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Bob Ferguson

AGO 1956 No. 185 -
Attorney General Don Eastvold


A vacancy created in the legislature by the death of a senator must be filled by appointment if one or part of one regular session of the legislature remains.  If there is only an eventuality of a special session then the appointment is to be made upon calling of the special session.  The salary of the appointee commences when he has qualified and taken his oath of office.

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                                                                 January 13, 1956

Honorable Charles W. Cone
Prosecuting Attorney
Chelan County
County Court House
Wenatchee, Washington                                                                                                              Cite as:  AGO 55-57 No. 185

Dear Sir:

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

            (1) Is a board of county commissioners required to make an appointment to fill a vacancy created by death in the office of state senator where both of the regular sessions of the legislature held during the term for which the deceased senator was elected have elapsed?

            (2) If such an appointment must be made, when will the salary of the appointed senator commence?

            Our answer to your first question is "yes" providing there is a special session of the legislature called by the governor.  Our answer to your second question is the salary will commence when the appointee has qualified and has taken his oath of office.

             [[Orig. Op. Page 2]]


            The statutes which have a direct bearing on your questions are RCW 44.04.030 and RCW 43.03.010.  RCW 44.04.030 reads in part:

            "Such vacancies as may occur in either house of the legislatureshall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs, and the person so appointed shall hold office until his successor is elected at the next general election, and has qualified: * * *" (Emphasis supplied.)

            RCW 43.03.010 provides in part:

            "* * * That anyone appointed to fill any vacancy that may occur in either the senate or houseshall not receive any compensation for salary as herein provided until such appointee shall have qualified for office and shall have taken his oath of office at the next convening regular or special session of the legislature."  (Emphasis supplied.)

            The statute states vacancies shall be filled by appointment.  The word "shall" is generally construed as being mandatory.  State ex rel. McDonald v. Stevenson, 176 Wash. 355, 29 P. (2d) 400; State v. Mavrikas, 148 Wash. 651, 269 Pac. 805.  This would indicate the legislature intended that the commissioners appoint someone to fill the vacancy.  Thus, the commissioners would be required to appoint a new senator if there were still one or part of one regular session of the legislature to run during the senatorial term under consideration.  On the other hand, in the question presented by you there is only a possibility that aspecial session of the legislature might be called prior to the general election.

            It is obvious that unless a special session is called by the governor the appointee would not be entitled to serve upon any interim committee of the senate, and, moreover, he would not be able to receive any salary because he would not have "taken his oath of office at the next convening regular or special session of the legislature" as provided by RCW 43.03.010.  Under these circumstances, the appointee would be a senator in name only and could qualify for the office  [[Orig. Op. Page 3]] only in the uncertain eventuality that the governor calls a special session of the legislature.

            In this situation, we do not think the legislature intended that the provision for appointing legislators to fill vacancies caused by death to be mandatory.  It is well established in law that courts will not require the doing of a useless act.  We believe, therefore, that RCW 44.04.030 must be construed as directory where the only possibility for the appointee being able to serve necessarily depends upon the eventuality that a special session may be called.

            If a special session were called the county board of commissioners should then make the appointment as required by statute.  In this case the salary would start from the time the appointee had qualified and taken the oath of office.

            Of course, should the county commissioners desire to make an appointment even though it may become practically effective only in the event a special session is called, they may properly do so.  36 OAG 150 [[to Ernest N. Hutchinson, Secretary of State on July 15, 1936]]. sion is called, they may properly do so.  36 OAG 150.

            We hope the foregoing will be of assistance.

Very truly yours,

Attorney General

Assistant Attorney General