Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1980 No. 22 -
Attorney General Slade Gorton


(1) The Island County auditor may not accept filings for the office of coroner to be placed on the 1980 primary and general election ballot solely on the basis of an assumption or anticipation that Island County will be reclassified as a third class county following completion of the 1980 federal census.

(2) In the absence of reclassification of Island County on the basis of the federal census prior to the candidates' filing period set forth in RCW 29.18.030, it would be a prerequisite to placing the office of coroner on the ballot that the county commissioners first do what is contemplated by RCW 36.13.020, et seq., in order to cause Island County to become a third, instead of a fourth, class county.

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

                                                                   June 23, 1980

Honorable David F. Thiele
Prosecuting Attorney
Island County
Coupeville, Washington 98239                                                                                                               Cite as:  AGLO 1980 No. 22

Dear Sir:

            By recent letter you advised us of your anticipation that Island County will, on the basis of the 1980 federal census, move up in classification from its current status as a fourth class county to a third class county.1/   You also  [[Orig. Op. Page 2]] directed our attention to so much of RCW 36.16.030 as lists the various county elective officers, including both a prosecuting attorney and a coroner, but then provides that,

            ". . . in counties of the fourth, fifth, sixth, seventh, eighth, and ninth classes no coroner shall be elected and the prosecuting attorney shall be ex officio coroner: . . ."

            With the foregoing in mind, and noting further that the final census figures will most likely not be confirmed and reported until after the 1980 filing period2/ and general election,3/ you then posed the following two questions:

            "1. May the county auditor accept filings for the office of coroner to be placed on the 1980 primary and general election ballot on the assumption that Island County has a population of 40,000 persons, or more, and is a third class county?

            "2. As a prerequisite to placing the office of coroner on the ballot, must the board of county commissioners by resolution declare the county to be of the third class and give their estimate of the county population pursuant to RCW 36.13.020?"

            We respond to your first question in the negative and to your second question in the affirmative as qualified in our analysis below.


            While RCW 36.13.020,et seq., afford a mechanism for reclassifying a county on the basis of population changes during periods between federal censuses (which, as you know, are conducted only once every ten years), you are entirely correct in your observation that this legislation is permissive and not mandatory. A board of county commissioners may  [[Orig. Op. Page 3]] cause a special county-wide census to be conducted for reclassification purposes during such interim periods and, if justified by the results, adopt a resolution reclassifying the county in accordance with its newly determined population. But the commissioners are not required to do so.

            Once a decennial federal census has been completed and the results thereof have been officially announced, however, that federal census automatically controls the classification of a county ". . . until such time as the population of the county shall be otherwise determined by competent authority; . . . "Faucher v. Rosenoff,65 Wash. 416, 118 Pac. 315 (1911).  Moreover, as was further held by our State Supreme Court in the later case ofState ex rel. Jordan v. Dehart, 15 Wn.2d 551, 131 P.2d 156 (1942), a federal census, once officially announced and certified, is to be taken as establishing the population (and thus the classification) of a county as of April 1 of the census year; i.e., in the instant case, April 1, 1980.

            Thus, in the instant case, it follows that Island County may become a third class county upon the occurrence of either of the following two events:

            (1) The conduct of a special county census by the county commissioners in accordance with RCW 36.13.020,et seq., supra, showing the county to have a population in excess of 40,000 persons, followed by the passage of a reclassification resolution; or

            (2) The annoucement of federal census figures indicating such a qualifying population.

            Under the first option the effective date of the change in classification would be the date of adoption by the county commissioners of the subject resolution.  Conversely, under the second procedure the effective date of the change in classification would be April, 1980‑-even though the precipitating announcement of the pertinent federal census figures does not occur until sometime toward the end of this year or, even, until early in 1981.  State ex rel. Jordan v. Dehart, supra.  But even under the latter circumstance, what seems to us to be of critical importance in terms of your questions is that Island County, in the meantime, is and will remain a fourth class county.

             [[Orig. Op. Page 4]]

            What this means, in turn, is that there is not now a vacancy in the office of county coroner. Nor will there be such a vacancy until and unless what is now only an anticipated upward reclassification of the county actually takes place.  Why? Because until that time the position of county coroner is, and will continue to be, filled, ex officio, by you as the county prosecuting attorney.  Accord, RCW 36.16.030,supra.  And until such time as there is a vacancy, there will be no basis either for the interim appointment of a new county coroner by the board of county commissioners4/ or for the election of a coroner for the remainder of the unexpired term.  See, in the latter respect,Fain v. Chapman, 89 Wn.2d 48, 569 P.2d 1135 (1977) in which the Court ruled that neither the secretary of state nor a county auditor is authorized to accept filings or conduct an election for the remainder of an unexpired term solely on the basis of an anticipated future vacancy.5/   We therefore must answer your first question in the negative.

            On the other hand, should the anticipated change in classification of Island County actually occur between now and the time for candidates to file for the 1980 election (again, the week of July, 28 ‑ August 1, 1980 as above indicated)‑-either on the basis of action by the county commissioners under RCW 36.13.020,et seq., or by reason of an earlier than expected federal census report‑-the situation would then be significantly altered.  As a consequence of that reclassification, a vacancy in the office of county coroner would then exist.  And therefore, both an interim appointment under RCW 36.16.110 and an election for  [[Orig. Op. Page 5]] the remainder of the term would be in order.  The acceptance of filings by candidates and placement of the position on the fall election ballot would thus then be proper. Accord, AGO 1977 No. 15, copy enclosed.

            One or the other of those two causes of reclassification must first occur, however, for this to happen.  Our direct answer to your second question, therefore, is in the qualified affirmative.  Except in the unlikely event of a confirmed federal census report before, at that time it would be a prerequisite to placing the office of coroner on the ballot that, before the end of the filing period, the county commissioners first do what is contemplated by RCW 36.13.020,et seq., supra, in order to cause Island County to become a third, instead of a fourth, class county.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Accord, RCW 36.13.010 which defines a third class county as one ". . . containing a population of forty thousand and less than seventy thousand . . ." and a fourth class county as one ". . . containing a population of eighteen thousand and less that forty . . ."

2/July 28 ‑ August 1, 1980 in accordance with RCW 29.18.030.

3/November 4, 1980.

4/See, RCW 36.16.110 which provides that:

            "The board of county commissioners in each county shall, at its next regular or special meeting after being appraised of any vacancy in any county, township, precinct, or road district office of the county, fill the vacancy by the appointment of some person qualified to hold such office, and the officers thus appointed shall hold office until the next general election, and until their successors are elected and qualified."

5/Rejecting, notably, arguments to the contrary made by this office in accordance with AGLO 1977 No. 34 to the effect that the various county auditors could properly accept filings for anticipated or prospective vacancies which, in the near future, were certain to come into existence.