PUBLICATION OF ELECTION FOR CHARTER AMENDMENTS IN A FIRST CLASS CITY

PUBLICATION OF ELECTION FOR CHARTER AMENDMENTS IN A FIRST CLASS CITY.

Publication in two daily newspapers for thirty daily issues is required for the amendment of the charter of a first class city.  In addition, notice of election must be given for ten days and in the case of the city of Everett, the proposed amendment must be published in the official city newspaper for two successive weeks before the election.

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                                                                  January 3, 1952

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                               Cite as:  AGO 51-53 No. 204

Dear Sir:

            Receipt is acknowledged of your letter of November 21, 1951, in which you ask what the requirements are for publication of an amendment to the charter of a city of the first class and specifically how many publications must be made, whether the requirements of § 10, Article XI, of the Constitution to the effect that notice of the election shall be given at least ten days before the day of the election, may be complied with by a publication which will also meet the requirements of § 11, chapter 161, Laws of 1949 as amended by § 7, chapter 101, Laws of 1951, prescribing that notices of general elections shall be given by publication not more than ten nor less than three days prior to the election.  You also ask whether a provision of the charter of the city of Everett may be harmonized with § 10, Article XI, of the Constitution.  The charter provision which is Article XVI, § 152, provides:

            "All proposed amendments of this Charter shall be published once a week for two successive weeks in the city official newspaper before the election at which they are submitted to be voted upon."

             [[Orig. Op. Page 2]]

            It is our conclusion that a notice must be published on thirty different days in two daily newspapers.  Notices of election to conform to § 10, Article XI, of the Constitution, must be given for at least ten days before the election, whereas those required under § 7, chapter 101, Laws of 1951, are ineffectual if given more than ten days prior to the election.  Therefore, separate arrangements must be made to comply with each section.  The quoted charter provision of the city of Everett is not in conflict with § 10, Article XI, of the Constitution but is an additional requirement which may possibly be met concurrently with the notice published in compliance with one of the other requirements.

                                                                     ANALYSIS

            In an opinion of this office dated July 30, 1942, to the prosecuting attorney of Kitsap County, it was held that § 8957 of Remington's Revised Statutes (§ 4, chapter 27, Laws of 1895, as last amended by § 3, chapter 137, Laws of 1925) which is complimentary to § 10, Article XI, of the Constitution, requires publication of charter amendments of first class cities at least thirty times prior to the date of submitting the same to the electors for their approval.  We enclose a copy of that opinion which we believe answers your first question.

            Your next inquiry has to do with the reconciliation of the requirement of Article XI, § 10 of the Constitution with § 11, chapter 161, Laws of 1949 as last amended by § 7, chapter 101, Laws of 1951 (Rem. Rev. Stat. § 5148-3a).  The constitutional provision in question reads in part as follows:

            "* * * All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, andshall be given for at least ten days before the day of election in all election districts of said city.  * * *" (Emphasis supplied)

            This notice is required to be given for at least ten days.  Thus, the first publication would have to occur, at the latest, on the tenth day before the election.  Section 11, chapter 161, Laws of 1949, as last amended by § 7, chapter 101, Laws of 1951, provides in part:

            "Notice for any state, county, district, or municipal election, whether special or general, shall be given by publication not more than ten nor less than three days prior to the election by the county  [[Orig. Op. Page 3]] auditor or the officer conducting the election as the case may be, in one or more newspapers of general circulation within the county.  * * *"

            A publication for the purpose of complying with the section last quoted is effective only in so far as it shall occur not more than ten nor less than three days preceding the date of the election.  Thus, the publication required by the constitutional provision and that required by the statute last quoted might be integrated in so far as publication from the tenth to the third day preceding the election is concerned, but in order that notice may be published for ten days preceding the election, it will be necessary to continue the publication until the day before the election to meet the requirements of § 10, Article XI of the Constitution.  The Constitution does not say how publication is to be accomplished.

            Our Supreme Court in the early case of State ex rel. Mullen v. Dougherty, 16 Wash. 382, implied that the constitutional requirement could be met by posting notices, but stated that the Constitution does not say what exact notice is required to be given.  The publication in a newspaper circulating through the precincts, we believe, would meet the requirement but it would have to be given at least in time that it could be said that the matter was published ten days in advance of the election.

            Your third question involves § 152, Article XVI of the city charter of Everett, which reads:

            "All proposed amendments of this Charter shall be published once a week for two successive weeks in the city official newspaper before the election at which they are submitted to be voted upon."

            Our Supreme Court held in the case of State ex rel. Hindley v. Superior Court, 70 Wash. 352, 126 Pac. 920, that a first class city by its charter might prescribe a method of amending the charter different from that set out in § 10, Article XI of the Constitution.  However, it does not appear that the city of Everett has undertaken to dispense with any of the requirements of the constitutional section.  The provision of the charter above quoted is consistent  [[Orig. Op. Page 4]] with the constitutional provision and may be regarded as an additional requirement.  If the city newspaper is a daily and is published within the city, there appears to be no reason why two of the publications pursuant to the constitutional article might not also serve as publications required under the charter.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General