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AGLO 1973 No. 67 - June 15, 1973
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington
DISTRICTS ‑- LIBRARY ‑- RURAL COUNTY ‑- MEMBER OF BOARD OF TRUSTEES ‑- RESIDENCY
 
(1) A person is not required to be an inhabitant of a rural county library district in order to serve as a member of a board of trustees thereof under the provisions of RCW 27.12.040.
 
(2) RCW 42.12.010 does not operate to cause a vacancy in the office of rural county library district trustee to exist where, by reason of the annexation of a portion of the district to an adjacent city or town, a particular library trustee ceases to be an inhabitant of the district. 
 
                                                              - - - - - - - - - - - - -
 
                                                                   June 15, 1973
 
Honorable Arthur R. Eggers
Prosecuting Attorney
Walla Walla County
407 Drumheller Building
Walla Walla, Washington 99362
                                                                                                               Cite as:  AGLO 1973 No. 67
 
 
Dear Sir:
 
            By letter previously acknowledged you have requested an opinion of this office upon two questions which we paraphrase as follows:
 
            (1) Must a trustee of a rural county library district established pursuant to RCW 27.12.040 be an inhabitant of the unincorporated area of the county which is encompassed in that district?
 
            (2) In the event that question (1) is answered in the negative, does RCW 42.12.010 nevertheless operate to cause a vacancy in the office of rural county library district trustee to exist where, by reason of the annexation of a portion of the district to an adjacent city or town, a particular library trustee "ceases to be an inhabitant" of the district?
 
            We answer both of these questions in the negative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            In considering these questions we take note, at the outset, of the oft-stated rule that
 
            ". . . eligibility to an office in the state is to be presumed rather than to be denied, and . . . any doubt as to the eligibility of any person to hold an office must be resolved against the doubt."1/
 
             [[Orig. Op. Page 2]]
            Chapter 27.12 RCW establishes the various methods by which public libraries are created, operated and governed.  A "rural county library district" is defined in RCW 27.12.010 (5) to mean ". . . a library serving all of the area of a county not included within the area of incorporated cities and towns . . ."  The management of such a district is vested in an appointive board of trustees as provided for in RCW 27.12.190, which reads as follows:
 
            ". . .  In counties and rural county library districts five trustees shall be appointed by the board of county commissioners.  . . .  The first appointments for boards comprised of but five trustees shall be for terms of one, two, three, four, and five years respectively, and thereafter a trustee shall be appointed annually to serve for five years.  The first appointments for boards comprised of seven trustees shall be for terms of one, two, three, four, five, six, and seven years respectively, and thereafter a trustee shall be appointed annually to serve for seven years.  No person shall be appointed to any board of trustees for more than two consecutive terms.  Vacancies shall be filled for unexpired terms as soon as possible in the manner in which members of the board are regularly chosen.  A library trustee shall not receive a salary or other compensation for services as trustee, but necessary expenses actually incurred shall be paid from the library funds.  A library trustee in the case of a city or town may be removed only by vote of the legislative body.  A trustee of a county library or a rural county library district library may be removed by the county commissioners after a public hearing upon a written complaint stating the ground for removal, which complaint, with a notice of the time and place of hearing, shall have been served upon the trustee at least fifteen days before the hearing.  . . ."
 
            However, neither this statute nor any other provision contained in this RCW chapter relating to libraries states either expressly or by implication that residency is a qualification for appointment to such a board.  Moreover, because this is an appointive rather than an elective office, it is not covered by the only general statute establishing residential qualifications which our research has disclosed; namely,  [[Orig. Op. Page 3]] RCW 42.04.020 which provides that:
 
            ". . . no person shall be competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision, unless he be a citizen of the United States and state of Washington and an elector of such county, district, precinct, school district, municipality or other district or political subdivision."  (Emphasis supplied.)
 
            This leaves us, then, with the statute cited in your second question, RCW 42.12.010.  This statute, codifying an act originally passed by the 1866 Washington Territorial Legislature,2/ reads as follows:
 
            "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer.  First, the death of the incumbent; second, his resignation; third, his removal; fourth, his ceasing to be an inhabitant of the district, county, town or village for which he shall have been elected or appointed, or within which the duties of his office are to be discharged; fifth, his conviction of an infamous crime, or of any offense involving a violation of his official oath; sixth, his refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law; seventh, the decision of a competent tribunal declaring void his election or appointment; eighth, whenever a judgment shall be obtained against such officer for breach of the condition of his official bond."  (Emphasis supplied.)
 
            We have underscored the portion of this statute which is to be considered in the light of the facts as you have given them to us:  i.e., a proposed annexation by a city of a portion of the unincorporated area of the county within which area one of the rural county library trustees resides.   [[Orig. Op. Page 4]] Clearly, if the proposed annexation is consummated, the trustee in question will no longer ". . . be an inhabitant of the district . . . for which he . . . [was] appointed . . ." since, by definition, a rural county library district cannot occupy territory within an incorporated city or town.  RCW 27.12.010 (5), supra.  Thus the crucial issue raised by your second question is this:  Does the residency clause of RCW 42.12.010, supra, apply to an appointive office (such as a rural county library district trustee) of a district with respect to which residency is not a qualification for appointment either under its own enabling legislation or any other general law?
 
            Both in so phrasing this question and in negatively answering your first question, above, we have initially considered the possibility that RCW 42.12.010 itself contains (by implication) a residency requirement keyed to the initial appointment or election of a district or other municipal officer.  We have rejected this possible construction, however, for three reasons:  First, it seems apparent to us that this statute on its face only relates to events occurring after an office has validly been assumed by a person then qualified to hold it.  If one of these events then occurs, the office becomes vacant ‑ meaning that it was not vacant until that event took place.  Secondly, we are impressed by the fact that the original enactment of this statute in 1866 long preceded the enactment of RCW 42.04.020, supra, specifically declaring residency to be a qualification for ". . . any elective public office . . ."  See, § 1, chapter 139, Laws of 1919.  Had RCW 42.12.010 been thought already to contain a residency qualification for initial election or appointment, the enactment of this 1919 statute would have been largely a useless act ‑ and, of course, we may not attribute to the legislature an intent to enact that kind of legislation.  Kelleher v. Ephrata School Dist. Etc., 56 Wn.2d 866, 355 P.2d 989 (1960).  And thirdly, to read such a residency qualification into the earlier of these two statutes, RCW 42.12.010, would run contrary to the principle heretofore noted that eligibility to hold public office is to be presumed rather than denied, and its corollary that conditions upon eligibility to hold such office must be clearly expressed.  State ex rel. Weston v. Schragg, supra.
 
            Moving on to your above stated second question, per se, the first matter to be explored is whether RCW 42.12.010 has any application to an office which is wholly appointive ‑ as distinguished from an elective office.  While it is true that the residency clause with which we are here concerned contains the phrase ". . . to which he shall have been elected or appointed . . . ," this need not be taken to mean,  [[Orig. Op. Page 5]] necessarily, that the clause (and statute) thereby applies to both classes of office.  The words "or appointed" could have been written into the statute merely to cover those instances in which a person is serving in an elective office by virtue of an interim appointment to fill a vacancy, as under Article II, § 15 (Amendment 52) of the state Constitution dealing with the filling of vacancies in state legislative or partisan county offices.
 
            With this thought in mind we next note, for whatever significance it may have, the fact that although numerous reported state supreme court decisions pertaining to RCW 42.12.010 have been rendered over the years, in none of the cases has a strictly appointive office been involved.  Instead, in every instance the position involved has been an elective office; e.g., a city mayor, as in State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939), or a county commissioner, as in State ex rel. Austin v. Superior Court, 6 Wn.2d 61, 106 P.2d 1077 (1940).  And, of course, from this it will readily be seen that aside from the significance of that fact by itself, the precise issue here before us has never been reached by the court.  Since residence is a qualification under RCW 42.04.020, supra, for all elective offices, the question of whether a subsequent loss of residence produces a vacancy in an office for which it is not an initial qualification is, per force, beyond the scope of any case in which only an elective office is involved.
 
            Also to be considered in connection with the question of whether RCW 42.12.010 applies to an appointive office such as a rural county library trustee is the original bill title of the 1866 Territorial Law from which it came.  Accord, Ayers v. City of Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940), and cases cited therein which hold that the title to an act may be resorted to as one means of ascertaining legislative intent when such intent cannot be gathered from the body of the act because of ambiguity in the language thereof.  As recorded in the official reports of that Territotial legislative session,3/ this measure was entitled "An Act relating to elections and the mode of supplying vacancies."  (Emphasis supplied.)
 
            From this, together with the lack of any cases in which the statute has ever been applied to a strictly appointive office, it may well be argued that its application is largely if not entirely limited to persons holding elective offices ‑ whether by election or appointment thereto.   [[Orig. Op. Page 6]] We do not, however, rest our ultimate answer to your second question on this premise for it certainly must be acknowledged that certain of the other causes of a vacancy listed in the statute ‑ such as death or resignation, most obviously ‑ will produce a vacancy in any office, elective or appointive.  Accord, 63 Am.Jur.2d, Public Offices, § 130, et seq.  Instead, going back in a sense to our earlier reasoning with respect to the preliminary question of whether the here critical residency clause of RCW 42.12.010 establishes an initial qualification for either appointment or election to an office for which residency is not stated by some other statute to be a requirement for holding that office, we here must simply conclude that that clause is not applicable to such an office ‑ either in terms of an initial qualification or in terms of the later creation of a vacancy.
 
            Under that portion of the statute a vacancy is said to occur upon the incumbent
 
            ". . . ceasing to be an inhabitant of the district . . . for which he shall have been elected or appointed, or within which the duties of his office are to be discharged . . ."  (Emphasis supplied.)
 
            This language clearly presupposes that at some earlier point in time the incumbent was an inhabitant of the district ‑ for otherwise, he could not have ceased to be one.  And yet if (as we have earlier concluded in the case of rural county library board) residence is not required in order for an individual to be appointed to a particular district office, it is entirely possible that a given appointee to that office will never have been a resident of the district he is serving ‑ from which it would follow that the occurrence of no subsequent events could cause him to cease to be one.  The only appointee to such an office who could later cease to be an inhabitant of the district would be one who, perchance, resided therein at the time of his appointment and assumption of office, even though this was not legally required.
 
            Thus, for example, if the residence clause of RCW 42.12.010, supra, were deemed to be applicable to an appointive office such as that of a rural county library district trustee ‑ for which residence is not a requisite for appointment ‑ the following incongruous case might well be imagined:  Two persons are appointed to the board of trustees of the district here in question, one of whom resides in the city of Walla Walla (and thus not in the district itself ‑ RCW 27.12.010 (5), supra) and the other of whom resides in an unincorporated area of Walla Walla county which is a part of the district.  The first appointee, following his assumption of office, then moves into the city and thus ceases to be an inhabitant of the district.  The second appointee also moves ‑ to Bangkok, Thailand ‑ but never having been a resident of the library district he does not, by this move, cease to be one.   [[Orig. Op. Page 7]] The result?  The first trustee's position becomes vacant but the second's does not.
 
            In construing this or any other statute we must strive to avoid such an absurdity if at all possible.  In re Horse Heaven Irrigation District, 11 Wn.2d 218, 118 P.2d 972 (1941).  In this case, however, there are only two possibilities; first, the RCW 42.12.010 itself impliedly makes residence a qualification for the initial appointment of a rural county library trustee; or, second, that at least the residence clause of that statute does not apply to this office so as to cause a vacancy to occur whenever a duly appointed trustee ceases to be an inhabitant of the district.  We have, of course, already considered and rejected the first of these possibilities for the reasons earlier explained.  Therefore, we are left with only the second ‑ and to avoid the above illustrated incongruity it is that solution ‑ that construction of the statute ‑ which we hereby adopt.
 
            Accordingly, having initially answered your first question in the negative, we answer your second question in the same manner as well.  Inasmuch as a trustee of a rural county library district established pursuant to RCW 27.12.040 is not required to be an inhabitant of the unincorporated area of the county which is encompassed in that district, it follows that RCW 42.12.010 does not operate to cause a vacancy in that office to exist where, by reason of the annexation of a portion of the district to an adjacent city or town, a particular library trustee "ceases to be an inhabitant" of the district.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
PHILIP H. AUSTIN
Deputy Attorney General
 
 
WAYNE L. WILLIAMS
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/State ex rel. Weston v. Schragg, 158 Wash. 74, 78, 291 Pac. 321 (1930); see, also, State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).
 
2/Territorial Laws of 1866, p. 28, § 2.
 
3/13 Laws of Washington Territory 29 (1866).
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