ELECTIONS ‑- TIME ‑- DIKING DISTRICTS ‑- ELECTIONS

ELECTIONS ‑- TIME ‑- DIKING DISTRICTS ‑- ELECTIONS.

An election in a diking district not held on the statutory date is invalid.

                                                                  - - - - - - - - - - - - -

                                                                   June 18, 1954

Honorable James E. Duree
Prosecuting Attorney of Pacific County
P.O. Box 552
Raymond, Washington                                                                                                   Cite as:  AGO 53-55 No. 274

Dear Sir:

            In a previously acknowledged letter you ask the opinion of this office upon the question of the validity of a certain diking district election in your county.

            You state that an election (we presume the annual commissioners' election) in the district was held on Tuesday, March 2, 1954, instead of Tuesday, March 9, 1954, as provided by statute.  The diking district officials failed to notify the County Auditor of the election, and so there was a period of about five days that the registration books were not closed for the original registration of voters.  The registration books were actually closed thirty days prior to March 9.

            We believe that this election was invalid.

                                                                     ANALYSIS

            Provision is made for the annual election of diking district officers in RCW 85.04.035.

            "The term of office of a district commissioner shall be three years and until his successor is  [[Orig. Op. Page 2]] elected and qualified, except those chosen at the first election, which shall be: The one receiving the highest number of votes shall serve three years, the second highest, two years, and the third highest, one year.  The next election shall be held on the second Tuesday in March next, and annually thereafter.  The term of office shall begin on the first Monday of April next.

            "The election shall be conducted by the board of commissioners of such district, who shall prepare the ballot therefor.  The expenses of the election shall be defrayed by the district, and the judges, clerks, and inspectors of the election shall each receive two dollars per day for services so rendered.

            "At least thirty days before the election the district commissioners shall post notice thereof in four public places in the district, and publish notice of the election at least once in a legal newspaper published in the district, or if none is published therein, then in a legal newspaper in the county in which the district is situated.  Such notice shall contain the names of the two judges and one inspector of the election, who shall be electors of the district appointed by the commissioners.  The commissioners may declare the entire district as one precinct and shall designate in such notice the place of voting.  If the district is large, the commissioners may designate in the notice of election the number and places of voting.

            "The commissioners shall meet on the day following the election and canvass the votes, declare the results, and issue certificates of election."

            In this year the second Tuesday in March fell on the 9th; the election held on March 2 was not in accord with the law.

             [[Orig. Op. Page 3]]

            The question of whether the statutory specification of an election date is directory or mandatory is not well settled in the law.  18 Am. Jur. 250, sec. 112; 29 C.J.S. 101, sections 76 and 77; 121 A.L.R. 987.  We find no decision of our Supreme Court which has definitely aligned this state with either line of authority.  However, the case ofState v. Howell, 59 Wash. 492, 110 Pac. 386, seems to indicate that elections can be held only when authorized by law.

            We believe that the view previously expressed by you‑-that the time provision is mandatory and thus the election void‑-is supported by the better authority.  See, for instance,McCoy v. Fisher, (W.Va. 1952) 67 S.E. (2d) 543;McDaniel v. Edwards, (1939) 128 S.W. (2d) 1007; 198 Ark. 288; Clark v. Stubbs, (Texas, 1939) 131 S.W. (2d) 663;May v. City of Laramie, (Wyoming, 1942) 131 P. (2d) 300, 58 Wyoming 240 [[58 Wyo. 240]].

            It would follow, if the election is invalid, that the officers previously elected would continue in office, for the term of office is "* * * three years and until his successor is elected and qualified * * *."  The March election was invalid, so no successor was elected or qualified.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH S. BERGMAN
Assistant Attorney General