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AGO 1977 No. 21 - November 09, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- DIKING ‑- ELECTIONS ‑- ELIGIBILITY OF CONTRACT PURCHASERS TO VOTE IN DIKING DISTRICT ELECTIONS

A person holding a contract for the purchase of land situated within a diking district established pursuant to Chapter 85.05 RCW is thereby to be deemed an owner of land within such district for the purpose of determining his eligibility to vote in a diking district election in accordance with RCW 85.05.050.

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                                                                November 9, 1977

Honorable George F. Hanigan
Prosecuting Attorney
Wahkiakum County
Cathlamet, Washington 98612

                                                                                                                 Cite as:  AGO 1977 No. 21

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Is a person holding a contract for the purchase of land situated within a diking district established pursuant to Chapter 85.05 RCW thereby to be deemed an owner of land within such district for the purpose of determining his eligibility to vote in a diking district election in accordance with RCW 85.05.050?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            In posing the foregoing question you have made reference to a previous opinion of this office which was written to your predecessor as Wahkiakum County prosecuting attorney on March 11, 1937 [[to Mitchell Doumit]].  There, relying upon the  [[Orig. Op. Page 2]] decision of the Washington Supreme Court inAshford v. Reese, 132 Wash. 649, 233 Pac. 29 (1925), we advised that a contract purchaser of land within a diking district was not qualified to vote under the provisions of § 42.40 Rem. Rev. Stat., which required that to be a voter in a diking district election a person ". . . 'shall own land in the district.'"  You have then gone on to note, however, that after a long period of gradual erosion1/ the infamousAshford case has now finally been expressly overruled by the court inCascade Security Bank v. Butler, et al., 88 Wn.2d 777,    P.2d     (July 14, 1977).  The obvious essence of your question, therefore, is whether our prior (1937) opinion should also now go by the boards.

            The pertinent language of § 42.40, Rem. Rev. Stat., clearly remains unchanged.  It is now codified in RCW 85.05.050 which reads, in material part, as follows:

            "Said election shall be held on the day designated in such notice, and shall be conducted in accordance with the general election laws of the state, and no person shall be entitled to vote at such election or at the elections of commissioners hereinafter provided for unless he shall be a qualified elector of the county in which such district is located, and shall own land in the district. . . ."

            The issue presented is thus whether, with the overruling of Ashford v. Reese, supra, a contract purchaser of land within a diking district is now also to be deemed an owner of such land for the purposes of the statute ‑ and our answer is in the affirmative.  Notably, however, we base that answer not only on Cascade Security Bank v. Butler, supra, but, as well, on our own opinion of nearly ten years ago thatAshford v. Reese was even then, for all practical purposes, an historical oddity only.

            We have reference, specifically, to AGO 1968 No. 12 [[to H. Maurice Ahlquist, Director, Department of Water Resources, on March 19, 1968]],supra, in which we concluded that a  [[Orig. Op. Page 3]] contract purchaser of land in an irrigation district (under a forfeitable executory contract for the sale of real property) is a "freeholder of the district" as that term is used in RCW 87.53.050 ‑ also, notably, an election qualification law which deals with the conduct of elections for the dissolution of irrigation districts and provides as follows:

            "The election shall be called upon the same notice and conducted in like manner as other elections of the district:  PROVIDED, That when the bondholder's consent to dissolution provides for an adjustment of the bonded debt and/or the terms and method of its payment the notice of election shall recite the substance thereof.

            "The ballot shall contain the words 'For dissolution, Yes' and 'For dissolution, No.'  No person not a qualified elector under the general election laws and a freeholder of the district shall be deemed a qualified elector under this chapter."

            As you will further see upon reading this 1968 opinion we there viewed the terms "freeholder" and "landowner" as being basically synonymous.  Therefore it follows that if a contract purchaser of land is to be deemed to be a freeholder for the purposes of RCW 87.53.050 he should likewise be characterized as an "owner" of land for the similar purposes of RCW 85.05.050,supra.  And thus, even without the aid of Cascade Security Bank v. Butler, supra, it would now be our opinion that such a person is (if otherwise qualified) eligible to vote in a diking district election pursuant thereto ‑ although, obviously, this recent ruling by our state supreme court further solidifies our views with respect to that question.

            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

                                                         ***   FOOTNOTES   ***

1/See AGO 1968 No. 12 [[to H. Maurice Ahlquist, Director, Department of Water Resources, on March 19, 1968]], copy enclosed, which is further noted below.

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