PORT DISTRICTS ‑- COMMISSIONERS ‑- ELIGIBILITY ‑- RESIDENCE QUALIFICATIONS

PORT DISTRICTS ‑- COMMISSIONERS ‑- ELIGIBILITY ‑- RESIDENCE QUALIFICATIONS

Under the facts of this case a port commissioner who was a resident of the district upon the date of his election and for a total of three years prior thereto, was qualified to hold the office even though the residence period was not consecutive for the three years immediately preceding his election.

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                                                               September 1, 1953

Honorable Phillip Sheridan
Prosecuting Attorney
Snohomish County
Central Building
Everett, Washington                                                                                                             Cite as:  AGO 53-55 No. 125

Dear Sir:

            This is in answer to your request of August 4, 1953, for our opinion regarding residence requirements of port district commissioners.  The commissioner involved had not been a continuous resident of the district for which he was elected for the three years immediately prior to his election.  He had, however, been a resident of the district at various times during the past thirteen years, for more than the required period taken in the aggregate.  The question is:

            Does RCW 53.12.020 require that a port district commissioner be a resident of his district for three consecutive years immediately preceding his election?

            Our conclusion is:

            Under the facts of this case, the port commissioner is qualified where he is a resident of the district upon the date of election, and for a total of three years prior to his election, even though the residential period was not consecutive.

                                                                     ANALYSIS

            At the outset, it should be observed that residence is always a question of fact and legal residence is not always identical with actual residence.  It is basically a matter of intent, although physical presence must coincide with that intent at some point.  If the commissioner, having lived within the district for some time, moved therefrom temporarily, with the intent to return, his residence within the district may never have terminated.  Assuming that his residence was terminated as a matter of fact, as set forth in your letter, then it becomes necessary to consider the requirement of the statute.

            RCW 53.12.020 provides, in part:

            "A commissioner shall be a voter and freeholder in the port district,who is and has been a resident for three years, * * * of the commissioner district from which he is elected.  * * *"  (Emphasis supplied)

             [[Orig. Op. Page 2]]

            The answer to the question rests upon the interpretation of the underscored clause.  The issue is whether the statute contemplates consecutive residence or cumulative residence.  The law is clear in this state that, under such a statute, the candidate must be eligible at the time of his election, and must remain qualified during his incumbancy in office.  State ex rel. Reynolds v. Howell, 70 Wash. 467, 470, 126 Pac. 954; State ex rel. Willis v. Monfort, 93 Wash. 4, 6, 159 Pac. 889;State ex rel. Cooper v. Warnock, 16 Wn. (2d) 697 708, 134 P. (2d) 706;State ex rel. Pennick v. Hall, 26 Wn. (2d) 172, 176, 173 P. (2d) 153.

            The case ofRasin v. Leaverton, 181 Md. 50, 28 A. (2d) 612, is factually similar.  But the question of cumulative as opposed to consecutive residence under the constitutional provision there involved, was not discussed in the court's opinion.  The obvious purpose of the language of such statutes is to insure that all candidates shall possess at least some familiarity with local affairs.

            Statutes imposing residential qualifications upon candidates for office, regardless of their fitness otherwise, are an abridgment of the right of the people to select their own officials.  For this reason, such provisions should be liberally construed in favor of eligibility.  SeeState v. Blanchard, 6 L. Ann. 515; Schardein v. Harrison, 230 Ky. 1, 18 S.W. (2d) 316; 46 C.J. 937.  This rule should not apply, of course, where a part of the residential period was so remote in time or location as to afford no opportunity to maintain the familiarity with local affairs which the statute seeks to insure.

            In this case the commissioner has maintained his actual residence in District # 3 since 1940, with the exception of a certain period or periods between 1947 and 1953, the length of which is not indicated in your letter.  During this interval he resided in District # 2, also in the city of Everett.  However, he was again an actual resident of District # 3 at the time of his election as commissioner from that district in 1952.  He also owned property in District # 3 upon which he intended to build a home, for the three‑year period prior to his election.

            Under such factual circumstances, the result of the Rasin case, supra, is of doubtful authority.  It seems to us that the facts here preponderate in favor of a finding that his legal residence was not interrupted.  If this were true, the candidate would be eligible under either construction of the statute.  If his legal residence were interrupted, we feel that the facts of this case are such as to require the application of the rule of liberal interpretation mentioned above.

            In our opinion, the statute, if taken literally, requires no more than cumulative residence for the three‑year period.  However, we also believe that cases so extreme may occur that a different interpretation is required in order to carry out the purpose of the act.  The present case does not require any deviation from ordinary literal interpretation.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General