ELECTIONS - SPECIAL - COUNCIL-MANAGER FORM OF GOVERNMENT

ELECTIONS - SPECIAL - COUNCIL-MANAGER FORM OF GOVERNMENT.

(1) and (2) A third class city adopting the council-manager form of government at a special election on November 3, 1959, may hold an election on the second Tuesday of March, 1960 to elect new city officials and such an election would be a special election.  (3) Three of the city councilmen elected in the special election in March, 1960 would serve until the first Monday in April, 1962 and four of the councilmen would serve until the first Monday in April, 1964.

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                                                                 August 13, 1959

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington                                                                                              Cite as:  AGO 59-60 No. 58

Attention:  !ttKenneth Gilbert,Deputy Secretary of State

Dear Sir:

            In requesting a formal opinion from this office you have asked three questions which for convenience we paraphrase as follows:

            (1) If the voters of the city of Walla Walla, a third class city operating under a commission form of government, adopt a council-manager plan in a special election to be held November 3, 1959, could an election be held on the second Tuesday of March in the year 1960 for the purpose of electing new city officials?

            (2) If question number 1 is answered in the affirmative, would the fact that the voters adopt the council-manager plan on November 3, calling for regular elections each two years, make the March 1960 election a regular election and supersede the normal schedule of the City of Walla Walla's elections, setting March 1962 as the date of the next regular election?

             [[Orig. Op. Page 2]]

            (3) If your answer to the above question is in the negative, are we correct in assuming that the city officials elected in the March 1960 election will serve until the first Monday in April, 1962 at which time the city officials elected at the March 1962 regular city election will assume office?

            We answer question (1) in the affirmative, question (2) in the negative and question (3) as set forth in the analysis.

                                                                     ANALYSIS

            In answering your questions we are obliged to examine several related statutes, all of which are inpari materia.  Acts or statutes which are in pari materia are those having the same subject or general purpose and which should therefore be read together as one law to ascertain the legislative purpose of any one of them.  Paltro v. Aetna Casualty & Surety Co., 119 Wash. 101, 204 Pac. 1044 (1922);State v. Rinkes, 49 Wn. (2d) 664, 306 P. (2d) 205 (1957).

            Before discussing our answers to these questions it is necessary to set forth the existing statutes or the pertinent provisions thereof related to this problem:

            RCW 29.01.170 defining special elections reads as follows:

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

            The reviser indicates in his legend that the language of this section was taken from § 3056, Code of 1881, which in turn was derived from § 2, Laws of 1866, p. 27, and 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."

            This provision is found in Rem. Rev. Stat. § 5155 in the same language except for the substitution of the word "state" for "territory."

            The general statutory provision regulating the time of holding of general elections in cities and towns is found in RCW 29.13.030 which reads in part as follows:

             [[Orig. Op. Page 3]]

            "All city and town general elections, other than class AA or Class A counties, shall be held on the second Tuesday of March in the even numbered years:  Provided, That should the provisions of holding city elections on even numbered years be in conflict with any provision in any charter of a city, said charter provision, as to the year of election, shall not be affected."

            Chapter 76, Laws of 1959, relating to the council-manager plan of government in cities, contains the following language with regard to the number of councilmen to be elected in certain classes of cities:

            "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:

            ". . .

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

            "All councilmen shall be elected at large or from such wards or districts as may be established by ordinance, and shall serve for a term of four years and until their successors are elected and qualified:  Provided, however, That at the first election, the following shall apply:

            "(a) At the first election, one councilman shall be nominated and elected from each ward or such other existing district of said city as may have been established for the election of members of the legislative body of the city and the remaining councilmen shall be elected at large; but if there are no such wards or districts in the city, or at an initial election for the incorporation of a community, the councilmen shall be elected at large.

            ". . .

            "(c) In cities electing seven councilmen, the candidates having the four highest number of votes shall be elected for a four year term and the other three for a two year term and until their successors are elected or qualified."  (RCW 35.18.020)

             [[Orig. Op. Page 4]]

            The act further provides that any city with less than thirty thousand population may be organized as a council-manager city.

            Section 4 of the act (RCW 35.18.250) authorizes the holding of a special election on the question of adoption of the council-manager form of government upon the filing of a petition.

            Section 5 of the act (RCW 35.18.270) provides in pertinent part as follows:

            "If the majority of the votes cast at a special election for organization on the council-manager plan favor the plan, the city or town at its next regular election shall elect the council required under the council-manager plan in number according to the population of the municipality:  Provided, That if the date of the next municipal general election is more than one year from the date of the election approving the council-manager plan,a special election shall be held to elect the councilmen; the newly elected councilmen shall assume office immediately following the canvass of votes as certified and shall remain in office until their successors are elected and qualified.  Councilmen shall take office at the time provided by general law.  Declarations of candidacy for city or town elective positions under the council-manager plan for cities and towns shall be filed with the city or town clerk as the case may be not more than forty-five or less than thirty days prior to said special election to elect the members of the city council.  Any candidate may file a written declaration of withdrawal at any time within five days after the last day for filing a declaration of candidacy. . . ."  (Emphasis supplied.)

            Section 5, chapter 76, Laws of 1959, is silent as to the time for holding the special election contemplated therein, for the election of new councilmen when the next regular election which would otherwise be scheduled for the city under its prior form of government is more than a year from the date of the election approving the council-manager plan.  In view of this silence, we are obliged to turn to § 2, Laws of 1866, p. 27, which provides that a special election may be called "at such times as may be designated by the proper officer."

            We are unaware of any further restrictions with regard to the times for holding special elections in such instances.  We therefore conclude that subject only to the limitation that the time must be designated by the  [[Orig. Op. Page 5]] proper official the special election provided for by § 5 may be held at any time.  Since March 1960, the date of the proposed election for the selection of new officers is less than a year from the date of the proposed election on November 3, 1959, for the adoption of the council-manager plan, we express no opinion as to the necessity of the election for new councilmen taking place within a year from the date of the election at which the council-manager plan is adopted.

            Your second question is apparently raised because of the language of RCW 29.13.030 which provides that elections in cities and towns other than in class AA or class A counties shall be held on the second Tuesday of March in the even numbered years.  Once having adopted a council-manager plan this provision would normally apply to the city of Walla Walla.  However, you will note that the section is restricted to "general elections."  The election which is proposed to be held on the second Tuesday of March, 1960 is not a general election and will not be conducted by virtue of RCW 29.13.030, as the first election for councilmen under the council-manager plan in this instance is governed by and held pursuant to § 5, chapter 76, Laws of 1959 (RCW 35.18.270), which expressly terms such election a special election.  The fact that the election is called at a time which would otherwise be the time for holding regular elections of such city does not make it a regular or general election.

            It is the nature of the election and not the time at which it is held which determines whether it is a special or general election.  Robb v. Tacoma, 175 Wash. 580, 28 P. (2d) 327 (1933).

            It has been held many times by our Supreme Court that an election to fill a vacancy in office although held at the same time and place as a general election constitutes a special election.  State ex rel. Sampson v. Superior Court, 71 Wash. 484, 128 Pac. 1054 (1913);State ex rel. Rummens v. Superior Court, 160 Wash. 520, 295 Pac. 730 (1931);State ex rel. Dore v. Superior Court, 171 Wash. 423, 18 P. (2d) 51 (1933).

            In answer to question number (3) we refer to that provision of chapter 76, Laws of 1959, governing the terms of offices of councilmen.  The pertinent part of § 1 of that act reads as follows:

            "All councilmen shall be elected at large or from such wards or districts as may be established by ordinance, and shall serve for a term of four years and until their successors are elected and qualified:  Provided, however, That at the first election, the following shall apply:

            ". . .

             [[Orig. Op. Page 6]]

            "(c) In cities electing seven councilmen, the candidates having the four highest number of votes shall be elected for a four year term and the other three for a two year term and until their successors are elected and qualified."  (Emphasis supplied.)

            In making reference to "the first election" the legislature has failed to qualify it as either special or general.  It has been suggested that the term "election" as used in the context above refers to the first general election so that the provisions of § 1 (c), chapter 76, Laws of 1959,supra, would have no application until the regular general election of April 1962.  With this view we cannot agree.

            In determining the meaning of a word as used in a particular instance, regard must necessarily be had to the subject matter in connection with which it is used, and also to the context of the statute wherein it is employed.  Cady v. Kerr, 11 Wn. (2d) 1, 10, 118 P. (2d) 182 (1941).  In the statute under consideration the word "election" is employed in connection with the establishment of special machinery to provide for staggered terms for councilmen.  Because of the purpose of devising long and short terms, there is no reason to assume the legislature intended it to apply to other than the initial election of councilmen, whether special or general.

            Having a population of 25,600 persons, the city of Walla Walla would be entitled to seven councilmen all of whom would take office immediately following their election on the second Tuesday of March, 1960 after the canvass of votes as certified in accordance with § 5 (RCW 35.18.270), supra.

            If § 1, chapter 76, Laws of 1959 had no application prior to the 1962 election, the councilmen elected at the 1960 special election would all have to be elected for two year terms.  Nowhere in the act is there any provision authorizing an election to two year terms ofall councilmen.

            These considerations convince us that § 1, supra, applies to the initial election required by § 5 of the act, whether it be a special or general election.

            The firstgeneral election under the council-manager plan of the city of Walla Walla would take place on the second Tuesday of March, 1962 as is prescribed by RCW 29.13.030.

            Section 5 further provides that councilmen shall take office at the time provided by general law.

            The applicable "general law" prescribing the time for taking office is § 1, chapter 86, Laws of 1959, which reads in part as follows:

             [[Orig. Op. Page 7]]

            "The term of every city, town, and district officer excepting school district officers, elected to office on the second Tuesday in March shall begin on the first Monday in April following his election. . . ."

            Therefore, three councilmen, elected for a two year term at the special election called in March of 1960, would serve until the first Monday in April, 1962, at which time the terms of their successors would commence, while the four councilmen who received the highest number of votes at the March, 1960 special election would serve until the first Monday of April, 1964 at which time their successors would enter office.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GERALD F. COLLIER
Assistant Attorney General