Whether an Ordinance is Invalid if not Published Within a Specified Number of Days

CITIES AND TOWNS--ORDINANCES--CHARTERS--Whether an Ordinance is Invalid if not Published Within a Specified Number of Days

RCW 35.22.288 provides that the ordinances of first class cities, or a summary thereof, shall be promptly published in the official newspaper of the city.  However, an ordinance is not invalid under RCW 35.22.288 if it is not published within a specified number of days.

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                                                                    July 16, 1992

Honorable Mike Padden
State Representative, District 4
425 John L. O'Brien Building
Post Office Box 40608
Olympia, Washington  98504-0608

                                                                                                                 Cite as:  AGO 1992 No. 16

Dear Representative Padden:

            By letter previously acknowledged you asked:

            Is an ordinance of a first class city invalid under state law if it is not published within a specified number of days after its adoption, as required in the city charter?

                                                               BRIEF ANSWER

            The answer to this question is no.  RCW 35.22.288 provides that the ordinances of first class cities, or a summary thereof, shall be promptly published after adoption at least once in the official newspaper of the city.  RCW 35.22.288 does not condition the validity or operation of an ordinance upon its publication.  Therefore, RCW 35.22.288 is directory, not mandatory.  If a city charter specifies publication within a certain number of days, the validity of the ordinance may depend on an interpretation of the city charter.  In other words, local law may bear on its validity, but it is not invalid by virtue of any state law.

                                                                    ANALYSIS

            Your question asks whether a city ordinance is valid under state law if it is not published within a specified number of days as required in a city charter.  The question combines an inquiry about both local and state law.

            The Legislature has addressed the question of publication of ordinances and city charters in RCW 35.21.180.  This statute, which is applicable to all cities and towns, provides in relevant part:  "Ordinances passed by cities or towns must be posted or published in a newspaper as required by their respective charters[.]"

            While RCW 35.21.180 provides for publication in accordance with a city charter, the statute does not dictate the terms of any charter provision.  The contents of the charter are left to the citizens of the city.  Thus, the validity of an ordinance under a city charter depends on an interpretation of that charter.  The question is governed by the law (charter) of the city, not the law of the state.[1]

            Since the validity of the ordinance turns on an interpretation of the city charter, we conclude that the answer to your question is no.  An ordinance of a first class city is not invalid under state law if it is not published within a specified number of days after its adoption as required in the city charter.

            Although your question involves local law (about which we can be of little assistance), your correspondence indicates your primary concern is with the operation of state law.  Accordingly, we have taken the additional step of reviewing state law (unrelated to a city charter as posed in your question) to see if there is a publication requirement that would invalidate an ordinance if not published within a specified number of days.

            We have reviewed the Revised Code of Washington; there appears to be one statute that generally addresses publication of ordinances of first class cities.[2]  RCW 35.22.288 provides in part:

                        Promptly after adoption, the text of each ordinance or a summary of the content of each ordinance shall be published at least once in the official newspaper of the city.  For purposes of this section, a summary shall mean a brief description which succinctly describes the main points of the ordinance.  When the city publishes a summary, the publication shall include a statement that the full text of the ordinance will be mailed upon request.

                        An inadvertent mistake or omission in publishing the text or a summary of the content of an ordinance shall not render the ordinance invalid.

            In our judgment an ordinance is not invalid under RCW 35.22.288 if not published within a certain number of days.  RCW 35.22.288 does not specify publication within a certain number of days.  More important, RCW 35.22.288 does not condition the validity or operation of an ordinance upon its publication.  This persuades us that RCW 35.22.288 is directory, not mandatory.

            The basic principle is:

                        Charter or statutory provisions as to publication of ordinances or resolutions or notice of their pendency sometimes are construed to be merely directory.  This is usually the case in the absence of a provision that the ordinance shall not take effect until published.  Where provision for publication or notice of an ordinance is regarded as merely directory, it follows that mere failure to publish or give notice does not invalidate the ordinance.

5 E. McQuillin, Municipal Corporations § 16.78, (3d. ed. rev. 1989) (footnotes omitted).

            In Burton v. Tucson, 88 Ariz. 320, 356 P.2d 413 (1960), the Arizona Supreme Court rejected a claim that an ordinance was invalid owing to a defect in publication.  The court ruled:

                        [The ordinance regarding publication] provides that all ordinances shall be published; it does not provide that publication shall be a condition precedent to the validity and operation of an ordinance, or that failure to publish shall render the ordinance void.

                       . . . Where provision for publication of an ordinance is merely directory, it follows that failure to publish does not invalidate the ordinance.

Id., 356 P.2d at 416.  See alsoB. & O. R.R. Co. v. Wright, 198 Md. 555, 84 A.2d 851, 854 (1951); Dover Housing Bd. v. Colbath, 106 N.H. 481, 213 A.2d 923, 925 (1965); Hollander v. Denton, 69 Cal. App. 2d 348, 159 P.2d 86, 88 (1945).

            In State ex rel. Peabody v. Superior Court, 77 Wash. 593, 138 P. 277 (1914), the Washington Supreme Court reached a similar result interpreting the publication requirement in the charter of the city of Seattle.  The charter provided that "all ordinances . . . shall be published at least once in the city official newspaper within three days after the same shall become a law."  Id. at 616.  The ordinance in question was passed on October 13, 1911, and was published for the first time six days later on October 19.  This was beyond the three days specified in the city charter.  The Washington Supreme Court rejected the argument that this defect invalidated the ordinance.  The court said:

            [T]he requirements of the city charter with reference to the publication of ordinances is directory, in so far as the time in which they must be published is concerned.  The purpose of requiring that they be published is to inform the general public of their contents, and it is a sufficient compliance with the requirement that they be published within a reasonable time.

Id.at 617 (emphasis added).

            Two other points support our view that RCW 35.22.288 is directory.  First, RCW 35.22.288 provides that "[a]n inadvertent mistake or omission in publishing the text or a summary of the content of an ordinance shall not render the ordinance invalid."  This supports our view that RCW 35.22.288 is directory and requires substantial rather than strict compliance.  Under RCW 35.22.288 the mistake or omission does not render an ordinance invalid.

            Second, when RCW 35.22.288 was enacted, the Legislature repealed a more strict requirement for publication.  RCW 35.22.288 was enacted in 1988.  Laws of 1988, ch. 168, § 1, p. 740.  The 1988 amendments were part of a comprehensive effort to standardize the publication requirements for cities and towns.  RCW 35.22.288 applies to first class cities.  The same provision was applied to smaller cities and towns.  With regard to second class cities the 1988 amendment provides in part:

                        Section 35.23.310, chapter 7, Laws of 1965 and RCW 35.23.310 are each amended to read as follows:

                        ((Before any ordinance shall take effect, it shall be published in one issue of the official newspaper of the city.))

                        Promptly after adoption, the text of each ordinance or a summary of the content of each ordinance shall be published at least once in the official newspaper of the city.  For purposes of this section, a summary shall mean a brief description which succinctly describes the main points of the ordinance.  When the city publishes a summary, the publication shall include a statement that the full text of the ordinance will be mailed upon request.

                        An inadvertent mistake or omission in publishing the text or a summary of the content of an ordinance shall not render the ordinance invalid.

Laws of 1988, ch. 168, § 2, p. 740 (bill draft form).

            With regard to second class cities, the 1988 amendment repealed a requirement that an ordinance "shall be published" before going into effect and replaced it with a requirement for prompt publication.  The prior law contained a kind of requirement that courts have interpreted as mandatory and replaced it with the kind of provision that courts have interpreted as directory.

            We do not place any great reliance on this legislative history.  However, it is an indication that the Legislature knew the difference between the two kinds of publication requirements.

            To summarize, RCW 35.22.288 requires first class cities to promptly publish ordinances.  First class cities must comply with this requirement.  However, the validity of an ordinance does not  depend upon compliance with RCW 35.22.288.  Accordingly, we conclude that the ordinance of a first class city is not invalid under state law if it is not published within a specified number of days.

            We trust the foregoing opinion will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    WILLIAM B. COLLINS
                                    Senior Assistant Attorney General

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