AGO 1970 No. 19 - Aug 10 1970
OFFICES AND OFFICERS - COUNTY - CORONERS - ELECTIONS - ELIGIBILITY FOR OFFICE WHERE OWNER OR EMPLOYEE OF FUNERAL HOME OR MORTUARY
(1) The provisions of chapter 259, Laws of 1969, Ex. Sess.(RCW 36.24.175) do not operate so as presently to divest incumbent county coroners of their offices if they are owners or employees of a funeral home or mortuary.
(2) Those county coroners presently holding office who are subject to the provisions of § 3, chapter 259, Laws of 1969, Ex. Sess. (RCW 36.24.175) will not be eligible to commence new terms of office in January, 1971, if they are owners or employees of a funeral home or mortuary at that time.
(3) An owner or employee of a funeral home or mortuary, including an incumbent coroner, is eligible to file and run at the forthcoming 1970 election for the office of coroner in one of the counties affected by § 3, chapter 259, Laws of 1969, Ex. Sess.
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August 10, 1970
Honorable Jonathan Whetzel
State Representative, 43rd District
1511 Olin Place
Seattle, Washington 98102
Cite as: AGO 1970 No. 19
You have requested that this office answer several questions concerning county coroners of class AA, class A, first, second and third class counties. We paraphrase your questions as follows:
(1) Are those county coroners currently holding office who are subject to § 3, chapter 259, Laws of 1969, Ex. Sess., presently divested of their offices if they are owners or employees of a funeral home or mortuary?
[[Orig. Op. Page 2]]
(2) Are those county coroners presently holding office who are subject to § 3, chapter 259, Laws of 1969, Ex. Sess., eligible to commence new terms of office in January, 1971, if they are owners or employees of a funeral home or mortuary at that time?
(3) If question (2) is answered in the negative, may an owner or employee of a funeral home or mortuary, including an incumbent coroner, nevertheless file and run at the forthcoming 1970 election for the office of coroner in one of the counties affected by § 3, chapter 259, Laws of 1969, Ex. Sess.?
We answer questions (1) and (2) in the negative and question (3) in the affirmative.
The statute which has given rise to your inquiry, § 3, chapter 259, Laws of 1969, Ex. Sess., has been codified as RCW 36.24.175, and provides as follows:
"In class AA, class A, first, second and third class counties no person shall bequalified for the office of county coroner as provided for in RCW 36.16.030 who is an owner or employee of any funeral home or mortuary." (Emphasis supplied.)
Since chapter 259, Laws of 1969, Ex. Sess. did not contain a provision designating a specific effective date, it automatically became effective on August 11, 1969, by virtue of Article II, § 41 of the Washington state constitution. However, while it is clear that the statute became effective on that date, it is not clear that the disqualification provision contained therein became effective at that time. It should be noted that the language underlined in RCW 36.24.175, as quoted above, indicates that "no person [who is an owner of a funeral home or mortuary] shall be qualified for the office of county coroner as provided for in RCW 36.16.030. . ." (Emphasis supplied.) That statute, RCW 36.16.030, provides that every county except the fourth through [[Orig. Op. Page 3]] the ninth classes shall have an elected county coroner.1/
It appears that the 1969 act (RCW 36.24.175) is susceptible to two differing constructions: (1) that the act became effective on August 11, 1969, and at that point in time the new disqualification provision for coroners also became effective; or, alternatively (2) that the new disqualification provision is applicable to the next and subsequent terms of office, since RCW 36.16.030 contemplates an election for county coroner.
The last election for coroners was held in November, 1966 (see, RCW 36.16.010 and 36.16.020) for four-year terms commencing in January, 1967. Thus, at the time that the 1969 legislature enacted RCW 36.24.175 there were twenty months remaining of the then incumbent coroners' four-year terms, and eighteen months until the next election for county coroner. If the 1969 disqualification provision for coroners is construed as being effective as of August 11, 1969, then any coroner subject to the "disqualification" who then owned or was employed by a funeral home or mortuary, would have to either resign or be subject to quo warranto proceedings under chapter 7.56 RCW for the relatively short period of time remaining in his term.
There is a strong public policy favoring eligibility for public office. See,State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966). That policy is expressed in 42 Am.Jur., Public Officers, § 37 (1942), at page 908, as follows:
". . . the right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of the law. . . . Statutes imposing disqualifications are to be construed strictly, while those declaring qualifications are to receive a liberal construction. In consequence, ambiguities are to be resolved in favor of eligibility to office. . . ."
[[Orig. Op. Page 4]]
InState ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321 (1930), the Washington state supreme court expressed the same sentiments and declared at page 78:
". . . any doubt as to the eligibility of any person to hold an office must be resolved against the doubt."
The Washington state supreme court has enunciated on many occasions (e.g.,Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963)) that a cardinal principle for statutory construction is to avoid a strained or unlikely reading of the legislative purpose. Considering both that maxim of statutory construction and the public policy in favor of eligibility for office, we are constrained to conclude that the disqualification provision in § 3, chapter 259, Laws of 1969, Ex. Sess. (RCW 36.24.175), is not applicable to coroners until January 11, 1971, which is the date that coroners elected or re elected [[reelected]]in November 1970 take office. See RCW 36.16.020.
In essence, your second question is whether a coroner holding office at the present time is exempt from the disqualification provision for future terms of office. Clearly the legislature can establish criteria for the eligibility of county officers. Article II, § 5, Washington state constitution; Callahan v. Jones, 200 Wash. 241, 93 P.2d 326 (1939). Although the legislature does at times provide for a "grandfather clause", that is, an exception to increased eligibility requirements, it is not obligated to do so. See, 42 Am.Jur., Public Officers, § 32 (1942). For example, such a "grandfather" provision was specifically included in the 1961 justice of the peace act, RCW 33.34.060 (1) (b). However, in the instant statute we find no provision for a grandfather clause, and, therefore, it is clear that the present incumbents are subject to the full eligibility requirements of § 3, chapter 259, Laws of 1969, Ex. Sess., in the same manner that applies to any other person.
Your third question assumes the foregoing answer to question (2) and asks whether, nevertheless, it would be permissible for an owner or employee of a funeral home or mortuary [[Orig. Op. Page 5]] nevertheless to file and run at the forthcoming 1970 election for the office of coroner in one of the counties affected by the legislative disqualification under consideration. We believe that this question may be answered in the affirmative for the following reasons:
The statute in question states that:
". . . no person shall be qualified for the office of county coroner . . ."
The statute thus clearly speaks in terms of qualifications for the office rather than prohibitions on the activities of the incumbent; by way of contrast, for example: RCW 36.27.060 prohibits prosecuting attorneys in certain class counties from engaging in the private practice of law.
In the absence of a legislative declaration, the law is a quagmire on the question of when an individual must possess the necessary qualifications for an office. Some courts have held that an individual must possess those qualifications at the time he becomes a candidate; others have said that it is the time of election which is crucial; and still others have held only that the qualifications must exist at the time the individual actually assumes office. See, 88 A.L.R. 812, 143 A.L.R. 1026. Being aware of these conflicting authorities, our own state supreme court stated in State ex rel. McCaffrey v. Sup. Ct., 20 Wn.2d 704, 711, 149 P.2d 156 (1944), that:
". . . Should the legislature provide, by statute, the time at which eligibility to file for office must exist, it would greatly clarify the matter in future cases."
As of the present date, it does not appear to us that the legislature has clarified whether the "qualification" provided for in the statute under consideration applies to candidates for the office of coroner.
We note that the declaration of candidacy which is required by RCW 29.18.030 to be filed by all candidates for offices in this state, provides in pertinent part:
"I, , declare upon honor that I am a registered voter residing at [[Orig. Op. Page 6]] No. street, (city or town of) (county of) , state of Washington, and am legally qualified to assume office if elected; that I hereby declare myself a candidate for nomination to the office of . . ."
The key phrase in this statute is "legally qualified to assume office." This cannot literally mean that at the time the declaration of candidacy is filed the candidate, if elected, would automatically assume the office since in order to be legally qualified for the office, he must file an oath of office and a bond. See, RCW 36.16.040 and 36.16.050. Therefore, we believe that "legally qualified" means only that the candidate has the legal capacity to meet the requirements for the office. Thus, in our opinion, those things which are completely within his control; i.e., divesting himself of private business interests or something that will occur in a chronological sequence (e.g., the attainment of a qualifying age) need not have occurred as of the time the declaration of candidacy is filed.
It is true that the Washington supreme court has, on some occasions, includingState ex rel. Pennick v. Hall, 26 Wn.2d 172, 173 P.2d 153 (1946), held that eligibility for office should be determined as of the time of filing for the office rather than the time for assuming the office. However, that view of the matter was recently overruled by the supreme court inState ex rel. O'Connell v. Dubuque, supra.2/
We would, therefore, conclude that an individual who is presently an owner or employee of a funeral home or mortuary, including an incumbent coroner, is nevertheless eligible to be a candidate at the 1970 election for the office of coroner in one of the counties affected by the statute under consideration. If it were concluded that such an individual was "ineligible" we would have the anomalous situation wherein an incumbent who is an employee or owner of a funeral home or [[Orig. Op. Page 7]] mortuary while eligible to continue in office until January 11, 1971, would at the same time be ineligible to file for re election [[reelection]]to the office of coroner.
We trust that the foregoing will be of assistance to you.
Very truly yours,
EDWARD B. MACKIE
Deputy Attorney General
*** FOOTNOTES ***
1/In counties of the fourth through ninth classes, the prosecuting attorney is the ex officio coroner.
2/We should, however, make it clear that there are some qualifications which are necessary in order to be a candidate; e.g., being a registered voter. The qualifications in order to be a candidate must be possessed as of the time of the declaration of candidacy, as provided in RCW 29.18.030, is filed.