ELECTIONS ‑- DISTRICTS ‑- SEWER ‑- IRRIGATION ‑- MERGER OF SEWER DISTRICT WITH IRRIGATION DISTRICT ‑- VOTER QUALIFICATIONS

ELECTIONS ‑- DISTRICTS ‑- SEWER ‑- IRRIGATION ‑- MERGER OF SEWER DISTRICT WITH IRRIGATION DISTRICT ‑- VOTER QUALIFICATIONS

Under the provisions of RCW 56.02.100 and related statutes, only persons who own land within a sewer district which proposes to merge with an irrigation district in which it is contained will be qualified to vote on the question; however, this requirement could be subject to a possible constitutional challenge.

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                                                              September 29, 1978

Honorable E. R. Whitmore, Jr.
Prosecuting Attorney
Chelan County
P.O. Box 1622
Wenatchee, Washington 98801                                                                                                               Cite as:  AGLO 1978 No. 31

Dear Sir:

            By letter previously acknowledged you requested our opinion on the following question:

            "In an election held to determine the issue of merger of a sewer district with an irrigation district, are the qualified electors the voters resident in the district or the property owners of the district?"

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            By its enactment of chapter 208, Laws of 1977, 1st Ex. Sess., the legislature authorized the merger of irrigation districts and sewer districts; specifically, the merger of a given irrigation district with a sewer district situated fully within its boundaries.  Basically, this legislation involved the amendment of two existing statutes, RCW 87.03.720  [[Orig. Op. Page 2]] and RCW 87.03.725, relating to the merger of an irrigation district with a wholly contained drainage improvement district, joint drainage improvement district or consolidated drainage improvement district.  See, §§ 1 and 2, chapter 208, supra.  In addition, however, the act contained a third section reading as follows:

            "NEW SECTION.  Sec. 3. There is added to Title 56 RCW a new section to read as follows:

            "The procedure and provisions of RCW 85.08.830 through 85.08.890, which are applicable to drainage improvement districts, joint drainage improvement districts, or consolidated drainage improvement districts which desire to merge into an irrigation district, shall also apply to sewer districts organized, or reorganized, under this title which desire to merge into irrigation districts.

            "The authority granted by this section shall be cumulative and in addition to any other power or authority granted by law to any sewer district."

            This new section has since been codified as RCW 56.02.100.  It is further instructive, we think, to compare it with the original text of § 3 of the enactment‑-as introduced in the form of House Bill No. 627.  That corresponding section of the original bill read as follows:

            "NEW SECTION.  Sec. 3. There is added to Title 56 RCW a new section to read as follows:

            "Any sewer district organized, or reorganized, inder this title may merge into an irrigation district in the same manner (insofar as the same is applicable) as is provided in RCW 57.40.100 through 57.40.150, for the merger of sewer districts into water districts.

            "The authority granted by this section shall be cumulative and in addition to any other power or authority granted by law to any sewer district."

            The modified version of the section which was ultimately enacted came into the measure by way of a Senate committee amendment to the bill on June 1, 1977.  Although neither the Senate  [[Orig. Op. Page 3]] nor House journals contained any explanatory debate, its purpose seems fairly apparent.  Whereas the original version of the bill would have utilized those procedures which govern the merger of a sewer district into a water district to accomplish the merger of a sewer district into irrigation districts, the amendment changed that and substituted, instead, the procedures which are to be followed in connection with the merger of an irrigation district with a wholly contained drainage improvement district, joint drainage improvement district or consolidated drainage improvement district.  Moreover, this Senate enacted change in procedures would appear to be critical insofar as your immediate question is concerned.

            Under RCW 57.40.100 through 57.40.150, all of the qualified voters residing within the merging sewer district are entitled to vote.  RCW 57.40.130.  And this means, quite simply, all registered voters residing within such district‑-there being nothing in the applicable statutes to the contrary.  On the other hand, in the case of a merger between an irrigation district and a wholly contained drainage improvement district, joint drainage improvement district or consolidated drainage improvement district, it has apparently been accepted practice, over the years, that only persons who own land within the merging improvement district (or districts) may vote.  The statutory basis for this practice is to be found in RCW 85.08.870 and RCW 85.08.290, the first of which specifically governs the election aspect of a merger and reads as follows:

            "The notice shall be given and the election conducted in the manner, so far as is applicable, as for the election of members of the board of supervisors of a drainage improvement district.  The notice shall advise of the election so ordered and the date, time and place thereof, state the filing of the petition, the names of those signing the petition and prayer thereof, and shall require the voters to cast ballots with the words 'Merger, Yes' or 'Merger, No.'"

            The second statute, RCW 85.08.290, governs the election of members of the board of supervisors of a drainage improvement district and states, in relevant part that:

            ". . .  All electors of the stateowning land in the district shall be entitled to vote at any election held within the district, and each elector owning more than ten acres of land within the district shall be entitled to one additional vote for each ten acres or major fraction thereof: . . ."  (Emphasis supplied)

             [[Orig. Op. Page 4]]   Based upon the foregoing there would most certainly appear to us to be little doubt as to the "intent" of the legislature; namely, that only persons who own land within a merging sewer district will be qualified to vote on the question of whether that district should be absorbed into the irrigation district within which it is situated.  Had the legislature intended otherwise it presumably would have rejected the Senate amendment and passed the law in its original bill form.  And this, then, must be our direct answer to your question viewed purely from the standpoint of statutory construction or interpretation; i.e., that in an election held to determine the issue of merger of a sewer district with an irrigation district the qualified electors are (in your word) ". . . the property owners of the district."

            Having so advised you, however, we would be remiss not to add a caveat.  As you know, it has been the consistent policy of this office, over the years, to presume the constitutionality of all duly enacted state legislation.  Perhaps the most succinct explanation of this policy appears in AGO 1945-46 [[to John T. Welsh, Prosecuting Attorney, Pacific County, on July 17, 1945]], p. 269 as follows:

            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            Accordingly, we must refrain in this opinion from in any way purporting to declare the statutes here involved to be unconstitutional since that simply is not our prerogative.  Yet at the same time we should not by our silence mislead you, or any other reader of this opinion, into thinking that there is no constitutional problem with the result we are constrained to reach for indeed there well may be.  We have reference, of course, to the recent rulings of the United States Supreme Court inKramer v. Union Free School Dist., 395 U.S. 621, 23 L.Ed. 2d 583, 89 S.Ct. 1886 (1969) and Cipriano v. Houma, 395 U.S. 701, 23 L.Ed. 2d 647, 89 S.Ct. 1897 (1969) to the effect that property ownership is an unconstitutional qualification for voting in the absence of  [[Orig. Op. Page 5]] some "compelling state interest" to the contrary.  See also,Sorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972).  We would commend those cases to your attention in formulating your own thoughts on the question which you have here presented.

            It is hoped that you will find the foregoing to be of some assistance.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

CAROL A. SMITH
Assistant Attorney General