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AGO 1951 No. 197 - December 26, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

ELIGIBILITY OF MEMBER OF BOARD OF FIRE PROTECTION DISTRICT AFTER HE SELLS HIS HOME AND MOVES OUT OF THE DISTRICT; PART-TIME RESIDENCE WITHIN THE DISTRICT.

A fire district commissioner who moves his principal place of abode from the district ceases to be a resident elector and therefore becomes ineligible to remain in office.

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                                                               December 26, 1951

Representative Edward E. Henry
535 Central Building
Seattle 4, Washington                                                                                               Cite as:  AGO 51-53 No. 197

Dear Sir:

            Receipt is acknowledged of your letter of November 23, 1951, in which you ask the following questions:

            "1. A member of the Board of King County Fire Protection District No. 4 was a resident of the district at the time he was elected and some time afterwards sold his home and moved out of the district and at present resides in an apartment house in the City of Seattle.  He is still 'a registered voter' in the district.  Is he eligible to maintain his position as a Fire District Commissioner under the provisions of the Fire Protection District law?

            "2. Assuming the above facts to be true, and in addition, assuming that said Commissioner maintains part-time residence and pays board and room at an address within the district, is he eligible to maintain his position as a qualified member of the Board of Fire Commissioners?"

             [[Orig. Op. Page 2]]

            It is our conclusion that one who has moved from a fire protection district, even though he remains a registered voter therein, ceases to be eligible to hold the position of fire district commissioner.  The fact that such a person maintains part time residence and pays board and room at an address within the district probably does not qualify him as a member of the Board of Fire Commissioners of the district.

                                                                     ANALYSIS

            The eligibility of fire district commissioners is established by § 3, chapter 162, Laws of 1945 (Rem. 1945 Supp. § 5654-122), the material portion of which reads:

            "The affairs of the district shall be managed by a Board of Fire Commissioners composed of three (3) qualified resident electors of the district.  * * *"

            The condition of eligibility set out in the statute is that one be a resident elector.  The use of the word "resident" in connection with the word "elector" indicates that the legislature intended some qualification other than merely being an elector.  Being an elector carries with it the condition of legal residence or domicile.  (See Fifth Amendment to the Constitution.)  The legislature must have meant something more or it would not have attached the word "resident" to the word "elector" in prescribing the qualification.  In the case ofHackett v. City of New Haven (Conn.) 130 Atl. 121, the Supreme Court of Connecticut held that a statute requiring one to be a "resident elector" as a condition to holding an office meant that he must have his physical abode in the area and one did not meet the qualifications by having a legal residence or domicile there even though such facts were sufficient to permit him to vote in the district.  The court said:

            "* * * The phrase went into the law, it seems to us, to accomplish a very definite purpose; that is, to provide that in an office like that of the member of the finance board the actual residence of the officer shall be in the city, where he may be in readiness for attention to the duties of the office with regularity and promptness‑-that is, in the language of the market places, 'on the job.'  * * *"

            In the case just cited the individual in question had formerly lived within the city but had moved outside and kept a room within the city where he stayed when convenience required, and it was apparently his intention to move his home back  [[Orig. Op. Page 3]] to the city as soon as proper arrangements could be made.  The court nevertheless said that the words "resident elector" prescribed a qualification with which he did not comply.  That case is so closely in point on its facts to the inquiry which you have made that we believe its reasoning should govern.

            We must, therefore, conclude that under the facts stated in your letter the individual about whom you inquire has become ineligible by reason of his moving out of the district.

            The second question which you propound is whether the maintenance of a part time residence and the keeping of a room at an address within the district would maintain his eligibility.  We believe that it would not, since the legislature apparently intended that one, to be eligible, must physically live within the district.  It might be possible that a person could so divide his time between two places of abode that it would be difficult to determine at which he actually resides.  We do not know whether such a case is presented in the instance about which you inquire.  Consequently, we do not wish to pass upon the facts as to whether an individual who maintains an apartment outside and also a room within the fire district, has his abode in one or the other.

            We assume from the way the matter is stated in your letter, that this individual has made his principal abode outside of the district.  If that is correct, under the reasoning of the case above cited he does not meet the qualification of a "resident elector."  If one becomes disqualified by removing from the district, the fact that he was qualified at the time of his election does not make him eligible to continue in office.  The law is stated in 42 Am.Jur. 912, as follows:

            "* * * The fact that the candidate may have been qualified at the time of his election is not sufficient to entitle him to hold the office, if at the time of the commencement of the term or during the continuance of the incumbency he ceases to be qualified."

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
d
Assistant Attorney General

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