LOCAL OPTION ELECTIONS

LOCAL OPTION ELECTIONS

Where petition is filed for a local option election in a unit consisting of all portions of a county outside of incorporated cities and towns, and certain territory has, subsequent to the last general election and prior to the election at which the question is sought to be submitted, been annexed to an incorporated city within the area, the votes cast in the annexed area at the last general election should be deducted in determining the number of "electors voting at the last general election within such unit" within the meaning of Rem. Rev. Stat. 7306-84.

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                                                                October 19, 1950

Honorable Lawrence Hickman
Prosecuting Attorney
Whitman County
Colfax, Washington                                                                                                              Cite as:  AGO 49-51 No. 368

Dear Sir:

            We acknowledge receipt of your letter of October 16, wherein you have requested our opinion upon the following question:

            "A local option petition has been filed with the Auditor of Whitman County under Remington's Revised Statute 7306-84 providing for the submission of the question of the sale of liquor in all that portion of Whitman County outside the incorporated cities and towns.  In the spring of 1950 a substantial rural area was annexed to the City of Pullman.  Should the votes cast in the annexed area at the last general election be deducted in determining the number of 'electors voting at the last general election within such unit' within the meaning of the statute?  * * *"

             [[Orig. Op. Page 2]]

            The conclusions reached may be summarized as follows:

            The votes cast in the annexed area at the last general election should be deducted.

                                                                     ANALYSIS

            Section 82, chapter 62, Laws of 1933 Ex. Sess. (Rem. Supp. 7306-82) provides that:

            "For the purpose of an election upon the question of whether the sale of liquors shall be permitted as hereinafter provided, the election unit shall be any incorporated city or town, or all that portion of any county not included within the limits of incorporated cities and towns."

            Having thus clearly declared what shall constitute a "unit" for the purposes of such election, the act continues in section 84 thereof (Rem. Supp. 7306-84) as follows:

            "Any unit referred to in section 7306-82 may hold such election upon the question of whether the sale of liquor shall be permitted within the boundaries of such unit, upon the filing with the county auditor of the county within which such unit is located, of a petition subscribed by qualified electors of the unit equal in number to at least thirty per cent of the electors voting at the last general election within such unit.  * * *"

            It is apparent that the territory which has become annexed to the city of Pullman is not and cannot be considered as being a part of the unit in which an election is sought, namely, all that portion of the county not included within the limits of incorporated cities and towns.  It is therefore our opinion that where section 84, supra, (Rem. Supp. 7306-84) requires "a petition subscribed by qualified electors of the unit equal in number to at least thirty per cent of the electorsvoting at the last general election within such  [[Orig. Op. Page 3]] unit," the "unit" there referred to is the unit as it exists today, after the annexation, and not the unit as it may have existed at the time that the last general election was held.  Thus, all the statute requires is that the petition be signed by thirty per cent of the electors within the present unit, who voted at the last general election.  The argument has been advanced that the above language which we have underlined compels a conclusion that in determining the sufficiency of the petition, the standard used should be thirty per cent of the electors of the unit as it existed at the time of the last general election.  But this argument is fallacious for the reason that the unit, as it exists today, is the unit in which the election is to be held, and, pursuant to the annexation above referred to, it is an entirely different unit than that which existed at the time of the last general election.  To hold otherwise, in other words to say that the word "unit" for the present purpose of holding an election, consists of the unincorporated territory, minus the annexed territory, as we must perforce do, and then to say that for the purpose of determining the sufficiency of the position, we must use as a standard an entirely different unit, namely the uninhabited portions of the county including the annexed territory, and thus require the signatures of thirty per cent of the voters of this last described unit, is to violate the spirit as well as the letter of the law.  The reason for the thirty per cent requirement is pointed out in State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120, a decision construing the former local option law (Laws of 1909, p. 153) which contains the identical language here in question.  On page 548 of the Washington Reports, the court said:

            "The fact that a petition calling for thirty percent of the voters is required further sustains our judgment.  [That a city election is a general election within the meaning of the act.]  The last general election may usually be taken as a fair index of the number of voters who will exercise the franchise at the one next following, and it is manifest that the legislature intended that an election should not be called upon a small petition or unless a fair proportion of those who had theretofore exercised the franchise in the unit should manifest a desire therefor."  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            It may readily be perceived that to require the signatures of thirty per cent of the voters of the unit as it existed prior to the annexation would in effect, since the unit territory is now smaller, raise the required percentage to an undetermined figure in excess of the prescribed thirty per cent which the legislature has pronounced as "a fair proportion of those who had theretofore exercised the franchise in the unit * * *".

            It follows of course that the signatures of those electors who reside in the annexed territory may not be counted, since they are not "qualified electors of the unit" within the meaning of section 84, supra.

            Lest there be any misunderstanding, the conclusions here expressed are intended to be limited to the facts here presented, viz., a change in thearea of a unit occurring subsequent to the last general election, and prior to the election at which the local option question is sought to be submitted.  The same result would not follow if there were a mere population loss in a unit, as opposed to the present situation where theunit itself is changed by reason of a loss in area.  Our conclusion is that in the present instance, the unit itself has changed and that therefore in determining the sufficiency of the petition, the vote cast by the population of the area divorced from the unincorporated area of the county by annexation to the city should not be considered for any purpose.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General