NECESSITY FOR PLACING ON CITY ELECTION BALLOT

CITY ORDINANCES ‑- REFERENDUM ‑- NECESSITY FOR PLACING ON CITY ELECTION BALLOT

A referendum referring a city ordinance to the electors is entitled to appear on the ballot notwithstanding the fact that such ordinance provides that the conducting or play of certain games, which come within the purview of the state antigambling law, constitutes a misdemeanor.

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                                                                December 3, 1953

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 179

Dear Sir:

            By letter as previously acknowledged you have requested the opinion of this office upon a question raised by the following facts:  On 22 April, 1953, the city council of the city of Vancouver duly enacted Ordinance M-57, making the operation, maintenance, offer for public use or play, or play of any Skillo, Quizzo, Bingo, Beano, Keno or Tango game by any corporation, firm or person a misdemeanor.  A referendum petition upon Ordinance No. M-57 has been duly filed under Article X of the city charter, providing for a vote of the electors of the city thereupon at the regular city election to be held on 9 March, 1954.  You ask whether or not the referendum should appear on the city election ballot, in view of our opinion of 25 September, 1953, to the Honorable Ella Wintler [[AGO 53-53 No. 138 on September 25, 1953]].

            In our opinion the referendum is entitled to appear upon the city election ballot; but repeal of the ordinance could not legalize these games in Vancouver.

                                                                     ANALYSIS

            Vancouver is a city of the first class.  RCW 35.01.010.  In the exercise of its lawful powers it is governed by its charter.  RCW 35.22.020.  Article X, section  [[Orig. Op. Page 2]] 10.02 of the city charter provides:

            "The electors shall have power to approve or disapprove at the polls any ordinance passed by the city council, or submitted by the city council to a vote of the electors, except such ordinances as may be necessary for the immediate preservation of the public peace, health, or safety, or for the support of the city government and its existing public institutions, or providing for the approval of local improvement assessment rolls, or for the issuance of local improvement bonds.  * * *"

            We find nothing in Ordinance No. M-57 which brings it within the enumerated exceptions to the quoted provision.  We infer from your letter that the referendum petition has been certified, so that it has the effect stated in section 10.06 of the charter:

            "When a referendum petition, or amended petition as defined in the preceding section, has been certified as sufficient by the city clerk, the ordinance specified in the petition shall not go into effect, or further action thereunder shall be suspended if it shall have gone into effect, until and unless approved by the electors, as hereinafter provided."

            We assume further, since the question would be moot otherwise, that the city council has failed to repeal the ordinance referred under the provisions of section 10.08.  It follows that the referendum must be submitted to the voters, if there is subject matter upon which it can operate.  We must therefore examine the ordinance.

            Apparently the ordinance was enacted in full compliance with Article II, sections 2.12 ‑ 2.17 of the charter.  It prohibits the enumerated games, and provides that any violation shall constitute a misdemeanor, punishable by a fine of not more than $100, or by imprisonment for not more than thirty days, or both.  RCW 35.22.280 (36) empowers a first class city:

             [[Orig. Op. Page 3]]

            "To provide for the punishment * * * of all practices dangerous to public health or safety, and to make all regulations necessary for the preservation of public morality, health, peace, and good order within its limits, and to provide for the * * * punishment of all persons charged with violating any of the ordinances of said city; but such punishment shall in no case exceed the punishment provided by the laws of the state for misdemeanors."

            RCW 9.01.020 provides in part that:

            "* * * Every crime punishable by a fine of not more than two hundred and fifty dollars, or by imprisonment in a county jail for not more than ninety days, is a misdemeanor."

            The fact that RCW 9.47.010 and 9.47.020 make substantially the same acts as are proscribed by Ordinance No. M-57 crimes throughout the state does not preclude the enactment by a city of an ordinance upon the same subject-matter.  InSeattle v. McDonald, 47 Wash. 298, 91 Pac. 952, a very broad ordinance relating to gambling (including "keno" among the forbidden games) was upheld, and conviction thereunder declared to be valid, despite state legislation upon the same problem.  See also:  State v. Hagimori, 57 Wash. 623, 107 Pac. 855; Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324;Society Theater v. Seattle, 118 Wash. 258, 203 Pac. 21; State v. Larkin, 130 Wash. 531, 228 Pac. 289.  The city may enforce its own ordinance in such a case, and conviction thereunder is not a bar to subsequent prosecution by the state for the same offense.  State v. Tucker, 137 Wash. 162, 242 Pac. 363, 246 Pac. 758.

            Even had the ordinance done nothing more than to add, as an expression of policy, the individual disapproval of gambling by the city of Vancouver to that of the state as a whole, it is possible that the electors would have the right to withdraw that expression by referendum.  But Ordinance No. M-57 places an additional and substantial penalty upon those who gamble.  This is clearly a matter upon which the electors have the right to act under the charter.

            We have been cited to the following language of an opinion rendered for the Honorable Ella Wintler on 25 September, 1953.

             [[Orig. Op. Page 4]]

            "We note that the games appear to be operating under the supposed authority of a referendum petition which holds in abeyance a municipal ordinance outlawing the games.  As indicated herein, the games are illegal as a matter of state law.  They cannot be legalized by either the city council, or the people of the city of Vancouver acting in a legislative capacity.  SeeMiller v. Spokane, 35 Wn. (2d) 113, 211 P. (2d) 165.  The referendum petition is completely futile and the holding in abeyance of the city ordinance has no effect whatever."

            The conclusion given in that opinion is this:

            "Our answer to the first question is that the city cannot legally enact and enforce an ordinance to tax such games.  This answer renders the other three questions moot."

            Apparently sponsors of the referendum hoped that suspension or repeal of the ordinance would legalize the games in Vancouver.  The statement from the opinion first quoted above was made to dispel any such mistaken hope, and we think the context clearly limits the scope of that statement.  We did not intend to imply that the referendum could not appear upon the ballot.

            Ordinance No. M-57 is temporarily ineffective, under Article X, section 10.06 of the Vancouver charter.  If it is approved by the voters next March, gambling will be illegal in Vancouver; and subject to penalty under the ordinance, or under RCW chapter 9.47, or both.  If the ordinance is repealed by the voters, gambling will be illegal in Vancouver, and subject to penalty only under chapter 9.47 RCW.

            We conclude that the referendum should appear upon the next general election ballot of the city of Vancouver.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General