ELECTIONS -- CITIES AND TOWNS -- NOTICE OF SPECIAL ELECTION -- JURISDICTION OF ELECTION OFFICIALS

ELECTIONS -- CITIES AND TOWNS -- NOTICE OF SPECIAL ELECTION -- JURISDICTION OF ELECTION OFFICIALS

(1) The notice provision of the 1949 election law has no application to municipal elections to authorize excess levies.

(2) Under the 1949 election law the county auditor, as supervisor of elections, has jurisdiction to conduct municipal elections in Class A and first class counties; county canvassing board has the duty of canvassing such election.  In all other counties, local municipal officers have exclusive jurisdiction to conduct and canvas city and town elections.

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                                                                 January 30, 1950
Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 210

Dear Sir:

            You have requested the opinion of this office concerning the following questions:

            1. Is any change effected by section 11, chapter 161, Laws of 1949, upon the notice requirements for municipal elections to levy taxes in excess of the fifteen mill limit prescribed by § 11238-1e Rem. Supp. 1945?

            2. Who has jurisdiction to conduct and canvas municipal elections held in the various counties under section 5, chapter 161, Laws of 1949?

            Our conclusions are:

            1. Municipal elections to authorize levies in excess of the tax limitation prescribed by the constitution and statutes of the state are special elections regardless of the time at which they are held, and therefore the notice requirements of § 11238-1e Rem. Supp. 1945 (Sec. 1, chapter 253, Laws of 1945) remain unaffected by Sec. 11, chapter 161, Laws of 1949 (§ 5148-3a Rem. Supp. 1949) which applies only to general elections.

            2. Under § 5, chapter 161, Laws of 1949 (§ 5153-1 Rem. Supp. 1949), the county auditor, as ex-officio supervisor of elections, has sole jurisdiction to conduct municipal elections in Class A and first class counties;  [[Orig. Op. Page 2]] and the county canvassing board of election returns has sole jurisdiction to canvas the result of such elections.  In city and town elections in other than Class A and first class counties the local municipal officers normally charged with the conduct of elections have jurisdiction over the conduct and canvas of city and town elections, and no other board or officer need be joined in either the conduct or canvas of such elections.

                                                                     ANALYSIS

            Section 1, chapter 253, Laws of 1945 (§ 11238-1e Rem. Supp. 1945) provides that cities and towns may exceed the fifteen mill tax limitation imposed thereby if authorized:

            "* * * by the electors of such county, school district, city or town by three fifths majority of those voting on the proposition at thespecial election, to be held in the year in which the levy is made, and not oftener than once in such year, in the manner provided by law for holding general elections, at such time as may be fixed by the body authorized to call the same, whichspecial election may be called by the * * * council, or other governing body of any city or town, by giving notice thereof for two (2) successive weeks by publication and posting in the manner provided by law for giving notices of general elections, at whichspecial election the proposition of authorizing such excess levy shall be submitted in such form as to enable the voters favoring the proposition to vote 'yes,' and those opposed thereto to vote 'no' * * *" (Emphasis added).

            Themanner of posting notice of general elections in cities and towns of Class A counties and counties of the first class is prescribed by § 7, chapter 53, Laws of 1923 [Rem. Rev. Stat. § 5148-3] which requires that notice be posted at each polling place and that the notices contain the time and place of holding the election, the hours during which the polls shall be open and the propositions to be voted upon at such election.  Section 1, chapter 279, Laws of 1927 [Rem. Rev. Stat. § 5150] provides for second to ninth class counties and apparently refers to § 5148-3, supra, in specifying that notice of election should be given in the manner provided by law.  Thus, under § 11238-1e Rem. Supp. 1945, the notice required for an election to authorize levies in excess of the fifteen mill limitation  [[Orig. Op. Page 3]] upon cities and towns must be by publication in a newspaper of general circulation in the county for two successive weeks preceding the election and also by notices posted at each polling place for a like period of time.

            Is any change effected in these requirements by section 11, chapter 161, Laws of 1949 [§ 5148-3a Rem. Supp. 1949], which provides:

            "Notice for any state, county, district, or municipal general election shall be given by publication not more than ten (10) nor less than three (3) days prior to the general election by the County Auditor or the officer conducting the election as the case may be, in one or more newspapers of general circulation within the county.  Said legal notice shall contain * * * 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: * * * This shall be the only notice required for a state, county, district or municipal general election."

            It will be noted that this statute by its own terms applies only togeneral elections.  It will also be noted that section 11238-1e refers to and denominates elections to authorize excess levies asspecial elections.  It has been held that elections to authorize excess levies are necessarily special elections even though they are held at the same time and as part of a general election.  American Smelting and Refining Co. v. Tacoma School District No. 10, 15 Wn. (2d) 1, 129 P. (2d) 531.  The 1949 election law therefore has no effect upon notice requirements specified by section 11238-1e,supra.  Accordingly, you are advised that notice of city and town elections to authorize excess levies must be given by at least two successive weeks of publication of a notice in a newspaper of general circulation in the county and by posting of such notices at each polling place in the form required by Rem. Rev. Stat. 5148-3, supra.

            Your second question pertains to the officers who now have jurisdiction over the conduct and canvas of elections in the various counties.  As the law existed prior to the enactment of § 5148-3a Rem. Supp. 1949, the county auditor was ex-officio supervisor of all elections (except elections for cities and towns that are not subject to the consolidated election laws, and elections for water districts, and second and third class school districts).  However,  [[Orig. Op. Page 4]] chapter 182, Laws of 1947 [§ 5166-10 Rem. Supp. 1947] prescribed only certain specific duties which the county auditor, as supervisor of elections, was to perform.  There was no clear manifestation of legislative intent that the county auditor was to performall things necessary in the conduct of elections.  The county election board retained such duties as were not thereby expressly delegated to the county supervisor.  See opinion of this office to the Prosecuting Attorney of Yakima County, dated May 12, 1947.  The county canvassing board (comprised of the same officials who constituted the county election board) was charged with the duty of canvassing all elections.

            Is the jurisdiction conferred by these laws altered by § 5, chapter 161, Laws of 1949 [§ 5153-1 Rem. Supp. 1949] which provides:

            "All elections held under section 1 of this act [elections in Class A and first class counties] shall be conducted by the County Auditor as ex-officio County Supervisor of Elections and shall be canvassed by the County Canvassing Board of Election Returns.  All elections held under section 2 [elections in other than Class A or first class counties] of this act shall be conducted and canvassed by the local municipal or district officers normally charged with the conducting of said elections."

            Under this statute the county auditor, as ex-officio supervisor of elections, shall do everything necessary in conducting elections held in Class A counties and counties of the first class.  The grant of jurisdiction to the county auditor by this section is greater than that given by § 5166-10 Rem. Supp. 1947,supra, which specified certain functions only.  Section 5166-10 Rem. Supp. 1947 has been impliedly repealed by § 5153-1 Rem. Supp. 1949 so far as the former statute restricted the county auditors' duties in conducting elections in Class A and first class counties.  It will be noted that the jurisdiction of the county canvassing board remains unaffected by § 5153-1 Rem. Supp. 1949,supra.

            As to city and town elections in other than Class A or first class counties, the local or municipal authorities are charged with the duty of conducting such elections and of canvassing the vote.  We feel that the local municipal  [[Orig. Op. Page 5]] authorities need not join with the county auditor in conducting or canvassing such elections.  Section 21, chapter 163, Laws of 1919 [Rem. Rev. Stat. 5340] has been impliedly repealed so far as that statute requires a county canvassing board to canvas the returns of elections held in cities and towns located in other than Class A or first class counties.  Rosenthal v. Tacoma, 31 Wn. (2d) 32, 195 P. (2d) 102; 1 Sutherland, Statutory Construction (3rd ed.) § 2012.  Furthermore, under the 1949 act, § 13, Laws of 1925 [Rem. Rev. Stat. 5646-3] is no longer effective as requiring a canvas by the county canvassing board of municipal bond elections.

Very truly yours,

SMITH TROY
Attorney General

JOHN D. BLANKINSHIP
Assistant Attorney General