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AGO 1962 No. 157 - August 24, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- IRRIGATION ‑- ELECTIONS ‑- QUALIFICATIONS OF VOTERS ‑- PERSONS HOLDING TITLE OR EVIDENCE OF TITLE ‑- NUMBER AND LOCATION OF POLLING PLACES.

(1) A contract purchaser of land in an irrigation district under an ordinary contract for the sale of real property holds evidence of title to such land and therefore, if otherwise qualified, is entitled to vote in an irrigation district election.

(2) A contract vendor of land in an irrigation district holds title to such land, and therefore, if otherwise qualified, is entitled to vote in an irrigation district election until such time as he does, by appropriate delivery of a deed, pass title to the purchaser.

(3) The executor or administrator of the estate of a deceased holder of title to land in an irrigation district does not hold title or evidence of title to such land, and therefore is not entitled to vote in an irrigation district election.

(4) The heirs or devisees of a deceased holder of title to land in an irrigation district do hold title to such land and therefore, if otherwise qualified, are entitled to vote in an irrigation district election.

(5) The guardian of an incompetent person who holds title to land in an irrigation district does not, as guardian, hold title or evidence of title to such land, and therefore, is not entitled to vote in an irrigation district election.

(6) An incompetent person who holds title to land in an irrigation district is, if otherwise qualified, entitled to vote in an irrigation district election.

(7) Persons who hold title to land in an irrigation district as tenants in common each are entitled, if otherwise qualified, to vote in an irrigation district election.

(8) Persons who hold title to land in an irrigation district as joint tenants each are entitled, if otherwise qualified, to vote in an irrigation district election.

(9) In the case of partners owning land in an irrigation district as such, present law is not clear as to whether they may, if otherwise qualified, vote in an irrigation district election.

(10) A husband and wife holding land in an irrigation district as community property may, if otherwise qualified, each vote in an irrigation district election.

(11) A trustee who holds title to land in an irrigation district for the benefit of another person is, if otherwise qualified, entitled to vote in an irrigation district election.

[[Orig. Op. Page 2]](12) The beneficiary of a trust which holds title to land in an irrigation district does not hold title or evidence of title to such land, and therefore, is not entitled to vote in an irrigation district election.

(13) There may not be more than one polling place in each precinct in an irrigation district, either at an election for the formation of a proposed irrigation district or at an election held after organization of an irrigation district.

(14) Where elections are held after the formation of an irrigation district, each polling place must be physically located within the territorial limits of the irrigation district; however, in the case of an election for the formation of a proposed irrigation district, the polling places need not be physically located within the territorial limits of the proposed district.

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

                                                                 August 24, 1962

Honorable H. Maurice Ahlquist
State Representative, 11th District
Hilltop Ranch
Touchet, Washington

                                                                                                              Cite as:  AGO 61-62 No. 157

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a number of questions pertaining to irrigation district elections.  We paraphrase your questions as follows:

            (1) Under the provisions of RCW 87.03.045, establishing, in part, the qualifications of voters in irrigation district elections, which, if any, of the following described persons is "A person . . . who holds title or evidence of title to land in the district . . .":

            (a) The contract purchaser of land in the district under an ordinary contract for the sale of real property;

            (b) The contract vendor under this same ordinary contract for the sale of real property;

            (c) The executor or administrator of the estate of a deceased holder of title to land in the district;

            (d) The heirs or devisees of the decedent title holder described in (c), supra;

            (e) The guardian of an incompetent holder of title to land in the district;

             [[Orig. Op. Page 3]]

            (f) The incompetent ward who actually holds title to land in the district as described in (e), supra;

            (g) Persons who hold title to land in the district as tenants in common;

            (h) Persons who hold title to land in the district as joint tenants;

            (i) Partners owning land in the district as such;

            (j) A husband and wife holding land in the district as community property;

            (k) A trustee who holds title to land in the district for the benefit of another person;

            (l) The beneficiary of the trust described in (k), supra?

            (2) May there be more than one polling place in each precinct in an irrigation district?

            (3) Must the polling places be physically located within the territorial limits of the irrigation district?

            You have indicated that the basis of your interest in the several questions is a desire to be apprised of which, if any, of the points raised are in need of clarifying legislation.  With this thought in mind, we answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            RCW 87.03.045 provides, in material part:

            "A person twenty-one years old, being a citizen of the United States and a resident of the stateand who holds title or evidence of title to land in the district or proposed district shall be entitled to vote therein, . . .  Where land is community property both the husband and wife may vote if otherwise qualified. . . ." (Emphasis supplied)

            So far as we have been able to ascertain, this statute has been construed by the Washington court upon only one occasion; namely, in State ex rel. Holt v. Hamilton, 118 Wash. 91, 202 Pac. 971 (1921).  The specific question presented in that case was the same as part (a) of your first question,supra; i.e., whether the  [[Orig. Op. Page 4]] contract purchaser of land in the district under an ordinary real estate contract "holds title or evidence of title" within the meaning of the statute.

            The Washington court answered this question in the affirmative by holding that a contract purchaser held "evidence of title".  The reasoning behind the court's decision is to be found in the following excerpt from its opinion, at p. 92:

            "A copy of the contract, which is alleged in the complaint to be of the same character as all of the other contracts involved, is attached to and made a part of the complaint.  It is the ordinary contract for the sale of real property, with the time essence clause and provisions for forfeiture.  It contains provisions requiring the purchaser to improve the land and grow crops upon the same, and expressly requires the purchaser to pay all irrigation district assessments.  There is a further provision that the purchaser shall be entitled to keep possession as long as the contract is kept in good standing.  We do not think it is necessary to define the legal standing of a contract of this character in all respects.  In our opinion, the legislature used the words 'evidence of title' for a purpose, and to permit the people who have written evidence of their right to acquire title, coupled with possession and actual control of the land, the people, who are the ones really interested in the proper operation of the affairs of the district and are the ones who have to meet its burdens, to have a voice in selecting the officers to operate the irrigation district."  (Emphasis supplied)

            Upon the basis of this decision of the Washington court, we advise, in response to part (a) of your first question, supra, that a contract purchaser of land in the irrigation district under an ordinary real estate contract is a person who "holds . . . evidence of title" within the meaning of RCW 87.03.045, supra.

            With regard to part (b) of your first question, supra, until the contract vendor has actually conveyed the land in question to the purchaser upon performance of the contract by the purchaser, the contract vendor retains legal title.  See,Ashford v. Reese, 132 Wash. 649, 233 Pac. 29 (1925), and cases following.  Accordingly, until the contract vendor does convey legal title, it seems an inescapable conclusion that he continues to "hold title" within the meaning of RCW 87.03.045,supra.  Consequently (assuming that  [[Orig. Op. Page 5]] he meets the various other qualifications set forth in the statute), such a contract vendor is entitled to vote in an irrigation district election.

            It will be observed that, from the conclusions thus far stated in this opinion, more than one person may be entitled to vote on the basis of interest in the same parcel of land.  This factor seems to us to be of no consequence in regards to the validity of the conclusions.  Clearly, it is not the land which votes (through the act of a person holding title or evidence of title therein); rather, it is any person (otherwise qualified) who "holds titleor evidence of title to land in the district . . ." (Emphasis supplied) who is entitled to vote.  Accordingly, as in the circumstances thus far discussed, where one person holds title and another person holds evidence of title in the same land, it follows that both are entitled to vote.

            Normally, of course, it is the contract purchaser of real property who has actual possession and control of the land.  State ex rel. Holt v. Hamilton, supra.  Yet, it is to be noted, by sections 2-5, chapter 105, Laws of 1961 (cf. RCW 87.03.031 ‑ 87.03.034) the legislature has made elaborate provision for absentee voting in irrigation district elections.  While not conclusive, this legislation is at least persuasive of a notion on the part of the legislature that numerous persons, including contract vendors not in actual possession of their land, who reside at an inconvenient distance from the territorial area of the irrigation district, are nevertheless entitled to vote in the irrigation district election.

            Further, it should also be noted and emphasized that assessments made in order to carry out the purposes and functions of an irrigation district run against the benefited land,in rem, and not against the holders of varying legal or equitable interests in the land, in personam.  See,Roberts v. Richland Irrigation District, 169 Wash. 156, 13 P. (2d) 437 (1932), affirmed 289 U.S. 71, 53 S.Ct. 519, 77 L.Ed. 1038; State ex rel. Wells v. Hartung, 150 Wash. 590, 274 Pac. 181 (1929);State ex rel. Clancy v. Columbia Irr. Dist., 121 Wash. 79, 208 Pac. 27 (1922), and other authorities cited therein.  See also, RCW 87.03.270.  Accordingly, both the contract vendor who holds legal title, and the contract purchaser who holds evidence of title have a very real interest in the conduct of the affairs of the district.  On the other hand, neither, any more than the other, is personally liable for the payment of assessments.

             [[Orig. Op. Page 6]]

            Next, by parts (c) and (d) of your first question, supra, you inquire as to the status of an executor or administrator of the estate of a decedent holder of title to land in an irrigation district and, as well, as to the status of the heirs or devisees of such decedent.

            InIn re Gallatin Irrigation District, 48 Mont. 605, 140 Pac. 92 (1914), under a statute similarly worded to our own RCW 87.03.045, supra, it was held that the executrix of the estate of a decedent title holder did not hold either title or evidence of title to the land of the decedent.  This, we believe, would also be the holding of the Washington court, particularly in view of RCW 11.04.250, which provides:

            "When a person dies seized of lands, tenements or hereditaments, or any right thereto or entitled to any interest therein in fee or for the life of another,his title shall vest immediately in his heirs or devisees, subject to his debts, family allowance, expenses of administration and any other charges for which such real estate is liable under existing laws. . . ." (Emphasis supplied)

            Thus, the executor or administrator of the estate of the decedent does not hold title to the decedent's real property.  Nor does the executor or administrator hold "evidence of title" as that phrase was construed inState ex rel. Holt v. Hamilton, supra.  We repeat, for ease of reference, the following pertinent language from theHamilton opinion:

            ". . . In our opinion, the legislature used the words 'evidence of title' for a purpose, and to permit the people who have written evidence of their right to acquire title, coupled with possession and actual control of the land, the people, who are the ones really interested in the proper operation of the affairs of the district and are the ones who have to meet its burdens, to have a voice in selecting the officers to operate the irrigation district."

            Obviously, while an executor or administrator may have actual control of the land of the decedent for certain purposes, he has no right, as executor or administrator, to acquire title to the land.

            On the other hand, pursuant to RCW 11.04.250, supra, the heirs or devisees of the decedent do "hold title" to the decedent's land.   [[Orig. Op. Page 7]] Consequently, in specific response to part (d) of your first question, we conclude that such heirs and devisees who are otherwise qualified as provided in RCW 87.03.045,supra, are entitled to vote in irrigation district elections.  Again, for the reasons previously stated, the fact that there may be more than one person thus holding title in a particular parcel of land is of no consequence.

            As for the case of guardian and ward, presented by parts (e) and (f) of your first question,supra, it is manifest that legal title to the land remains vested in the ward.  The guardian holds neither title nor evidence of title, again, as the latter phrase is construed inState ex rel. Holt v. Hamilton, supra.  Accordingly, it is our opinion that the guardian is not entitled to vote in his own behalf.  The ward, as holder of title, is entitled to vote (assuming his incompetence does not otherwise disqualify him ‑ see, Article VI, section 3, Washington constitution).  In the event the ward is unable to vote because of extreme incompetence, a question may arise as to whether his guardian may cast a vote on his behalf.  However, we do not understand you to be presently concerned with that specific question.

            By the next several parts of your first question, supra, you inquire with regard to the voting qualifications of various types of co-owners of land in an irrigation district; namely, tenants in common, joint tenants, and partners.  You also inquire regarding the voting qualifications of a husband and wife owning land in an irrigation district as community property.

            With regard to the husband and wife holding land as community property, RCW 87.03.045,supra, expressly provides:

            ". . . Where land is community property both the husband and wife may vote if otherwise qualified. . . ."

            In the case of persons who are co-owners of land in an irrigation district either as tenants in common or as joint tenants, it is our opinion that each "holds title" to the land within the meaning of RCW 87.03.045, supra.  Accordingly, each, if otherwise qualified, may vote in an irrigation district election.  We recognize, in thus concluding, that substantial differences exist regarding the precise nature of the interest of a tenant in common and of a joint tenant in real property.  See, article entitled "Joint Tenancy for Washington?", 35 Wash. L. Rev. 292.  However, we see no reason to distinguish between these two types of co-ownership for purposes of the instant problem.

             [[Orig. Op. Page 8]]

            In the case of land located in an irrigation district which is owned by a partnership as partnership property, RCW 25.04.240 provides:

            "The property rights of a partner are (1) his rights in specific partnership property, (2) his interest in the partnership, and (3) his right to participate in the management."

            RCW 25.04.250 provides:

            "(1) A partner is co-owner with his partners of specific partnership property holding as a tenant in partnership.

            "(2) The incidents of this tenancy are such that:

            "(a) A partner, subject to the provisions of this chapter and to any agreement between the partners, has an equal right with his partners to possess specific partnership property for partnership purposes; but he has no right to possess such property for any other purpose without the consent of his partners.

            "(b) A partner's right in specific partnership property is not assignable except in connection with the assignment of rights of all the partners in the same property.

            "(c) A partner's right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.  When partnership property is attached for a partnership debt, the partners, or any of them, or the representative of a deceased partner, cannot claim any right under the homestead or exemption laws.

            "(d) On the death of a partner, his right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his right in such property vests in his legal representative.  Such surviving partner or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose.

            "(e) A partner's right in specific partnership property is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin."

             [[Orig. Op. Page 9]]

            In view of these statutory provisions, it is arguable that, in the case of partnership property, each partner "holds title" within the meaning of RCW 87.03.045,supra, and, accordingly, if otherwise qualified, may vote in an irrigation district election.  However, this point is not at all clear.  It is equally arguable that where land is owned by partners as such, title is "held" by the partnership as a separate entity.  See RCW 25.04.080.  Yet the statute here under consideration makes no specific provision for voting by an authorized agent of a partnership owning land in an irrigation district.  On the other hand, RCW 87.03.045, supra, does provide:

            ". . . An agent of a corporation owning land in the district, duly authorized in writing, may vote on behalf of the corporation by filing with the election officers his instrument of authority. . . ." (Emphasis supplied)

            Recalling your interest in securing clarifying legislation where necessary, perhaps some thought might be given to enacting a similar provision as regards to partnerships owning land in an irrigation district.  (See also, in this regard, an opinion of this office dated December 11, 1945, to Mr. H. P. Singleton [[1945-46 OAG 467]], a copy of which is herein enclosed, wherein we made a similar suggestion concerning land owned by a state institution).

            By the final parts of your first question, you have inquired as to the voting qualification (in terms of holding title or evidence of title to land) of (1) a trustee holding land in an irrigation district in trust for another, and (2) the "other" or beneficiary, of the trust.

            A trust in real estate implies a holding of legal title by one for the benefit of another, who holds the equitable title ‑ a separation of the legal estate from the beneficial enjoinment.  State ex rel. Wirt v. Superior Court, 10 Wn. (2d) 362, 116 P. (2d) 752 (1941).  Accordingly, the trustee, holding legal title to the land in trust, is entitled (if otherwise qualified) to vote in an irrigation district election.

            On the other hand, we do not believe that the beneficiary of the trust "holds title or evidence of title" in the land held in trust, within the meaning of RCW 87.03.045,supra.  It seems clear to us that by "title", is meant legal "title".  Accordingly, the beneficiary, who holds equitable title, does not "hold title" within the meaning of the statute here under consideration.  Nor, do we believe, does the beneficiary "hold . . . evidence of title."  Again referring toState ex rel. Holt v. Hamilton, supra, it is to be remembered that "evidence of title" was construed by the Washington court as pertaining to,

             [[Orig. Op. Page 10]]

            ". . . the people who have written evidence of their right to acquire title, coupled with possession and actual control of the land, . . ."

            Manifestly, though the beneficiary of the trust may or may not be in actual possession and control of the land, in any event he ordinarily has no "written evidence of . . . (his) right to acquire title, . . .".

            Accordingly, it is our opinion that the beneficiary of a trust is not, by reason of his beneficial interest in land in an irrigation district, qualified to vote in an irrigation district election.  In thus concluding, we are nevertheless aware that federal legislation governing the Columbia Basin Project (involving an area of the state of Washington wherein are situated innumerable irrigation districts) provides:

            ". . . Lands held in trust for any person shall, for the purpose of sections 835 to 835c-5 of this title, be deemed to be held both by that person and, if the trustee derives any profit or advantage from the trust other than a moderate fixed fee for the management of the same, by the trustee."  16 U.S.C. 835 (a) (b) (v).

            However, what may be the case for the purpose of this particular federal legislation cannot be said to govern the meaning and application of the phrase "who holds title or evidence of title" as it appears in RCW 87.03.045, supra.

            We turn next to consideration of your second question; namely, whether there may be more than one polling place in a precinct within an irrigation district.

            In considering this question, it is first to be noted that separate statutes govern the conduct of elections for the formation of an irrigation district, and the conduct of post-organization irrigation district elections.

            With regard to elections for the formation of an irrigation district, section 2, chapter 57, Laws of 1955 (cf. RCW 87.01.070) provides as follows:

            "The board of county commissioners shall establish a convenient number of election precincts in the proposed district and define the boundaries thereof, and designatea polling place and appoint the necessary election officersfor each precinct;. . ."  (Emphasis supplied)

             [[Orig. Op. Page 11]]

            In the case of post-organization elections, Laws of 1889-90, p. 674, section 5 (cf. RCW 87.03.085) provides:

            "Fifteen days before any election held under this act, subsequent to the organization of any district, the secretary of the board of directors shall cause notices to be posted in three public places in each election precinct, of the time and place of holding the election, and shall also post a general notice of the same in the office of said board, which shall be established and kept at some fixed place to be determined by said board, specifying the polling places of each precinct.  Prior to the time for posting the notices, the board must appoint for each precinct, from the electors thereof, one inspector and two judges, who shall constitute a board of election for such precinct.  If the board fail to appoint a board of election, or the members appointed do not attend at the opening of the polls on the morning of election, the electors of the precinct present at that hour may appoint the board, or supply the place of an absent member thereof.  The board of directors must, in its order appointing the board of election, designate the house or place within the precinct where the election must be held."  (Emphasis supplied)

            Clearly, the first statute above quoted, providing for the conduct of elections for the formation of irrigation districts, authorizes the designation of but a single polling place in each precinct.  Accordingly, we conclude that in the conduct of an election for the formation of an irrigation district, there may not properly be designated more than one polling place in each precinct in the district.

            As for post-organization irrigation district elections, it is to be noted that the statutory provision governing the conduct of same, last above quoted, is self-contradictory on the point of the number of voting places for each precinct.  One portion of the statute, relating to the content of the mandatory general notice of election, provides that the notice shall specify ". . . the pollingplaces of each precinct."  (Emphasis supplied)

            On the other hand, the last sentence of the statute, relating to the order appointing the board of election, provides:

             [[Orig. Op. Page 12]]

            ". . . The board of directors must, in its order appointing the board of election, designatethe house or place within the precinct where the election must be held."  (Emphasis supplied)

            It was observed by the Washington court in State ex rel. Tacoma R. &. P. Co. v. Pub. Serv. Com., 101 Wash. 601, 172 Pac. 890 (1918) that:

            ". . . It is a familiar canon of construction that the different sections or provisions of the same statute should be so construed as to harmonize and give effect to each; but if there is an irreconcilable conflict,the subsequent one prevails. . . ." (Emphasis supplied)

            The phrase "subsequent one prevails" was interpreted by the court, inState ex rel. Olympia Credit Bur. v. Ayer, 9 Wn. (2d) 188, 114 P. (2d) 168 (1941) to mean ". . . the latest in order of position will prevail."

            Inasmuch as the provision of Laws of 1889-90, p. 674, section 5 (cf. RCW 87.03.085),supra, which directs the board of directors of an irrigation district, in its order appointing the board of election, to ". . . designate the house or place within the precinct where the election must be held." is subsequent to, or is latest in order of position in relation to, the provision that the general notice of the election shall specify ". . . the pollingplaces of each precinct.", (Emphasis supplied) application of the rule of construction last above stated results in the conclusion that, in post-organization elections as well as in elections for the formation of an irrigation district, only one polling place may be designated in each precinct.

            In further support of this conclusion, it seems obvious that only a "house or place" which has been designated by the board of directors as a polling place can be a polling place for the purpose of the election.  Therefore, because the provision of the statute under which the board of directors of the irrigation district is to designate a polling place is expressed in the singular rather than the plural, it follows that there can be but a single polling place in the precinct.  A general notice of election purporting to specify polling places in the plural would be ineffective as a designation of polling places in addition to the "house or place" designated by the board of directors in the order appointing the board of election.

            It is the conclusion of this office, then, that in the case of a post-organization irrigation district election as well as in the case of an election for the formation of an irrigation district, only a single polling place may be designated for each precinct within the district.

             [[Orig. Op. Page 13]]

            By your final question, i.e., question number 3, supra, you have asked whether the polling place may be located outside of the territorial area of the irrigation district.

            Again, we must distinguish between elections for the formation of an irrigation district, and post-organization irrigation district elections.  Section 2, chapter 57, Laws of 1955 (RCW 87.03.035), supra, relating to elections for the formation of an irrigation district, provides, it will be recalled:

            "The board of county commissioners shall establish a convenient number of election precinctsin the proposed district and define the boundaries thereof, anddesignate a polling place and appoint the necessary election officersfor each precinct;. . ."  (Emphasis supplied)

            On the other hand, Laws of 1889-90, p. 674, section 5 (cf. RCW 87.03.085),supra, provides, in pertinent part:

            ". . . The board of directors must, in its order appointing the board of election, designate the house or place within the precinct where the electionmust be held."  (Emphasis supplied)

            Precincts, obviously, are to be located within the territorial area of the district or proposed district.  And, in the case of a post-organization irrigation district election, from the express language of the statutory provision pertaining to such elections, it seems clear that the polling place must be located within the precinct.  Accordingly, it follows that in the case of a post-organization irrigation district election, the polling place must be located within the territorial area of the irrigation district.

            However, such does not appear to be required in the case of an election for the formation of an irrigation district.  The statutory provision pertaining to such an election (i.e., RCW 87.03.035,supra) merely provides that a polling place be designated for each precinct.  Thus, while the precinct must be located within the proposed irrigation district, it is not required that the polling place be located within the precinct.  Therefore, in the case of an election for the formation of an irrigation district, it is our opinion that a polling place may be physically located outside of the area of the proposed district.

            We believe that each of these two conclusions last stated follow from the plain, clear and unambiguous language of the pertinent statutory provisions, above quoted.  Accordingly, no judicially  [[Orig. Op. Page 14]] pronounced rules of statutory construction need be applied in arriving at these conclusions.  The fundamental object or purpose of all judicial construction or interpretation is to ascertain, if possible, and to give effect to, the intention of the lawmakers in enacting a particular statute.  Layton v. Home Indemnity Co., 9 Wn. (2d) 25, 113 P. (2d) 538 (1941);Lynch v. Dept. Labor & Industries, 19 Wn. (2d) 802, 145 P. (2d) 265 (1944).  However, whereas the language of a statute is plain, 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), and cases cited therein.

            We trust that we have sufficiently answered each of the several questions which you have posed, and that the information herein contained will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP A. AUSTIN
Assistant Attorney General

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