MUNICIPAL ELECTIONS ‑- ELECTION IRREGULARITIES ‑- DIRECTORY V -- MANDATORY STATUTES ‑- 'WITHIN FIVE DAYS'

MUNICIPAL ELECTIONS ‑- ELECTION IRREGULARITIES ‑- DIRECTORY V --MANDATORY STATUTES ‑- "WITHIN FIVE DAYS"

(1) The statutes providing for compensation of election officers and that there shall be but one set of election officers are directory rather than mandatory, and a failure to comply with their provisions will not affect the validity of a municipal election otherwise properly conducted.

(2) The "within five days" provision of RCW 35.22.070 does not require that the city commissioners may not initiate proceedings for the submission of the proposed charter to the voters prior to the filing of the affidavit of publication.

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                                                                    June 1, 1953

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 60

Dear Sir:

            We have your letter of May 4, 1953, in which you advise that Walla Walla, a third class city operating under the commission form of government, is considering the procedural steps necessary to advance to the rank of a city of the first class under charter government.

            You stated that in addition to the election of freeholders to draft the charter and the subsequent election for the purpose of submitting the charter and election of first officials as provided by section 10, Art. XI of the state constitution and chapter 35.22 RCW, the city commissioners plan to hold a prior special election to determine whether or not the citizens of Walla Walla desire to change their form of government.  You have asked for an opinion on the following questions:

            (1) Can the precinct election officers for the preliminary election serve on a voluntary basis?

             [[Orig. Op. Page 2]]

            (2) If so, may one set of precinct election officers serve during the polling hours and another set of volunteers serve after 8:00 o'clock P. M. to count the ballots?

            (3) RCW 35.22.070 states in part:

            "Within five days after the filing with the city clerk of affidavits of publication, which affidavits shall be filed immediately after the last publication, the legislative authority of the city shall initiate the proceedings for the submission of the proposed charter to the qualified voters of the city for their adoption or rejection.  * * *"  (Emphasis Supplied)

            You inquire whether or not the above statute means that city commissioners can take no procedural steps until after the thirty-day publication of the charter has been completed, or whether it can be construed to mean that the city commissioners can initiate the election procedure at any time, but such initiation must be commenced within five days after completion of the full publication period of the charter.

            Our conclusions may be summarized as follows:

            (1) and (2) The statutes provide for compensation of election officers and that there shall be but one set of election officers; however, the validity of an election otherwise properly conducted may not be successfully attacked for for failure to observe these requirements.

            (3) The "within five days" provision of RCW 35.22.070 does not mean that the city commissioners may not initiate proceedings for submission of the proposed charter to the voters prior to the filing of the affidavit of publication.

                                                                     ANALYSIS

            RCW 29.45.120 provides for the compensation of precinct election officers.  An opinion of this office dated May 31, 1933, advised that a failure to compensate election officials would not affect the validity of the election.  However, claims for compensation by these officials must be honored even though they had agreed to serve gratuitously.  We adhere to the conclusion stated therein.  RCW 29.45.050 provides that there shall be one set of election officials in each precinct.  It is our conclusion that both of these statutes are directory rather than mandatory.  The rule governing the effect of election irregularities may be  [[Orig. Op. Page 3]] stated as follows:

            If the statute provides that certain acts or things shall be done within a particular time or in a particular manner and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.

            InMurphy v. Spokane, 64 Wash. 681, at 686, the court said:

            "* * * the rights of the voters should not be prejudiced by the errors or wrongful acts of the election officers, unless it be made to appear that a fair election was prevented by reason of the alleged irregularities.  * * *"

            Particularly, in an election such as this, which is not an essential part of the statutory formula for changing the class of a city, the courts would be reluctant to set aside an election for alleged irregularities.  We do not advise that directory statutes may be safely ignored.  We simply conclude that if through inadvertence a city fails to comply with the two statutes referred to,supra, the omission will not invalidate the election, provided that all qualified voters are afforded an opportunity to vote on the proposition.

            Your third inquiry involves a problem of statutory construction of the term "within five days."  InAdams v. Ingalls Packing Co., 30 Wn. (2d) 282, the court held that although the conditional sales contract filing statute requires that a memorandum of such sale shall be filed within ten days after the taking of possession by the vendee, that this language does not mean that the filing cannot precede possession and still be valid.  We believe that the five‑day provision in RCW 35.22.070 indicates a legislative intention to expedite rather than limit the process of submitting the proposed charter to the voters.  Accordingly, we conclude that the language contained in the cited statute,supra, does not preclude the city commissioners from initiating proceedings for the  [[Orig. Op. Page 4]] submission of the proposed charter to the voters prior to the filing of the affidavit of publication.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General