PRIMARY TO FILL VACANCY IN FIRST-CLASS CITY

PRIMARY TO FILL VACANCY IN FIRST-CLASS CITY.

A vacancy in an elective office in the City of Tacoma may be voted for in a primary where it has occurred in time to permit the office to be included in the notices of a primary election without the necessity of forty-five days' notice being given to the county auditor.

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                                                                 January 28, 1952

Honorable John J. O'Connell
Prosecuting Attorney
Pierce County
Court House
Tacoma, Washington                                                                                        Cite as:  AGO 51-53 No. 226

Dear Sir:

            Receipt is acknowledged of your letter of January 24, 1952, in which you request our opinion on the following question:

            May the county auditor, as ex-officio supervisor of elections, in the absence of forty-five days' notice prior to the proposed election date, pursuant to section 29.13.020 RCW (section 1, chapter 161, Laws of 1949 as amended by section 1, chapter 101, Laws of 1951) call a special primary election, ample time for the ten to three days' publication being available, and thereby permit the nominations of candidates in the manner prescribed by the City Charter, or is such forty-five days' provision mandatory, and the vacancy to be filled by sticker campaign in the general election set for March 11, 1952?

            It is our conclusion that the position may be included among those balloted for at the primary where a vacancy is to be filled at the general election and there is time to permit the publication of the requisite notice of the primary.

                                                                     ANALYSIS

            Section 9 of the charter of the city of Tacoma reads in part:

             [[Orig. Op. Page 2]]

            "If a vacancy occurs in any elective office * * * the Council shall appoint an eligible person to fill such vacancy until the first Monday in June following the next general municipal election held not less than thirty days after such vacancy occurs.  At such election the unexpired term, if any, shall be filled by election.  An elective office shall become vacant upon failure of the person elected or appointed thereto to qualify therefor prior to the time fixed for his taking office or upon the death, recall or removal from office or resignation of the incumbent or his removal or absence from the city for sixty days without leave of the council.  * * *"

            Section 102 of the charter of the city of Tacoma provides in part

            "* * * The primary municipal election shall be held two weeks prior to each general municipal election to nominate candidates to be voted upon at such general municipal election.  All other municipal elections shall be known as special municipal elections * * *"

            The latter section was modified in part by section 7, chapter 257, Laws of 1951, which prescribes that all first class cities shall hold their primaries four weeks prior to their general city elections.  Thus, it is apparent from the Tacoma city charter that where the vacancy has occurred more than thirty days prior to the next general election, the office must be filled at that general election.  The charter, likewise, makes a primary an adjunct of the general election.

            Section 1, chapter 101, Laws of 1951 amended RCW 29.13.020 (section 1, chapter 161, Laws of 1949) to make it include the following:

            "The county auditor, asex officio supervisor of elections, upon request in the form of a resolution of the governing body of a city, town, or district, presented to him at least forty-five days prior to the proposed election date, may, if he deems an emergency to exist, call a special election at any time in such city, town, or district  [[Orig. Op. Page 3]] and for the purpose of such special election he may combine, unite, or divide precincts.  Such special election shall be noticed and conducted in the manner provided by law."

            The question under consideration is whether this language makes it impossible to nominate candidates to fill the vacancy at the primary election if the resolution was not presented to the county auditor forty-five days prior to the proposed primary date.  RCW 29.13.020 prescribes the date of elections in Class A counties.  In our opinion the effect of the last paragraph of that section which we have quoted above is to permit a departure from the date prescribed in the section.  Thus, if a resolution is presented forty-five days in advance and the county auditor deems an emergency to exist, he may call a special election at any time.  We do not believe that this paragraph has any application where it is not found necessary to depart from the election date fixed by law.  Consequently, if there is time to advertise the primary, and to include the vacancy in the notice of election, it may be voted upon at the primary.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General