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AGO 1957 No. 60 - May 07, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

VACANCIES IN COUNTY PARTISAN ELECTIVE OFFICES

Vacancies in partisan elective county offices are filled by board of County Commissioners.

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

                                                                    May 7, 1957

Honorable Charles O. Carroll
Prosecuting Attorney of King County
County-City Building
Seattle, Washington                                                                                                                Cite as:  AGO 57-58 No. 60


Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office, relative to Senate Joint Resolution No. 14, now known as the Thirty-second Amendment to the Washington State Constitution, as adopted by the voters of this state in November, 1956.

            We paraphrase your question as follows:

            In view of the limited title as stated on the ballots in the General Election of November 6, 1956, does the procedure outlined for filling such vacancies as may occur in either house of the legislature, also apply to partisan county elective offices?

            We answer your inquiry in the negative.

                                                                     ANALYSIS

            The full text of Senate Joint Resolution No. 14, the ballot title and summary as set forth in the ballot are as follows (the language added to the Constitution thereby has been underlined):

             [[Orig. Op. Page 2]]

                        "SENATE JOINT RESOLUTION NO. 14

                        "*BALLOT TITLE

                        "FILLING VACANCIES IN STATE LEGISLATURE

            "Shall the 13th Amendment of the Constitution be amended to provide that vacancies in the Legislature shall be filled by the county commissioners from an approved list submitted by the county central committee of the political party of the preceding legislator; and in the event it be a joint district, from lists submitted by the state central committee for joint action by county commissioners involved; providing for failure to appoint within sixty days, the Governor shall fill vacancy from said list?

            "BE IT RESOLVED, By the Senate and House of Representatives of the State of Washington in legislative session assembled:

            "THAT, At the general election to be held in this state on the Tuesday next succeeding the first Monday in November, 1956, there shall be submitted to the qualified voters of the state for their approval and ratification, or rejection, an amendment to the thirteenth amendment of the Constitution of the State of Washington, to read as follows:

            "Such vacancies as may occur in either house of the legislatureor in any partisan county elective office shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs:  PROVIDED, That the person appointed to fill the vacancy must be from the same legislative district and the same political party as the legislator whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, and the person so appointed shall hold office until his successor is elected at the nest general election, and shall have qualified:  PROVIDED, That in case of a vacancy occurring in the office of joint senator,or joint representative, the vacancy shall be filledfrom a list of three nominees selected by the state central committee, by appointment by the joint action of the boards of county commissioners of the counties  [[Orig. Op. Page 3]] composing the joint senatorialor joint representative district, the person appointed to fill the vacancy must be from the same legislative district and of the same political party as the legislator whose office has been vacated, and in case a majority of said county commissioners do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall within thirty days thereafter, and from the list of nominees provided for herein, appoint a person who shall be from the same legislative district and of the same political party as the legislator whose office has been vacated. . ."

            It is noted that the most pertinent part of Senate Joint Resolution No. 14 provides:

            "Such vacancies as may occur in either house of the legislatureor in any partisan county elective office shall be filled by appointment by the board of county commissioners in the county in which the vacancy occurs. . . ."

            Previously, that portion of Amendment 13 to the Constitution provided:

            "Such vacancies as may occur in either house of the legislature shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs, . . ."

            Thus, it seems clearly to have been the intention of the legislature, when enacting the subject resolution to make provision for the filling of vacancies in county elective offices by the board of county commissioners as well as vacancies in the legislature.  The more serious question raised, however, is whether the board of county commissioners, in the event of a vacancy in a partisan county elective office, is required to follow the same procedures in filling such vacancy as would be followed in the case of a vacancy in the legislature.

            In other words, must the person selected by the board of county commissioners to fill a vacancy in a county elective partisan office be a  [[Orig. Op. Page 4]] member of the same party and from the same legislative district as the official whose office has been vacated?

            We conclude that Senate Joint Resolution No. 14, as adopted by the voters of the State of Washington does not require the board of county commissioners to select an official of the same party and legislative district in filling a vacancy in an elective partisan office.  The most persuasive reason for this conclusion is the language of the proviso, which specifically refers only to legislators.  As has been noted, it reads as follows:

            ". . .PROVIDED, That the person appointed to fill the vacancy must be from the same legislative district and the same political party as the legislator whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee. . ." (Emphasis supplied)

            The word "legislator" is open to but one construction.  It can only mean a member of the state legislature.  To place any other interpretation on the term would be to abandon the plain language used in that portion of the resolution.  Furthermore, another construction would lead to unreasonable results.  For example, if a prosecuting attorney living in one legislative district within a particular county should die, would the board of county commissioners be required to appoint to the office of the prosecuting attorney a person residing in the same legislative district?

            This conclusion makes it unnecessary for us to consider the effect of the ballot title of Senate Joint Resolution No. 14, which was prepared pursuant to the authority contained in RCW 29.27.060.  The title does not indicate that the resolution has any application to partisan county elective offices; but this, of course, if it raises any question at all, raises a purely constitutional one.  It has been a long-standing policy of this office to presume an act passed by the legislature constitutional until declared otherwise by a court of competent jurisdiction (see AGO 57-58 No. 13, and previous opinions there cited); and the same rule should properly apply to acts voted into law by the people.

            At all events, the provision that vacancies in partisan county elective  [[Orig. Op. Page 5]] officials should be filled by appointment by the board of county commissioners, changes nothing in the constitution.  A substantially identical provision is already to be found in Article XI, section 6, which read as follows:

            "VACANCIES IN COUNTY, ETC., OFFICES, HOW FILLED.  The board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct or road district office of such county by appointment, and officers thus appointed shall hold office till the next general election, and until their successors are elected and qualified."

            We trust the foregoing will prove helpful.

Yours very truly,

JOHN J. O'CONNELL
Attorney General


JOHN W. RILEY
Chief AssistantAttorney General


                                                         ***   FOOTNOTES   ***

* as prepared by the former Attorney General

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