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AGO 1966 No. 75 - March 01, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- FLOOD CONTROL ‑- ELECTIONS ‑- QUALIFICATIONS OF ELECTORS ‑- PERSONS HOLDING TITLE OR EVIDENCE OF TITLE ‑- COMMUNITY PROPERTY ‑- CONTRACTOR VENDOR ‑- PURCHASER.

(1) A husband and wife, holding title or evidence of title to more than ten acres of benefited lands within a flood control district as community property, are entitled to one additional vote for each additional ten acres or major fraction thereof held.

(2) A vendor is entitled to vote in a district election where benefited property in a flood control district is the subject of an ordinary real estate contract.

(3) A purchaser is entitled to vote in a district election where benefited property in a flood control district is the subject of an ordinary real estate contract.

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

                                                                   March 1, 1966

Honorable H. Maurice Ahlquist
Director, Department of Conservation
335 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 75

Dear Sir:

            By letter previously acknowledged, you requested the advice of this office on the following questions:

            1. Are a husband and a wife, holding title or evidence of title to more than ten acres of benefited lands within a flood control district as community property, individually entitled to one additional vote for each additional ten acres or major fraction thereof held?

            2. Where benefited property in a flood control district is the subject of an ordinary real estate contract, is the vendor entitled to vote in a district election?

            3. Where benefited property in a flood control district is the subject of an ordinary real estate contract, is the purchaser entitled to vote in a district election?

             [[Orig. Op. Page 2]]

            All three questions are answered in the affirmative.

                                                                     ANALYSIS

            It is noted, at the outset, that your inquiry relates to elections conducted by flood control districts organized under chapter 72, Laws of 1937, (now codified in chapter 86.09 RCW) for purposes other than to establish such a district.

            The answers to your inquiries center around RCW 86.09.364, which provides:

            "Any person of the age of twenty-one years, being a citizen of the United States who holds title to land or evidence of title to land determined to receive benefits within the boundaries of any district, shall be entitled to vote at any election held therein.  Additional qualifications for voting, required by the general election laws of the state shall not apply:  PROVIDED, That where the title or evidence of title to community land is held by the husband or the wife, both members of such community shall be entitled to vote:  PROVIDED FURTHER, That the elector qualification based on holding title or evidence of title to land determined to receive benefits shall not apply for the election to establish the district:  PROVIDED FURTHER, That each elector holding title or evidence of title to more than ten acres of benefited land within the district shall be entitled to one additional vote for each ten acres or major fraction thereof:  AND PROVIDED FURTHER, That at any election held under the provisions of this chapter, one officer or agent of any corporation owning land in the district, duly authorized thereto in writing may cast a vote on behalf of said corporation; when so voting he shall file with the election officers such written instrument of his authority, and such officer or agent shall be deemed an elector within the meaning of this chapter.  An elector resident within the district shall vote in the precinct in which he resides; and an elector not residing in the district shall vote in the precinct which includes his land, or the great[er] area thereof."

             [[Orig. Op. Page 3]]

            Question 1:

            Your first question relates to whether a husband and wife, owning benefited land within a flood control district as community property, are each entitled to additional votes under that portion of RCW 86.09.364 which states:

            ". . . Thateach elector holding title or evidence of title to more than ten acres of benefited land within the district shall be entitled to one additional vote for each ten acres or major fraction thereof: . . ."  (Emphasis supplied.)

            The answer thereto depends on whether both the husband and the wife are "electors" within the meaning of said section.  From that portion of RCW 86.09.364, dealing directly with property owned in a community status, which reads:

            ". . . That where the title or evidence of title to community land is held by the husband or the wife, both members of such community shall be entitled to vote: . . ."  (Emphasis supplied.)

            it is clear that both the husband and the wife are "electors."

            You are therefore advised that a husband and wife holding community property, who are otherwise eligible, are each entitled to additional votes as provided in that portion of RCW 86.09.364 first quoted above in answering question 1.

            Question 2:

            You then ask whether a vendor in an ordinary real estate contract relating to "benefited" lands within a flood control district is entitled to vote.

            The pertinent portion of RCW 86.09.364 provides:

            "Any person of the age of twenty-one years, being a citizen of the United Stateswho holds title to land or evidence of title to land determined to receive benefits within the boundaries of any district, shall be entitled to vote at any election held therein. . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            Does a contract vendor hold "title to land or evidence of title to land" within the meaning thereof?

            Until a contract vendor has actually conveyed the land in question to the purchaser upon the performance of the contract by the purchaser, it is well established in this state that a contract vendor retains legal title.  See, Ashford v. Reese, 132 Wash. 649, 233 Pac. 29 (1925).  Such legal title, in our opinion, clearly establishes a contract vendor as a person holding "title" within the meaning of RCW 86.09.364, and thereby entitles him to vote in flood control district elections, assuming all other voting requirements are satisfied.1/

             Question 3:

            Finally, you inquire as to whether a purchaser in an ordinary real estate contract relating to "benefited" lands within a flood control district, is authorized to vote in flood control district elections.

            As in question 2, the answer depends on the interpretation given to that portion of RCW 86.09.364 which reads

            "Any person . . . who holds title to land or evidence of title to land . . ."  (Emphasis supplied.)

            While the meaning of the same as contained in this specific statute has never been considered by our supreme court, the same language, as found in a statute relating to irrigation district districts, was interpreted inState ex rel. Holt v. Hamilton, 118 Wash. 91, 202 Pac. 971 (1921).  In holding that a contract purchaser was entitled to vote in irrigation district elections, the supreme court wrote at page 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,  [[Orig. Op. Page 5]] 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.)

            This case is, in our opinion, controlling of the question you raise, and you are therefore advised that a purchaser in an ordinary contract for the sale of real property is entitled to vote in flood control district elections assuming the other statutory requirements to qualify as an elector are satisfied.2/

             We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This office reached the same conclusion, and for the same reasons, in AGO 61-62 No. 157 [[to H. Maurice Ahlquist, State Representative on August 24, 1962]], when RCW 87.03.045, which contains similar statutory language, was construed.

2/We again reached the same conclusion for the same reasons in AGO 61-62 No. 157, supra.  See, footnote 1.

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