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AGO 1968 No. 12 - March 19, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington

DISTRICTS - IRRIGATION - ELECTIONS - FREEHOLDERS - QUALIFICATIONS OF ELECTORS SIGNING PETITION TO DISSOLVE AN IRRIGATION DISTRICT UNDER CHAPTER 87.53 RCW.

(1) In order to be eligible to sign a petition to dissolve an irrigation district which has an outstanding bonded indebtedness, as provided for in RCW 87.53.030, a person must be a qualified elector under the general election laws and a freeholder of the district, as provided for in RCW 87.53.050.

(2) A person must be registered under the state general election laws in order to be a qualified elector within the meaning of RCW 87.53.050.

(3) A 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.

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

                                                                  March 19, 1968

Honorable H. Maurice Ahlquist
Director, Department of Water Resources
335 General Administration Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1968 No. 12

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on several questions pertaining to the dissolution of an irrigation district which has an outstanding bonded indebtedness.  We paraphrase your questions as follows:

            (1) Must a person, in order to be eligible to sign a petition to dissolve an irrigation district which has an outstanding bonded indebtedness, as provided for in RCW 87.53.030, be a ". . . qualified elector under the general election laws and a freeholder of the district . . ." as described in RCW 87.53.050?

            (2) If question (1) is answered in the affirmative, must a person be registered under the state general election laws in order to be a ". . . qualified elector under the general election laws . . ."?

             [[Orig. Op. Page 2]]

            (3) Does the term "freeholder of the district," as used in RCW 87.53.050, include a contract purchaser of land in the district under a forfeitable executory contract for the sale of real property?

            We answer all three questions in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Irrigation districts are quasi-public or municipal corporations empowered to carry out specific functions for the benefit of lands within a limited geographic area.  Columbia Irr. District v. Benton County, 149 Wash. 234, 270 Pac. 813 (1928).  The basic laws governing their formation and operation are found in chapter 87.03 RCW, which contains a general provision regarding the qualifications of voters in an irrigation district election.  See, RCW 87.03.045, which 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.)

            As you are aware, we have in recent years had occasion to write two formal interpretative opinions regarding the provisions of this statute.  See, AGO 61-62 No. 157, and AGO 1968 No. 3.  However, it is important to note at the outset of this opinion that we are not dealing with this statute when we concern ourselves with voter eligibility in connection with the dissolution of an irrigation district which has an outstanding bonded indebtedness.  Instead, in order to answer the questions which you have asked, we must look to the provisions of a special statute, chapter 237, Laws of 1951, now codified as chapter 87.53 RCW.11/   Specifically, there are two  [[Orig. Op. Page 3]] sections of this 19512/ act to which we must give our particular attention.  The first of these is § 3, now codified as RCW 87.53.030, which provides as follows:

            "At least one third of the electors of the district shall sign and file with the auditor a petition, reciting the substance of the uniform text of the bondholders' consent, that the consent has been filed, and praying that the district be dissolved and its affairs liquidated."  (Emphasis supplied.)

            The second statute to be noted is § 5, chapter 237, Laws of 1951 (RCW 87.53.050), which 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 methods 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."  (Emphasis supplied.)

            Question (1):

            Your first question is whether a person, in order to be an "elector" for the purpose of eligibility to sign a petition for dissolution under RCW 87.53.030,supra, must be a "qualified elector" as that term is defined by the concluding sentence of RCW 87.53.050.  In our opinion, this question must be answered in the affirmative.

             [[Orig. Op. Page 4]]

            Isolated, and repeated for ease of reference, the concluding sentence of RCW 87.53.050 reads as follows:

            ". . . No person not a qualified elector under the general election laws and a freeholder of the district shall be deemed a qualified electorunder this chapter."  (Emphasis supplied.)

            Since both this provision and RCW 87.53.030, supra, to which your question refers, were enacted as part of the same session law chapter namely, chapter 237, Laws of 1951 it follows that all references in the chapter to "electors" must be read and applied in the light of this special definition of the term.  In other words, the term "qualified elector" as defined in RCW 87.53.050, supra, is not limited to the context of that specific section but has "chapter-wide" applicability.

            In this connection, we also point out the language of § 4, chapter 237, Laws of 1951 (RCW 87.53.040), which provides:

            "The board of commissioners of the county shall at their present or next regular meeting, call an election to submit to the electors of the district the question of whether the district shall be so dissolved.  They shall direct the auditor to give notice of the election and shall appoint the election officials."

            It seems readily apparent that the "electors" who are referred to in this section, to whom the proposition for dissolution is to be submitted, are the same electors to whom § 5 (RCW 87.53.050) refers; i.e., the persons who are entitled to cast votes on the question of dissolution.  There obviously is no basis in the statute for applying the special definition of "electors" to the term as used in § 4 (RCW 87.53.040) and not applying it to the same term appearing in § 3 (RCW 87.53.030) of the same act.  In fact, to conclude that persons might qualify as "electors" for purposes of signing a petition under § 3 (RCW 87.53.030) but not for purposes of voting on the question of dissolution under § 5, would produce the anomalous situation that a certain class of electors could sign a petition initiating an irrigation dissolution procedure, but could not participate as voters in the election upon dissolution itself.  Compare,  [[Orig. Op. Page 5]] State ex rel. Hubbard v. Lindsay, 52 Wn.2d 397, 326 P.2d 47 (1958), concerning the statutes contained in chapter 52.24 RCW, relating to the merger of fire protection districts, in which the court was faced with a similar anomalous situation if it gave the terms "qualified electors" as used in RCW 52.24.090 and "qualified registered electors" as used in RCW 52.24.100 different meanings.  For this reason, it rejected a contention that the terms should be differently construed, and held that the words "qualified electors" and "qualified registered electors" were intended to mean the same thing.

            Question (2):

            We now turn to your second question, whereby you have asked whether a person must be a registered voter in order to be a "qualified elector under the general election laws" within the meaning of RCW 87.53.050, supra.

            Article VI, § 1, of the Washington state constitution, as amended by Amendment 5, prescribed the qualifications of electors as follows:

            "All persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections:  They shall be citizens of the United States; they shall have lived in the state one year, and in the county ninety days, and in the city, town, ward or precinct thirty days immediately preceding the election at which they offer to vote; they shall be able to read and speak the English language: Provided, That Indians not taxed shall never be allowed the elective franchise:  And further provided, That this amendment shall not affect the rights of franchise of any person who is now a qualified elector of this state.  The legislative authority shall enact laws defining the manner of ascertaining the qualifications of voters as to their ability to read and speak the English language, and providing for punishment of persons voting or registering in violation of the provision of this section.  There shall be no denial of the elective franchise at any election on account of sex."

             [[Orig. Op. Page 6]]

            Section 7 of the same Article then provides:

            "The legislature shall enact a registration law, and shall require a compliance with such law before any elector shall be allowed to vote;Provided, that this provision is not compulsory upon the legislature except as to cities and towns having a population of over five hundred inhabitants.  In all other cases the legislature may or may not require registration as a pre requisite [[prerequisite]]to the right to vote, and the same system of registration need not be adopted for both classes."

            Pursuant to the direction of the latter constitutional provision, the legislature has enacted statutory provisions relating to elector registration.  See, chapters 29.04 and 29.07 RCW.  Included therein are requirements that an elector, to be eligible to vote in various types of elections, must be registered.  See, RCW 29.04.010.

            RCW 87.53.050,supra, provides that to be a "qualified elector" one must be a "qualified electorwithin the general election laws."  (Emphasis supplied.) Since, as we have seen, the "general election laws" require registration, it follows that to be a qualified elector within the meaning of RCW 87.53.050, a person must be a registered voter pursuant to RCW 29.07.010, et seq.3/

             Coupling this conclusion with the answer given to question (1) that the word "elector" as used in RCW 87.53.030 means the same as the term "qualified elector" in RCW 87.53.050, it is our opinion that to be eligible to sign a petition for dissolution as provided for in RCW 87.53.030, a person must  [[Orig. Op. Page 7]] be registered pursuant to the general election laws.  (See specifically RCW 29.07.010, et seq.)

            Question (3):

            Lastly, you have asked whether the term "freeholder of the district" includes a contract purchaser of land in an irrigation district under a forfeitable executory contract for the sale of real property.

            Research has revealed only one reported decision of the Washington court passing upon the question of whether a contract purchaser of land comes within the purview of the term "freeholder."  InDaniels v. Fossas, 152 Wash. 516, 278 Pac. 412 (1929), the court considered the matter in terms of a statute4/ providing for the vacation of a county road upon petition of "ten freeholders residing in the vicinity of said road."  The court's ruling on the specific question before it (i.e., the eligibility of a holder of a forfeitable executory contract for the purchase of land to sign, as a "freeholder," such a petition) as well as its basis for this decision, appears in the following excerpt from this case:

            "'In order to be a freeholder, a person must have a property right in and title to real estate, amounting to an estate of inheritance, or for life, or for an indeterminate period.  What is required is contingent or expectant estate, nor a right of occupancy or a privilege with power to prevent alienation or incumbrance by the holder of the legal title.'  Campbell v. Moran, 71 Neb. 615, 99 N.W. 498.

            "'To be freeholders they must own an estate in fee or for life.'  Porter v. Purdy, 29 N.Y. 106, 86 Am. Dec. 283.

            "All the cases which we have examined unite in holding that one, to be a freeholder, must be the owner of either a legal or equitable title to real estate.  The owner of a mortgage on land has a claim or lien  [[Orig. Op. Page 8]] which can be enforced against the land, and so also has the holder of an executory contract of sale, but the so-called claim or lien is not title.

            "'We have consistently held in numerous cases that an executory contract of sale in this state conveys no title or interest either legal or equitable to the vendee. . . .'Ashford v. Reese, 132 Wash. 649, 233 Pac. 29.

            "Many cases have been called to our attention holding that one who has an executory contract to purchase land is a freeholder but these are all from jurisdictions which hold that one who has an executory contract to purchase land has an equitable title.  One of the signers of the petition presented to the board of county commissioners having no title, either legal or equitable, to the land on which he resided, and described in the petition, the petition did not therefore bear the requisite number of signatures, and the petition being insufficient, no jurisdiction was thereby conferred upon the board of county commissioners."

            In syllogistic form, it is to be seen that the court thus decided the question by saying:

            MAJOR PREMISE:  A person, in order to be a freeholder, must hold either legal or equitable title (in fee or for life) to real property;

            MINOR PREMISE:  UnderAshford v. Reese, 132 Wash. 649, 233 Pac. 29 (1925), the holder of an executory contract for the purchase of land, which includes a forfeiture clause, does not hold either legal or equitable title to the property which is subject to the contract;

            CONCLUSION:  Therefore, such a person is not a freeholder.

            Undoubtedly, the first, or major, premise as thus stated still constitutes a correct statement of the law.  Were this also true of the minor premise, it would follow that the  [[Orig. Op. Page 9]] Daniels case would be controlling on the issue you have raised by your third question.  However, it is our considered judgment that this minor premise is no longer valid.  Affirmatively stated, it is our opinion that the Washington court today, if called upon to decide the question, would hold that a contract purchaser does hold equitable title to the subject land and is, therefore, a freeholder.

            As noted by the court in Daniels, the foundation stone for its minor premise wasAshford v. Reese, 132 Wash. 649, 233 Pac. 29 (1925), a case involving a different question; i.e., which party to an executory real estate contract the vendor or the purchaser bears the risk of loss in the event of destruction by fire of improvements located on the subject property.  Held: The risk must be borne by the vendor because (purportedly under "numerous" prior decisions5/ ) the purchaser holds neither legal nor equitable title to the land until all of his purchase payments have been made.

            This case was decided in 1925, and Daniels v. Fossas, supra, was decided four years later, in 1929.  However, in the meantime, the court had already begun eroding away its denial, inAshford, of any equitable interest on the part of a contract purchaser in the subject property.  InPratt v. Rhodes, 142 Wash. 411, 253 Pac. 640 (1927), and Dysart v. Colonial Fire Underwriters, 142 Wash. 601, 254 Pac. 240 (1927), the court notwithstanding Ashford upheld the right of a contract purchaser to equitable relief a decree of specific performance to compel performance by the vendor.  See, also,Vandin v. McCleary Timber Co., 157 Wash. 635, 289 Pac. 1016 (1930), decided a year afterDaniels v. Fossas, supra, in which the court further recognized the existence of some sort of a property interest in the contract purchaser by concluding that an execution creditor of the vendor could not reach more than the vendor's interest in the land subject to the contract.

            These, and many of the other subsequent decisions of the court involving aspects of theAshford case will be found in well-summarized form in a comment entitled "The Vendor Purchaser Relationship in Washington" appearing in 22 Wash. L. Rev. 110, written by Mr. Stewart G. Oles.  Speaking of theVandin case, Mr. Oles wrote:

             [[Orig. Op. Page 10]]

            ". . . This is the precise situation for which the 'equitable conversion' theory was originally developed by Lord Eldon, and our court seems to apply the theory in its usual form.  That this is in opposition to the Ashford case almost goes without saying, but what renders the holding more remarkable is that the citations used as authority by the court are those early Washington cases which were overruled by the Ashford case. . . ."

            Other subsequent instances of recognition by our court of property interests in the contract purchaser which are inconsistent with a notion that he holds ". . . no title or interest either legal or equitable . . ." includeLawson v. Helmich, 20 Wn.2d 167, 146 P.2d 537 (1944), holding that a purchaser can maintain an action for trespass; andState v. Wenatchee Valley Holding Co., 169 Wash. 535, 14 P.2d 51 (1932), in which the court held that a contract purchaser is a "proper" party to a condemnation proceeding.  Speaking of this latter decision, Mr. Oles, in his law review comment above quoted, commented as follows:

            "Another blow was struck at Ashford by a decision that a purchaser is a 'proper' party to a condemnation proceeding.  This is a half-hearted overruling of the early case of Schaefer v. Gregory which found that a purchaser need not be present at a condemnation proceeding because he has no legal or equitable title to the land.  TheSchaefer case was the lone citation given by the majority in theAshford case, and a weakening of its authority indirectly undermines the validity of the later case.  The undermining appears considerable when we regard the illogic of holding that a person who has no 'title or interest, either legal or equitable' is nonetheless a proper party at a condemnation proceeding."

            Within a few years of the publication of this comment, the court itself had occasion to express its criticism of the language appearing in Ashford.  InGriffith v. Wittier, 37 Wn.2d 351, 353, 223 P.2d 1062 (1950), involving the question of  [[Orig. Op. Page 11]] whether a contract purchaser had a sufficient interest in the subject property to maintain a quiet title action, the court said:

            "Whatever we may have meant by our unfortunate choice of language inAshford v. Reese, supra, it is now abundantly clear that the purchaser under an executory contract has a valid and subsisting interest in property that is the subject matter of such a contract. . . ."

            Thereafter, theAshford case again received attention from the law review commentators.  In a casenote [[case note]]appearing in 32 Wash. L. Rev. 127, at 130, the writer6/ spoke of the case as follows:

            ". . . Washington, it may be noted, has a recorded case,Ashford v. Reese, which does deny any equitable (or legal) interest in land to such a purchaser, in effect rejecting the entire doctrine of equitable ownership.  It is a unique holding, unmatched in any other jurisdiction, and is completely out of step with the great body of Anglo-Saxon property law.  It is submitted that the Washington court today need not, and does not, fear any conflict with theAshford v. Reese doctrine. The logical implications of that doctrine have been rejected in subsequent Washington cases, and the court has given clear indications that, although never expressly overruled,Ashford v. Reese, to the extent that it denies equitable ownership, is no longer the law of Washington."

            Strong language, perhaps, but let us observe what happened next.  On March 20, 1958, less than a year following publication of this casenote [[case note]], the Washington court filed its decision in the case of Windust v. Dept. Labor & Ind., 52 Wn.2d 33, 36, 323 P.2d 241 (1958).  That case, of course, had nothing to do with real property law; instead, from a  [[Orig. Op. Page 12]] substantive standpoint, it dealt only with the right of a workman suffering a heart attack in the course of employment to compensation under our workmen's compensation laws.  However, because of prior decisions on this question, the case also involved application of the doctrine of stare decisis, to which the court addressed itself at considerable length.  In the process, speaking of the difference between the doctrine of stare decisis, as a principle of common law, and the matter of consistent uniformity in the interpretation of a statute, the court said:

            "'Statutory cases have a fixed base from which we always start.  Thus, they are unlike common-law cases wherein the later cases supersede the earlier ones to the extent of any differences between them.'"

            Then, the court went on to say:

            "The cumulative effect of many slight deviations is demonstrated by the rule ofAshford v. Reese, 132 Wash. 649, 233 Pac. 29, which, in 1925, held that a vendee under an executory contract to purchase real property, acquired no title or interest, legal or equitable, in it.  It has never been overruled, yet, in a series of subsequent cases, it has been whittled away until nothing remains32 Wash. L. Rev. 130.  Each case revamped the law a little in order to do justice on its particular facts.  It is the cumulative effect of these little deviations that produced the final result."  (Emphasis supplied.)

            We have underscored the court's citation to 32 Wash. L. Rev. 130 because, of course, that is the citation to the casenote [[case note]]of Ashford, which contained the "strong" language above quoted.  Apparently, however, the court in Windust agreed with the commentator's description of the situation.  The practical effect of this expression of the court's concurrence, as we view it, is that reliance on theAshford case in terms of its denial of "any legal or equitable title or interest" on the part of a contract purchaser can no longer be justified.  TheAshford case is dead, and with it has gone  [[Orig. Op. Page 13]] the court's basis, inDaniels v. Fossas, supra, for denying freeholder status to a contract purchaser of real property.

            In theDaniels case, the court held that a freeholder is one who holds either legal or equitable title to real property.  It denied freeholder status to a contract purchaser because, underAshford, he had neither.  In concluding in this opinion that a contract purchaser is now to be regarded as a freeholder, we are followingDaniels to the extent it gives us the applicable definition of this key term.  We are simply saying that under that definition in view of the demise of Ashford v. Reese the court would now reach a result contrary to theDaniels result if it were again called upon to consider the question.  Conversely, were we to adhere to the Daniels result, we would of necessity be "breathing life" back into theAshford case and this we have neither the power nor the inclination to do in view of these later expressions of the court noted and summarized above.

            Therefore, in our opinion, the answer to your third question is that the term "freeholder of the district," as used in RCW 85.53.050, supra, may be taken to include a contract purchaser of land in an irrigation district under a forfeitable executory contract for the sale of real property.  However, this conclusion, it should specifically be understood, is based wholly upon our conception of the scope of the term "freeholder," as above explained.

            In so concluding, we have not overlooked the early California case ofDirectors of Fallbrook Irrigation District v. Abila, 106 Cal. 355, 39 Pac. 794 (1895), cited with approval by the Washington court in State ex rel. Holt v. Hamilton, 118 Wash. 91, 202 Pac. 971 (1921), which held that a contract purchaser of land was not entitled to vote in an irrigation district election under a statute which granted the franchise only to "freeholders owning land" in the district.7/   However, a  [[Orig. Op. Page 14]] reading of the California decision reveals that it was in no wise based upon any limitation of the term "freeholders" to absolute owners of the subject land; instead, the court emphasized the fact that the term "freeholders" in the particular statute was expressly qualified in terms of "freeholders owning land."

            By way of contrast, the statute with which we are dealing in the present opinion, RCW 87.53.050,supra, does not, and never has, used the term "freeholders owning land"; rather, the statute now simply reads "freeholders of the district."  Its prior version, enacted as Laws of 1899, page 165, granted the right to vote in a dissolution election to "freeholders residing within the district."  Our present opinion is that a contract purchaser of land in an irrigation district, by virtue of the definition of "freeholder" enunciated in Daniels v. Fossas, supra, is a "freeholder" of the district.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Other special statutes deal with the dissolution of insolvent irrigation districts (see, chapter 87.56 RCW) and irrigation districts which do not have a bonded indebtedness (chapter 87.52 RCW).

2/See, also, chapter CII, Laws of 1899, which was replaced by that 1951 act but which, in so far as material, read substantially the same as does its replacement.

3/Were the phrase "within the general election laws" not in the statute, a valid argument could well be made that registration is not necessary.  As pointed out by the court inTennent v. Stacy, 48 Wn.2d 104, 291 P.2d 647 (1955), a person may be a "qualified elector" under the constitution (Article VI, § 1, Amendment 5,supra) without registration; however, in order to vote, he must register as provided "within the general election laws" which do not in any way purport to establish elector qualifications.  Therefore, it follows that in order to be a qualified elector "within the general election laws" a person must meet the qualification which is in these laws namely, registration.

4/R.R.S. § 6503 (now repealed).

5/Only one, Schaefer v. Gregory Co., 112 Wash. 408, 192 Pac. 968 (1920), was cited.

6/Mr. Robert T. Carter, a member of the law review staff, writing about In re Plasterer's Estate, 49 Wn.2d 339, 301 P.2d 539 (1956).

7/In State ex rel. Holt v. Hamilton, supra, the court held that a contract purchaser of land in an irrigation district was entitled to vote in an irrigation district election, under the general irrigation district election statute (RCW 87.03.045,supra, which was construed in AGO 61-62 No. 157, and AGO 1968 No. 3) solely by reason of the fact that the original 1889 version of that general election statute (Laws of 1889-1890, page 671), which referred to "freeholders owning land" in an irrigation district, had been amended in 1895, so as to grant voting eligibility to any person "who holds title or evidence of title to land in the district."  See, Laws of 1895, pages 432-433.

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