Wyoming Advisory Opinions August 11, 1978: AGO 1978-030 (August 11, 1978)

AGO 1978-030.

W.S. 22-23-103 directs that a first class city shall be divided into wards which "shall be compact in form and as nearly equal in population as possible."

W.S. 22-23-302 provides:

Not more than sixty (60) days nor less than forty-five (45) days preceding the municipal primary election, each candidate for a municipal office shall pay a filing fee of ten dollars ($10.00) and sign and file with the city clerk a petition in substantially the following form:

State of Wyoming ss. County of the undersigned, certify that I was born on , 19..,and that I have been a resident of the State of Wyoming since , and that I am a registered voter of Election District No. ..., Precinct No. ..., in Ward No. ..., in the City of, and the State of Wyoming, do hereby petition and request that my name be printed upon the Official Municipal Primary Ballot at the nextprimary election as a candidate for the office of I hereby declare that if nominated and elected I willqualify for the office. Dated-

(Signature of Candidate) (Residence Address)

W.S. 22-23-602 sets forth the procedure for establishing staggered terms for councilmen, referring to them as "elected from each ward."

W.S. 15-1-107 provides that a vacancy exists in the office of councilman in event of "death, resignation, removal from city (or town) or ward, conviction of a felony, or any other reason fixed by law."

Since the statutes are not clear and unambiguous as to the necessity of a councilman being a resident of the ward which elected him, the legislative intent must be ascertained in light of the purposes and objects to be accomplished by the statutes (County of Natrona v. Casper Air Service, 536 P.2d 142 (Wyo. 1974); Lohman v. Jefferson Standard Life Insurance Co., 525 P.2d 1 (Wyo. 1974). The statutes shall be read in pari materja. Woolley v. State Highway Commission, 387 P.2d 667 (Wyo. 1963).

Although the legislature did not specify that one eligible to hold the office of councilman must be a resident of the ward to be represented (as was done for school districts and community colleges in W.S 22-22-201), nonetheless, the previously referred to sections of the Wyoming Statutes, when read in pari materia, reflect an intention of the legislature to require a councilman to be a resident of the ward which he represents.

If a councilman need not be a resident of the ward which he represents, the first question here posed would obviously be answered in the affirmative. Since a councilman must be such a resident when representing the ward, the question as to the time of residency prior to taking office (as posed in the first question) becomes pertinent.

The only statutory help is the language chosen by the legislature to be included in the petition for nomination. (W.S. 22-23-302). Without more, the requirement therein for listing of the ward in which the applicant has his present residence would reflect an intention that he reside at the time of application in the ward for which he seeks election. However, the form contains the words "if nominated and elected I will qualify for the office." The future tense reflects a legislative intention for the qualification to be met before or at the time of taking office. This is persuasive and controls. While "qualify" may not be exactly synonymous with "eligible," it does mean "performance of the acts which the person chosen is required to perform before he can enter into office." Holley v. Adams, (Fla.) 238 So.2d 402, at 405.

Although the certification of intent to qualify is all that is now required in completing the petition for nomination, it is helpful to have an indicia of implementation of such intent, which exists in the situation which prompts the posed question (petitioner completing construction on new residence in the ward). However, such is not now legally required.

Accordingly, if a person will be a resident of the ward at the time he takes office (or will be of sufficient age, or will attain any other qualifications at such time), he may file for the office of city councilman for that ward, although not a resident thereof at the time of filing (or not of sufficient age, or lacking other qualifications at such time).

It follows, with reference to tM second posed question, that such candidate need not list his lack of residence, or lack of other qualifications, on the petition. It may be politic for the candidate to immediately move to a rented room or other place of abode in the ward so as to complete the second legal requirement for residence (in addition to the requirement to intend to there reside), or for him to otherwise make known his intended residence in the ward, but such is not a legal requirement.