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AGO 1962 No. 96 - February 19, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- PUBLIC UTILITY ‑- SECOND CLASS ‑- COMMISSIONERS ‑- ELECTION TO FILL VACANCIES.

(1) Where there are two vacancies on the board of commissioners of a second class public utility district both vacancies are to be filled by special election held not more than forty days after such vacancies occur.

(2) The commissioners elected at a special election to fill vacancies created on the board of commissioners of a second class public utility district are elected to hold office for the unexpired term of the commissioners whom they replace.

(3) The election to fill vacancies on the board of commissioners of a second class public utility district must be held forty days after the occurrence of the vacancies pursuant to RCW 54.12.010.  The county auditor, who is charged by law with the power and duty of conducting public utility district elections (in other than class AA or class A counties), is authorized to prescribe a reasonable time within the forty-day period in which petitions for nominations may be filed.

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                                                                February 19, 1962

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 96

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office upon certain questions relating to the filling of two vacancies in the position of public utility district commissioner in a second class public utility district.

            Our attention has been directed to RCW 54.12.010 which provides,inter alia, that the commissioners shall be elected at the regular biennial general election and hold office until their successors shall have been elected and qualified.  The statute further provides in material part:

            ". . . Nominations for public utility district commissioners shall be by petition signed by one hundred qualified electors of the public utility district to be filed in the office of the county  [[Orig. Op. Page 2]] auditor not more than sixty days, and not less than forty-five days prior to the day of such election: . . . In the event of a vacancy in said office, such vacancy shall be filled at the next general election, the vacancy in the interim to be filled by appointment by the remaining commissioners.  If more than one vacancy exists at the same time in a district of the second class, . . . a special election shall be called by the county election board upon the request of the remainder, or, that failing, by the county election board, such election to be heldnot more than forty days after the occurring of such vacancies."  (Emphasis supplied.)

            In light of the above statute, you have presented three questions which we quote from your letter as follows:

            "1. Areboth vacancies subject to the statutory special election, or is only one position to be filled to restore a majority which, in turn, then appoints a third commissioner?

            "2. Does the commissioner (or commissioners, as the case may be) elected to office as a result of such special election serve out the remainder of the unexpired term of the position concerned, or is the holding of the special election to be construed merely as a substitute to the interim appointment procedure with such unexpired terms subject to be voted upon again at the approaching November 6, 1962 general election?

            "3. RCW 54.12.010 provides that the special election is to be held not more thanforty days after the occurring of such vacancies.  The same section establishes a period for candidates to file nominating petitions as not more than 60 nor less than 45 days prior to an election.  Obviously, both statutory times cannot be honored.

            "Are we correct in our assumption, that the time set for candidates to file must prevail and that as a consequence the forty day limitation for holding of the election be construed as directory?"

            We answer your questions as set forth in the analysis.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            With respect to your first question, we think that the express language of the statute makes it quite clear that where there is more than one vacancy in a second class district, such vacancies are to be filled by special election.  Where the language of a statute is plain, clear and unambiguous, there is no room for construction since the meaning will be discovered from the wording of the statute itself.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).  Accordingly, please be advised that both vacancies are subject to the special election procedure.

            Addressing ourselves to your second question, it is to be noted that, although the election to fill a single vacancy takes place "at the next general election," the election to fill such vacancy is nonetheless a special election.  SeeState ex rel. Rummens v. Superior Court, 160 Wash. 520, 295 Pac. 730 (1931).  As stated therein at page 522:

            ". . . A general election is one held to select an officer after the expiration of the full term of the former officer; a special election is one held to supply a vacancy in office occurring before the expiration of the full term for which the incumbent was elected. . . ."

            In other words,all elections to fill vacancies in the office of public utility district commissioner are special elections.  The only difference between an election to fill one vacancy and an election to fill more than one vacancy is the time when such election is to be held.  In both cases, the word "vacancy" contemplates an unexpired term and the election, regardless of the time when it is held, fills such vacancy.

            Thus, in answer to your second question, the commissioners elected to office as a result of the special election would hold office for the duration of the unexpired term and until their successors were elected and qualified.

            Your third question must be resolved in the light of two well-established principles of statutory construction, to wit: (1) A statute should not be given an interpretation which would make it an absurdity when it is susceptible of a reasonable interpretation.  State ex rel. Thorp v. Devin, 26 Wn. (2d) 333, 173 P. (2d) 994 (1946), and cases cited therein; (2) a statute should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void, or insignificant.  Martin v. Dept. of Social Security, 12 Wn. (2d) 329, 121 P. (2d) 394 (1942), and cases cited therein.

             [[Orig. Op. Page 4]]

            Applying the foregoing principles to RCW 52.12.010, supra, the provision for filing nomination petitions not more than sixty, nor less than forty-five, days prior to the day of election must be construed as being applicable only to those cases where the office of public utility commissioner is to be filled at the time of a regular biennial general election.

            This, of course, leaves the statute ambiguous with respect to the nominating method and procedure to be employed where there is more than one vacancy to be filled in the office of public utility district commissioner.  However, we believe this defect is cured in part by reference to RCW 29.21.060, governing candidates for district offices in general, and, as last amended by § 2, chapter 247, Laws of 1959, providing in material part:

            "All candidates for district offices, other than in irrigation districts or school districts embracing a city of over 100,000 population, shall file declarations of candidacy not more than sixty nor less than forty-five days prior to the date of the election with the officer or board charged with the conduct of the election:  Provided, That in the case of port districts and public utility districts, and in no others, nominations shall be made by means of nominating petitions: . . ."  (Emphasis supplied.)

            See, also, RCW 54.12.010, supra, as to the requirements of the nominating petitions.

            Parenthetically, we direct your attention to the fact that RCW 29.21.060,supra, was also amended by the 1959 legislature in § 7, chapter 175, Laws of 1959, presenting the question of which one of the 1959 amendments prevailed.  However, this question is not material to our consideration here since both amendments provided that nominations in public utility districts be by means of nominating petitions.

            From the foregoing statute, we conclude that it was the legislative intent thatall nominations for the position of public utility district commissioner be by the petition method.

            The law still remains silent with respect to the filing period for such petitions.  It is the rule that where one is given a "privilege" to take some action and no time is fixed for its exercise he must do  [[Orig. Op. Page 5]] so within a reasonable time.  Larsen v. The Lilly Estate, 34 Wn. (2d) 39, 208 P. (2d) 150 (1949).  According to a previous opinion of this office, the same rule is applicable to the time for the performance of a duty by a public officer.  See AGO No. 1581, to the superintendent of public instruction, April 21, 1924, a copy of which is enclosed.  See, alsoState v. Pohl, 214 Minn. 221, 8 N.W. (2d) 227 (1943); Hartley v. Vitielo, 113 Conn. 74, 154 Atl. 255 (1931).  RCW 54.12.010,supra, expressly provides that the special election is to be held not more than forty days after the vacancies occur.  Under RCW 29.13.040, the county auditor in each county other than class AA or class A counties is vested with jurisdiction over and the duty to conduct all elections in public utility districts.  Pursuant to the provisions of RCW 29.21.060, supra, we have concluded that the candidates for the vacant offices must be nominated by petition.

            Under these circumstances, the nomination petitions must be filed within such time as to enable the county auditor to perform his statutory duties regarding the conduct of the election.  Furthermore, in our opinion, the county auditor must be deemed to have the power to prescribe a reasonable time within the forty-day period beyond which nomination petitions will not be accepted.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE S. STOOKEY
Assistant Attorney General

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