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Bob Ferguson

AGO 1955 No. 15 - Jan 24 1955
Attorney General Don Eastvold


 1. Acreage ownership qualifications of irrigation district director are possessed by reversioner, but not by vendee under real estate contract.

 2. Appointee to unexpired term of irrigation director must possess qualification required by law enacted subsequent to commencement of term of vacating director but prior to his vacation.

 3. Quo warranto action may be commenced to oustde facto incumbent.

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                                                                 January 24, 1955

Honorable Arthur L. Hawman
Prosecuting Attorney
Walla Walla County
Walla Walla, Washington                                                                                                               Cite as:  AGO 55-57 No. 15

 Dear Sir:

             Your predecessor requested our opinion concerning the qualifications of irrigation district directors as required by RCW 87.01.090 (1953 Supp.).  His questions were as follows:

             1. Does a contract purchaser of real estate possess a director's qualifications?

             2. Does a real estate owner who is subject to a life estate possess such qualifications?

             3. Must an appointee to an unexpired term of a director possess qualifications required by a law enacted subsequent to the commencement of the term of the vacating director but prior to his vacation?

             4. What procedure may be followed to remove an unqualified director who has taken office?

             Our conclusions are as follows: 1. No; 2. Yes; 3. Yes; and 4. quo warranto.

              [[Orig. Op. Page 2]]


             RCW 87.01.090 (1953 Supp.) provides, in part, as follows:

             "A person twenty-one years old, being a citizen of the United States and a resident of the state and who holds title or evidence of title to land in the district * * * shall be entitled to vote therein.  * * * all [directors] shall be electors of the district.  * * * No director shall be qualified to take office unless at the time of his election as such director he was the owner of five acres or more of land within the district subject to assessments by the irrigation district:  Provided, That thisadditional qualification for the office of director shall not apply * * *."  (Emphasis supplied)

             1. Section 3, chapter 129, Laws of 1921 (RCW 87.01.090) provided that all directors be electors, such being their sole qualification.  Our court, inState ex rel. Holt v. Hamilton, 118 Wash. 91, (1921), held that contract purchasers of real estate in the district had "evidence of title" coupled with possession and actual control of the land and thereby were entitled to be electors.  Hence such persons could also qualify as a director.  However, in 1953 the legislature expressly imposed an additional qualification for directors, viz.,ownership of five acres or more of land within and subject to assessment by the district.  Would this qualification be additional if any elector, as such, could still qualify?  We think not.  To qualify, an elector must now also be an owner, which, as defined by Black's Law Dictionary (4th Edition) at page 1259, is the one who owns the fee and has the right to dispose of it.  We know of no case in which a purchaser under a real estate contract is considered the owner of the fee, and therefore, do not believe such person meets the director's qualifications.

             2. Somebody, of course, must be the "owner" of the property.  Inasmuch as a reversioner is considered to own the fee, (See McKenna v. Seattle First National Bank, 35 Wn. (2d) 662) we believe such person meets the additional director's  [[Orig. Op. Page 3]] qualification even though his right of possession is subject to a life estate.

             3. For easy reference, we repeat that RCW 87.01.090 (1953 Supp.) provides in part, as follows:

             "* * * No director shall be qualified to take office unless at the time of his election he was the owner of five acres or more of land * * *."

             The phrase "at the time of his election" creates no distinction between elective or appointive directors, but merely designates a specific time at which the qualification must be present‑-as opposed to the times of filing the declaration of candidacy and of taking office.

             Although the vacating elective director was not required to possess the qualification due to the statute's lack of retroactive effect, the statute provides no savings device affecting the term of office.  Hence it is immaterial that the appointee is serving in a term which commenced before the qualification was imposed.

             We are of the opinion it was the legislative intent, that all directors who were elected or appointed after this section became effective must possess the acreage ownership qualification.

             4. A quo warranto action may be commenced to oust a de facto incumbent.  See chapter 7.56 RCW;State ex rel. Holt v. Hamilton, supra; andState ex rel. Brown v. Warnock, 12 Wn. (2d) 478 (1942).

 Yours very truly,
Attorney General 

Assistant Attorney General