Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 368 - Dec 20 1954
Attorney General Don Eastvold


1. Statutes regulating the conduct of an election are mandatory when noncompliance affects result; an election is invalid when sufficient ballots not furnished and tie vote resulted.

2. Water district commissioners may be elected only at biennial general elections.

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

                                                               December 20, 1954

Honorable John C. Merkel
Prosecuting Attorney
Kitsap County
307 Dietz Building
Bremerton, Washington                                                                                                              Cite as:  AGO 53-55 No. 368

Dear Sir:

            You have asked for our opinion on questions arising from the following facts:  At the recent election for commissioner of the Silverdale Water District one precinct in the district had no ballots at the opening of the polls; ballots were procured from another precinct, but neither precinct had ballots for all voters who requested them.  Unofficial returns show a tie vote for commissioner from the ballots cast.

            Your questions are:

            1. Is the election invalid?

            2. If not, can the tie be broken by lot?

            3. If so, can a special election be called?

             [[Orig. Op. Page 2]]

            Our conclusions are:

            1. Yes; 2. No; and 3. No.


            1. The procedure in water district election was subject to the general election laws.  RCW 57.12.030.  The election laws provide that ballots equal in number to one hundred and ten per cent of the registered voters are to be delivered to the precinct election officials before the opening of the polls; RCW 29.48.030.  Qualified voters must be given ballots under RCW 29.51.050.  Both provisions employ the normally mandatory term "shall."  Both were violated.  It seems highly probable that the result of the election was thereby affected.

            The violation of a mandatory election statute will invalidate an election.  29 C.J.S. 310, Elections, § 214 b; 18 Am.Jur. 319, Elections, § 206.  If the failure to comply with the statute has affected the result of the election, the statute will be construed as mandatory.  McCrary on Elections, § 225, and Murphy v. Spokane, 64 Wash. 681, as quoted in Loop v. McCracken, 151 Wash. 19, 27; C.J.S. and Am.Jur., Loc. Cit. supra.  It follows that in this case RCW 29.51.050, at least, must be considered mandatory.  The election was therefore invalid.

            2. Our conclusion as to your first question renders the second moot.

            3. InState ex rel. Fish v. Howell, 59 Wash. 492, at 499, it is said:

            "* * * So the rule has been declared to be that elections can only be held when affirmatively authorized by law; * * *"

            See also 18 Am.Jur. 243, Elections, § 100.  It is true that RCW 57.12.020 states that the board can designate elections as special or general in the notice given thereunder, and that the section is derived from § 1, chapter 216, Laws of 1947, the chapter being entitled:

             [[Orig. Op. Page 3]]

            "AN ACT relating to theelection of commissioners of water districts; providing for the ordering of work by water commissioners; amending * * *" (Emphasis supplied)

            Any inference which might be drawn from these provisions we think is destroyed by a clear conflict which would result with two others.  RCW 57.12.020 (1953 Supp.) provides for the filling of vacancies by appointment; no special election could be held for that purpose.  RCW 57.12.040 provides that commissioners shall hold office until their successors are elected and qualified, thus covering the only other situations which might result in unfilled offices.  A special election in case of the failure either (a) of the regular election, or (b) of the person elected to qualify, would be inconsistent therewith.  In this connection seeState ex rel. Vanderveer v. Gormley, 53 Wash. 543.

            Nor does an examination of Title 29 RCW disclose any authorization for a special election in such a case.  We conclude that a special election cannot be held.

            We hope the foregoing analysis will prove to be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General