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AGO 1952 No. 400 - September 09, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

PORT COMMISSIONERS ‑- QUALIFICATION FOR OFFICE ‑- RESIDENCE ‑- DOMICILE

A person's domicile remains in the county precinct where he has maintained his home although he has, for social and business convenience, lived for a time in another place if his intent is that his domicile remain at the place of his usual home.

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                                                               September 9, 1952

Honorable Harold G. Kimball
Senator Forty-Fourth District
5410 Ballard Avenue
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 400

Dear Mr. Kimball:

            You have requested an opinion upon the following questions:

            "1. May a person qualify under the quoted statute for the position of a candidate for the office of port commissioner of a port district (a position for which all King County votes) where he is a freeholder in the district, has maintained his voting residence in that district for a continuous period of eighteen years, while at the same time maintaining a second dwelling place in the city of Seattle outside the area of the particular port district, for purposes of business and social convenience, with the intent at all times to regard the county precinct, situated within the port district, as his place of residence?

            "2. If your answer to the first question is in the affirmative, would your answer be different in the situation described here where an original dwelling place of the potential candidate is in the process of  [[Orig. Op. Page 2]] being sold under a contract of conditional sale, and a second dwelling place has been leased within the original precinct, for the purpose of retaining voting residence in that precinct until such time as the vendor can purchase a second beach property located within the original precinct and port district?"

            Our conclusion as to each question is that the person's domicile remains in the county precinct where he has maintained a residence although he has for social and business convenience lived for a time in another district.  This conclusion necessarily rests on the assumption that the person's intent that his domicile remain in the county precinct is a bona fide intent.

                                                                     ANALYSIS

            The statute referred to by your first question is RCW 53.12.020 which provides:

            "A commissioner shall be a voter and freeholder in the port district, who is and has been a resident for three years, except as hereinafter provided, of the commissioner district from which he is elected.  He shall hold office for a term of three years beginning on the second Monday in January following his election."

            Our court inIn re Mullens, 26 Wn. (2d) 419 at page 444, 174 P. (2d) 790, stated:

            "* * * Statutory 'residence' is equivalent to domicile.  Especially is this true with regard to the subjects of voting, taxation, eligibility to office, jurisdiction in divorce, probate and administration, and various others."

            The problem then becomes one of determining the elements which constitute domicile and, while it is not difficult to state the general requisites of domicile, it is often difficult to determine whether the facts of any particular case fulfill those requisites.

            Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile, and one's domicile is established  [[Orig. Op. Page 3]] and continues until it is superseded by a new domicile.  In re Lassin's Estate, 33 Wn. (2d) 163, 204 P. (2d) 1071; Texas v. Florida, 306 U.S. 398, 83 L.Ed. 817, 59 S. Ct. 563.  Traditional formulas require the conjunction of physical presence and intent to remain permanently in the location to bring about the domiciliary change.  In re Mullens, supra.

            Under the facts which you have presented in your first question it appears clear that the person's domicile remains in the county precinct.  It is stated his intent at all times has been that the county precinct remain his home.  Of course, what one says is his intent may be refuted by his actions.  The question is one of fact and, if litigated, a court might well find that the facts indicate an intent contrary to that which the person asserts.  So, in your question when you speak of the person's intent, it must be assumed that it is abona fide intent and upon that assumption the answer to your first question is yes.

            Our answer to your second question is the same as to the first.  The problem still remains a question of the bona fides of the person's intent to retain the county precinct as his preeminent home.  Whether he owns property in fee or merely leases is not controlling.  This fact at most would be but one factor to consider in evaluating his expressed intent.

            It should be reiterated that the question of the location of one's domicile is one largely determined by the facts.  No one single circumstance will control the determination.  While a person's expressed intent is of some weight in arriving at a conclusion as to the place of his domicile, all the facts concerning his relation to the particular place and other places he may frequent must also be evaluated.

Very truly yours,

SMITH TROY
Attorney General

KEITH GRIM
Assistant Attorney General

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