purview of said section.  Our supreme court has stated many times that the express mention of one thing will be taken to imply the exclusion of another thing, expressio unius est exclusio alterius.  Bradley v. Dept. of Labor & Ind., 52 Wn. (2d) 780, 329 P. (2d) 196 (1958);Ramsey v. Dept. of Labor & Ind. 36 Wn. (2d) 410, 218 P. (2d) 765 (1950).

            Another reason for our position is that our court has held that the annexation of territory involves property rights of citizens.  Wilton v. Pierce County, 61 Wash. 386, 112 Pac. 386 (1910).  As such, notice of an annexation election is not only statutory, but it must also be "notice" in the constitutional sense.  We are reluctant to find that the legislature intended a repeal by implication where the later statute calls for less notice than the statute impliedly repealed, especially where property rights are involved.

            Since anannexation election is not one of the special elections enumerated in RCW 29.27.080, and for the other reasons indicated, we are of the opinion that RCW 29.27.080 has not superseded the notice provisions found in RCW 35.12.020 and 35.13.080.

            Having decided that an annexation election is not one of the special elections enumerated in RCW 29.27.080, we would like to point out that we have not overlooked the definition of "special election" set forth in RCW 29.01.170 as follows:

            "'Special election' means any election for electing candidates to public office that is not a general election."

            If this definition is applied literally to RCW 29.27.080, it is obvious that an annexation election would not be a "special election" since no candidates are being elected.  This RCW section, however, is derived from § 3056, Code of 1881, which reads as follows:

            "Special elections are such as are held to supply vacancies in any office, whether the same be filled by the vote of the qualified electors of the territory, or any district, county or township, and may be held at such times as may be designated by the proper officer."

             [[Orig. Op. Page 4]]

            This section appears in Chapter CCXXXIX entitled "Time of Holding, and Manner of Conducting Elections."  The chapter's applicability is limited by the first section therein (§ 3055) to "the election of legislative, district, county and precinct officers. . ." (Emphasis supplied)

            When the RCW was adopted, the legislature provided that ". . . said code shall establish prima facie the laws of this state . . . but . . . In case of . . . any inconsistency between any of the provisions of said code and the laws existing immediately preceding this enactment, the previously existing laws shall control."  RCW 1.04.021; § 2, chapter 16, Laws of 1950, Ex. Sess.

            This being the case, it is clear that § 3056, Code of 1881, is not a definition section, and that RCW 29.01.170 is not relevant in construing RCW 29.27.080.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES I. McCLURE
Assistant Attorney General