SEWER DISTRICTS; COMMISSIONERS, WHEN ELECTED AND WHEN OFFICE IS VACATED; COMMISSIONERS' TERM OF OFFICE

SEWER DISTRICTS; COMMISSIONERS, WHEN ELECTED AND WHEN OFFICE IS VACATED; COMMISSIONERS' TERM OF OFFICE. 

(1) An election of certain commissioners in Kitsap County Sewer District No. 1 may be held on March 13, 1956.

(2) A sewer district commissioner vacates his office when he removes his residence from the sewer district and ceases to be entitled to vote in sewer district elections.

(3) Commissioners elected on March 13, 1956, will hold office either for a term of six years or for the unexpired term of a commissioner who has vacated his office. 

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                                                                 February 9, 1956 

Honorable John C. Merkel
Prosecuting Attorney
Kitsap County
307 Dietz Building
Bremerton, Washington                                                                                                              Cite as: AGO 55-57 No. 200

 Dear Sir:

             You have requested our opinion on questions arising from the following facts:

             "On November 4, 1952, at an election held in Kitsap County Sewer District No. 1, Mr. C. G. Phelps was elected for a term of two years, Mr. Leonard Scifers was elected for a term of four years, and Gilbert Kaseburg was elected for a term of six years.  Subsequently Mr. C. G. Phelps moved away from the State of Washington, resigned his position as sewer district commissioner and the  [[Orig. Op. Page 2]] remaining commissioners appointed Raymond B. Hunsaker in his place.  Thereafter Mr. Gilbert Kaseburg moved out of the district but has not tendered his resignation as sewer district commissioner and has continued to act as such commissioner.

             "No election was held in the district in 1954. Since the election on November 4, 1952, the sewer district election laws have been changed and the Kitsap County Auditor has received inquiries which indicate that Declarations of Candidacy will be filed for all three positions, for the position now held by Mr. Hunsaker on the ground that his term has expired, on the position now held by Mr. Scifers on the ground that his term will expire and for the position now held by Mr. Kaseburg on the ground that in moving from the district he has become ineligible to act as sewer district commissioner, being no longer an elector within the district."

             Your questions are:

             (1) May an election be held in Kitsap County Sewer District No. 1 on March 13, 1956?

             (2) Is the office of sewer district commissioner vacated where one of the commissioners moves his residence outside of the sewer district?

             (3) If an election should be held on March 13, 1956, what would the terms of office of the newly elected commissioners be in view of the terms of office by which the commissioners were elected on November 4, 1952?

             Our answers to your first and second questions are in the affirmative.  Our answer to your third question appears in the analysis below.

              [[Orig. Op. Page 3]]

                                                                     ANALYSIS

             1. In order to reach a conclusion concerning whether an election for sewer district commissioners may be held on March 13, 1956, we think it necessary to clarify the existing situation with respect to the terms of office to which the present commissioners were elected.

             The election held on November 4, 1952, must be considered to have taken place pursuant to the provisions of § 7, chapter 210, Laws of 1941, as amended by § 6, chapter 140, Laws of 1945, which provides in part:

             "At the same election at which the proposition is submitted to the voters as to whether the sewer district shall be formed or reorganized, three (3) sewer commissioners shall be elected to hold office respectively for the terms of two (2), four (4) and six (6) years.  Until their respective successors are elected and qualified, the term for each nominee for Sewer Commissioner shall be expressed on the ballot.  Thereafter in Class 'A' and first class counties, as provided by chapter 53 of the Laws of 1923, as amended (sections 5143, 5144, 5147 and 5148 of Remington's Revised Statutes), there shall be held every two years, an election for a Sewer Commissioner to hold office for a period of six (6) years and until a successor is elected and qualified.  And thereafter, in all counties other than Class 'A' and first-class as provided by chapter 279, Laws of 1927, as amended (sections 5150 and 5152 of Remington's Revised Statutes), there shall be held every two (2) years an election for a Sewer Commissioner to hold office for six (6) years and until his successor is elected and qualified."

             Inasmuch as Kitsap County is a county of the second class, the provisions of chapter 279, Laws of 1927, become important.  Section 1, chapter 279, Laws of 1927, provides in part:

             "All city, school district and port district elections, other than in class A and first class counties, whether general or special, and whether for the election of officers,  [[Orig. Op. Page 4]] or for the submission to the voters of such city, port district or school district, of any question for their adoption and approval or rejection, in any port district, containing a school district of the first class, shall be held on the first Saturday in December in the year in which they may be called.  * * *"

             This section was an amendment of chapter 170, Laws of 1921, § 2 of which provides in part:

             "The term of every city, port district and school district officer elected under the provisions of this act shall begin on the first Monday in January following his election:  * * *"

             We believe the terms of office of the commissioners elected on November 4, 1952, must be regarded as having commenced on the first Monday of January, 1953, in accordance with the statutory law in force at that time.  In this connection, see the opinion of this office dated March 6, 1950, to the secretary of state, a copy of which is enclosed.

             We may therefore summarize the terms of office of the commissioners elected on November 4, 1952, as follows:

             Mr. Phelps:  January, 1953, to January, 1955.

             Mr. Scifers:  January, 1953, to January, 1957.

             Mr. Kaseburg:  January, 1953, to January, 1959.

             When Mr. Phelps resigned, Mr. Hunsaker was duly appointed to serve in his stead "until the next regular election for commissioners."  Section 1, chapter 212, Laws of 1947.

             In view of the fact that the next regular election for sewer district commissioners was never held, it must be assumed that Mr. Hunsaker continued on to fill the office Mr. Phelps had vacated, until that term of office expired in January, 1955.  Insofar as Mr. Hunsaker has filled the office from the date  [[Orig. Op. Page 5]] Mr. Phelps' term expired to the present, it may be concluded that during that time Mr. Hunsaker has been serving "until his successor is elected and qualified."  Section 6, chapter 140, Laws of 1945.

             There can be no doubt, therefore, that the office presently occupied by Mr. Hunsaker is open to candidates who desire to file for it at the next regular election for sewer commissioners.

             The next such election must be held on the second Tuesday of March (March 13, 1956) in accordance with § 12, chapter 55, Laws of 1955, which provides in part:

             "* * * Thereafter, every two years there shall be elected a commissioner for a term of six years and until his successor is elected and qualified, at an election held on the second Tuesday of March in the even numbered years and conducted as provided by RCW 29.13.020, as now constituted or hereafter amended, in class AA or class A counties, and by RCW 29.13.040, as now constituted or hereafter amended, in all other counties.

             "* * *

             "The terms of sewer district commissioners shall begin on the first Monday in June following their elections."

             Thus, the successful candidate for the office presently held by Mr. Hunsaker will have a term of office of six years extending from June, 1956, to June, 1962.

             It is to be recalled that Mr. Scifers' term of office will not expire until January, 1957.  Therefore, this office is not presently open for election on March 13, 1956.  In this connection, § 12, chapter 55, Laws of 1955, provides in part:

             "All sewer district commissioners elected for a regular six year term on the second Tuesday of March, 1955, shall remain in office until their successors are elected and qualified at the general district election to be held  [[Orig. Op. Page 6]] on the second Tuesday of March, 1962.  There shall be no general sewer district election held in the year 1957 and those sewer district commissioners whose terms would have expired in 1957, but for the provisions of this act, shall remain in office until their successors are elected and qualified at the general sewer district election to be held on the second Tuesday of March, 1958.  There shall be no general sewer district election held in the year 1959 and those sewer district commissioners whose terms would have expired in 1959, but for the provisions of this act, shall remain in office until their successors are elected and qualified at the general sewer district election to be held on the second Tuesday of March, 1960."

             Thus, Mr. Scifers may hold over from January, 1957, to the first Monday in June, 1958, when the candidate elected at the election held on the second Tuesday of March, 1958, will commence his six year term of office.

             2. Turning now to the office presently held by Mr. Kaseburg, we hold that Mr. Kaseburg has legally vacated his office by moving his residence out of Kitsap County Sewer District No. 1.

             RCW 42.04.010 provides:

             "A public officer is any person elected or appointed to perform duties prescribed by statute on behalf of the state, or any of its political subdivisions, or institutions, and includes a deputy, or other person, appointed under authority of law to perform such duties."

             RCW 42.04.020 provides in part:

             "No person shall be competent to qualify for or hold any elective public office within the state, or any county, city, district, precinct, or other political subdivision, unless he is a citizen of the United States and the state and an elector of such  [[Orig. Op. Page 7]] county, city, district, precinct, or other political subdivision."

             RCW 56.12.030 (1953 Supp.) provides in part:

            "* * * Any person residing in the district who is at the time of election a qualified voter may vote at any election held in the sewer district."

             Inasmuch as the office of sewer commissioner is a public office, Mr. Kaseburg became ineligible to hold that office when he removed his residence from the sewer district and lost his entitlement to vote in the sewer district elections.

             We conclude therefore that in the March 13, 1956 election candidates may file for the office to which Mr. Kaseburg was elected.  The successful candidate will serve for the remainder of Mr. Kaseburg's term of office, which expires in January, 1959; and thereafter he will hold over until the first Monday of June, 1960, when the commissioner elected at the March, 1960 election will commence his six-year term of office.  Section 12, chapter 55, Laws of 1955.

             3. We may now summarize our conclusions concerning the terms of office to which candidates at the March 13, 1956 election will be elected.  At this time there will be but two positions on the ballot.

             (a) The commissioner elected to replace Mr. Hunsaker will be elected for a six-year term commencing in June, 1956, and expiring in June, 1962.

             (b) The commissioner elected to replace Mr. Kaseburg will be elected for the remainder of Mr. Kaseburg's six year term, which expires in January, 1959, and he will hold over until his successor takes office in June, 1960.

             The commissioner elected to replace Mr. Scifers will be elected at the election to be held in March, 1958, and his six-year term of office will  [[Orig. Op. Page 8]] extend from June, 1958, to June, 1964.

             We hope the foregoing opinion may prove of assistance to you.

 Very truly yours,
DON EASTVOLD
Attorney General 

J. CALVIN SIMPSON
Assistant Attorney General