STATUTES ‑‑ CONSTRUCTION OF ‑‑ AMENDATORY OR SUPPLEMENTAL ‑‑ EFFECT OF SUPPLEMENTAL LEGISLATION UPON ORIGINAL ACT -- CITIES AND TOWNS ‑‑ THIRD AND FOURTH CLASS‑OFFICERS ‑‑ ELECTIVE AND APPOINTIVE...

AGO 1951 No. 131 - Sep 18 1951

Attorney General Smith Troy

STATUTES ‑‑ CONSTRUCTION OF ‑‑ AMENDATORY OR SUPPLEMENTAL ‑‑ EFFECT OF SUPPLEMENTAL LEGISLATION UPON ORIGINAL ACT --CITIES AND TOWNS ‑‑ THIRD AND FOURTH CLASS‑OFFICERS ‑‑ ELECTIVE AND APPOINTIVE ‑‑ TERMS OF OFFICE

Section 1, chapter 87, Laws of 1939 (Rem. Rev. Stat. Supp.| 9116‑1) as amended by section 1, chapter 108, Laws of 1941, is supplementary to, rather than amendatory of, the provisions of Rem. Rev. Stat. 9116, and all provisions of section 9116 which are not in conflict with the provisions of the supplemental acts of 1939 and 1941 are still in force.

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September 18, 1951

Honorable Donald Webster
Director, Bureau of Governmental
Research & Services
266 J. Allen Smith Hall
University of Washington
Seattle 5, Washington Cite as: AGO 51-53 No. 131

Dear Sir:

Your letter of July 27, 1951, as supplemented by your letter of August 1, 1951, refers to the provisions of chapter 182, Laws of 1929 (Rem. Rev. Stat., Section 9116) and the effect thereon of Section 1, chapter 87, Laws of 1939 (Rem. Rev. Stat. Supp. § 9116‑1), as amended by section 1, chapter 108, Laws of 1941 (§ 9116‑1 Rem. Supp. 1941).

You ask our opinion as to whether those portions of Rem. Rev. Stat. 9116 which are not expressly set forth in Rem. Rev. Stat. Supp. 9116‑1 as amended by 9116‑1 Rem. Supp. 1941, are still operative.

It is our conclusion that:

Section 1, chapter 87, Laws of 1939 (Rem. Rev. Stat. Supp. 9116‑1) as amended by section 1, chapter 108, Laws of 1941, is supplementary to, rather than amendatory of, the provisions of Rem. Rev. Stat. § 9116, and all provisions of section 9116 which are not in conflict with the provisions of the supplemental acts of 1939 and 1941 are still in force.

[Orig. Op. Page 2]

ANALYSIS

Chapter 182, Laws of 1929 (Rem. Rev. Stat. 9116) is as follows:

"The mayor, councilman‑at‑large, treasurer, city attorney and clerk shall be elected in the year 1915 for the term of one [Orig. Op. Page 2] year. Such officers shall be elected in the year 1916 and biennially thereafter for terms of two years. Three councilmen, other than councilman‑at‑large, shall be elected in the year 1915 for terms of three years. Three councilmen, other than council‑man‑at‑large, shall be elected in the year 1916 and biennially thereafter for terms of four years. All such elections shall be by the qualified electors of such city at a general municipal election to be held therein on the first Tuesday after the first Monday in December, except in class A counties and counties of the first class. All elective officers shall hold office from and after the first Tuesday in January next succeeding the date of election and until their successors are elected and qualified. The mayor shall appoint and at his pleasure may remove a chief of police, police judge, city engineer, street superintendent, health officer and such other officers as shall be provided by ordinance, and any such appointment or removal must be in writing, signed by the mayor, and filed with the city clerk."

At its 1939 session the legislature enacted chapter 87, Laws of 1939, entitled:

"AN ACT relating to third and fourth class cities; providing for and fixing the terms of offices for mayor, attorney, clerk and treasurer thereof; amending sections 9116 and 9165 of Remington's Revised Statutes; and providing that this act shall take effect immediately."

Section 1 of the 1939 act reads:

"Section 1. Amending sections 9116 and 9165 of Remington's Revised Statutes. The terms of office of mayor, attorney, clerk and treasurer in all cities [Orig. Op. Page 3] of the third and fourth class shall be four years, and until their successors are elected and qualified: Provided, That this act shall not affect the terms of office of any of such officials to which they have been elected or appointed at the time this act takes effect, but at the election next preceding the expiration of the terms of such officials a successor for such officials shall be elected for a four year term: Provided, further, That at the first election of treasurer after this act takes effect such official shall be elected for a two year term only, and at the election next preceding the expiration of such two year term a successor to such official shall be elected for a four year term: Provided, further, That this act shall not affect cities operating under a commission form of government."

This section was compiled as Rem. Rev. Stat. Supp. § 9116‑1 and, as pointed out by you, makes no reference to those portions of the 1929 act (Rem. Rev. Stat. § 9116), which specify the elective officials and which relate to the appointment and removal of other officials of a city of the third class.

Section 1, chapter 87, Laws of 1939, in turn, was expressly amended "to read" as set forth in section 1, chapter 108, Laws of 1941 (§9116‑1 Rem. Supp. 1941). However, the answer to the question presented by your inquiry must be determined by the effect of the 1939 act.

The general rule as followed by our Supreme Court is that where a section of a statute isamended, the original ceases to exist and the section as amended supersedes it. The effect is to strike the former section from the law, obliterate it entirely and substitute the new section in its place. State ex rel. Gebhardt v. Superior Court, 14 Wn. (2d) 673, at pp. 685 and 690, 131 P. (2d) 943.

On the other hand, an original act which is complete in itself and which deals with one complete subject is supplementary rather than amendatory in character, even though the effect is to change or modify some existing statute. Spokane Grain & Fuel Company v. Lyttaker, 59 Wash. 76, 82, 109 Pac. 316;City of Bellingham v. Hite, 137 Wash. Dec. 610 , 612.

In referring to the tests applied in the Lyttaker case, supra, to determine whether legislation is an original and supplementary act as distinguished from an amendatory act, our Supreme Court inSwedish Hospital, Etc. v. Department of Labor & Industries, 26 Wn. (2d) 819, 828, 176 P. (2d) 429, said:

[Orig. Op. Page 4]"* * * They are: Can a person of ordinary intelligence mistake its meaning? Can we know what the legislature intended, without referring to any other act or statute? * * *"

We are of the opinion that section 1, chapter 87, Laws of 1939 (Rem. Rev. Stat. Supp. § 9116‑1) as amended by section 1, chapter 108, Laws of 1941 (§ 9116‑1 Rem. Supp. 1941) meets the foregoing tests of supplementary legislation. The act had one specific purpose and that was to fix the terms of office of the officials designated in the title. To this extent the act merely supplemented and modified the provisions of Rem. Rev. Stat. § 9116, leaving all other consistent provisions of section 9116 in full force and effect.

This conclusion would appear to coincide with our Supreme Court's interpretation of the effect of the 1939 act as indicated in the case ofWarnock v. Marysville, 17 Wn. (2d) 515, 520, 136 P. (2d) 188, where it was said:

"In our opinion, the dominant purpose of the 1939 act was simply to enlarge the terms of office of such officers as were elective under Rem. Rev. Stat. §§ 9116, 9165, * * *"

The supplementary character of the 1939 act was not changed by the fact that the phrase "amending sections 9116 and 9165 of Remington's Revised Statutes" appears in the title and in the first sentence of section 1 of the act. The inclusion of such phrase had no other effect than to designate the place in the code which the new act was [Orig. Op. Page 4] to occupy. SeeCity of Bellingham v. Hile, supra, 137 137 Wash. Dec. 610 , 613.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General