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Bob Ferguson

AGO 1954 No. 348 -
Attorney General Don Eastvold


Statutory qualifications for irrigation director are continuing during incumbency and disqualification of director subjects such office to declaration of vacancy by proper authorities unless disqualification be removed prior to such declaration.

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                                                                December 1, 1954

Honorable Roger L. Olson
Prosecuting Attorney
Franklin County
Pasco, Washington                                                                                                              Cite as:  AGO 53-55 No. 348

Dear Sir:

            Your letter of November 8, 1954, requests an opinion concerning the following questions:

            1. Whether RCW 87.01.090 (1953 Supp.) requires an irrigation district director to continue to own acreage within the district in order to remain qualified as a director?

            2. If the acreage ownership qualification is continuing, does an automatic vacancy result upon such director's disqualification by disposal of such acreage ownership during incumbency?

            3. If the acreage ownership qualification is continuing, may a director's disqualification caused by disposal of the required acreage be removed by the subsequent acquisition of the required acreage ownership so as to prevent a proper declaration of vacancy except during the period of disqualification?

            We answer questions 1 and 3 in the affirmative; and question 2 in the negative.

             [[Orig. Op. Page 2]]


            With reference to question 1, RCW 87.01.090 (1953 Supp.) provides in part that:

            "* * * 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 this additional qualification for the office of director shall not apply in any irrigation district where more than fifty percent of the total acreage of the district subject to assessment is owned in individual ownerships of less than five acres."

            Although the language of the statute, taken alone, might indicate that the acreage ownership qualification must exist only at the time of election, we do not believe this to be true.  The rule, as stated in 88 A.L.R. 828, is as follows:

            "The fact that the candidate is qualified at the time of his election is not sufficient to entitle him to hold the office, if at the time of the commencement of the term of office, or during the continuance of the term, he ceases to be qualified.  Eligibility to public office is of a continuing nature, and must subsist at the commencement of the term, and during the occupancy of the office."

            Hence, question 1 receives an affirmative answer.

            With reference to question 2, RCW 42.12.010 provides that every office shall become vacant on the happening of certain events which do not include the disqualification involved herein.  Although this statute is not directly in point here, the Washington Supreme Court in construing it in the case of State ex rel. Lysons v. Ruff, 4 Wash. 234, at 236 stated as follows:

             [[Orig. Op. Page 3]]

            "In determining the force of these statutes this well settled rule must be borne in mind, that forfeitures are abhorred by the courts, and that when it is reasonably possible so to construe the law as to avoid a forfeiture, such construction will be adopted.  * * *The object of such provision will be fully accomplished by holding that such failure to qualify does not in itself work a forfeiture of the right to the office, but simply authorizes the proper authority to declare such forfeiture and fill the office by appointment.  * * *"  (Emphasis supplied)

            Likewise, we are of the opinion that a director's disqualification by disposal of a required acreage ownership does not work an automatic forfeiture of the office.  Hence, the answer to question 2 is in the negative.

            With reference to question 3, we wish to point out that the Washington Supreme Court has not expressed itself relative to the question of a removal of a disqualification arising during incumbency and that authority from other jurisdictions holds generally that the question must depend to a great extent upon the construction of the applicable statutes and the qualification involved.  We are of the opinion that the type of disqualification involved here may be removed by reacquisition of the required acreage ownership.  Furthermore, we are of the opinion that if such disqualification be removed prior to a declaration of vacancy by the proper authorities, such authorities cannot thereafter  [[Orig. Op. Page 4]] assert the disqualification and declare a vacancy.  Hence, question 3 is answered in the affirmative.

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

Very truly yours,

Attorney General

Assistant Attorney General