COUNTIES ‑- ELECTIONS ‑- FEDERAL CENSUS ‑- RECLASSIFICATION OF COUNTIES ‑- INCREASED COMPENSATION OF OFFICIALS

COUNTIES ‑- ELECTIONS ‑- FEDERAL CENSUS ‑- RECLASSIFICATION OF COUNTIES ‑- INCREASED COMPENSATION OF OFFICIALS

1. The auditors should require candidates to pay a filing fee based upon annual salary for the class of county as shown by the unofficial census bulletins.

2. The salaries of county officials elected in 1950 will not be affected by the fact that the filing fee was paid upon a different classification than was finally determined to be the correct classification by the Bureau of Census.

3. The county auditor should call for the election of coroner and accept filing fees therefor in such cases as the preliminary bulletins of the Bureau of Census show that a particular county has been advanced from the 4th class or a lower class to the third class or a higher class.

4. The county auditor of a county which the preliminary bulletin of the Bureau of Census shows has been advanced from a 9th class county to an 8th class or higher class county should call for an election and accept filing fees for auditor and assessor.

                                                                 - - - - - - - - - - - - -

                                                                   June 15, 1950

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 285

Dear Sir:

            We have your letter of June 7, 1950, in which you ask the following questions:

            1.         Assuming that the unofficial census figures are released prior to July 1, 1950, should the respective county auditors require candidates to pay a filing fee based upon annual salary resulting from the increase or decrease of classification?

             [[Orig. Op. Page 2]]

            2.         Would the annual salary of a newly elected county official in any way be affected by the fact that the filing fee was paid upon the classification of the respective county according to the census of 1940 regardless of the unofficial census figures and said county is afterwards found to have advanced or decreased in classification upon the release of the official census figures?

            3.         Where the preliminary bulletin of the Bureau of Census shows that a county which was of the fourth class or a lower class according to the census of 1940 has advanced to the third class or higher class, should the county auditor call for an election of coroner and accept filings therefor?

            4.         Where the preliminary bulletin of the Bureau of Census shows a ninth class county has been advanced to eighth class or higher class, should the county auditor of such county call for an election and accept filing fees for the offices of auditor and assessor?

            The conclusions reached may be summarized as follows:

            1. The auditors should require candidates to pay a filing fee based upon annual salary for the class of county as shown by the preliminary census bulletins.

            2. The salaries of county officials elected in 1950 will not be affected by the fact that the filing fee was paid upon a different classification than was finally determined to be the correct classification by the Bureau of Census.

            3. The county auditor should call for the election of coroner and accept filing fees therefor in such cases as the preliminary bulletins of the Bureau of Census show that a particular county has been advanced from the fourth class or a lower class to the third class or a higher class.

            4. The county auditor of a county which the preliminary bulletin of the Bureau of Census shows has been advanced from a ninth class county to an eighth class or higher class county should call for an election and accept filing fees for auditor and assessor.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            Your request calls our attention to the fact that the 1950 federal census will probably result in a change of classification of many counties.  This change of classification will automatically result in an increase or decrease in compensation of newly elected officials and might also result in the creation of the position of coroner in counties which might be advanced to third class, or in the creation of other offices of any county which is raised from ninth class to a higher class or a reduction in offices if a county is lowered from the eighth to the ninth class.

            You also call our attention to the fact that the filing period for candidates subject to the September primaries is set for July 1 to July 20.

            The case of State ex rel. Jordan, et al. v. Dehart 15 Wn. (2d) 551, 131 P. (2d) 156, involved the salaries to be paid Thomas G. Jordan and E. F. Millard, county commissioners of Cowlitz County.  Jordan was elected in 1938 for a four-year term.  Millard was elected in 1940.  The population of Cowlitz County as determined by the federal census was 31,808 in 1930 and 40,155 in 1940, which made the county a county of the fourth class until the census of 1940, and a third class county thereafter.  The salaries of county commissioners of third class counties was greater than that of fourth class counties.  Mr. Jordan's appeal was dismissed under the well-recognized rule that the salaries of officials cannot be increased during their term of office.

            The case of Mr. E. F. Millard, who was not elected until 1940, fell under different principles.  We note from the agreed statement of facts in the Supreme Court record that the Bureau of Census first issued a bulletin to the effect that Cowlitz County would have slightly less than 40,000 at the census of 1940, and that later a letter is shown in the statement under date of September 9, 1940, that the preliminary estimate for Cowlitz County was 40,059.  We must therefore assume that Mr. Millard at the time of filing his declaration of candidacy was required to pay a fee based upon the amount of salary paid to a commissioner in a county of the fourth class.  See section 5182 Rem. Rev. Stat.  The Bureau of Census issued a formal certificate on April 23, 1941, fixing the population of Cowlitz County at 40,155.  The sole question for determination by the court was the time that Cowlitz County advanced from fourth class to third class; was it April 1, 1940, the date on which the enumeration began, or April 23, 1941, the date of the formal certificate of the Bureau of Census.  The federal laws relating to the census may be found at U.S.C.A., Title III.  Under federal law no definite and final time is fixed when the Director of the Census shall issue his official results.  We quote from the Jordan case, supra.

             [[Orig. Op. Page 4]]

            "Section 206 states:

            "'The census of the population . . . shall be taken as of the 1st day of April, and it shall be the duty of each enumerator to commence the enumeration of his district on the day following . . .'

            "By § 213 the director of a census is authorized to have printed in such editions as he may deem necessary, preliminary and other census bulletins, and final reports of the results of the several investigations authorized by the statute and to publish and distribute the bulletins and reports.  By § 218 the director is given authority at his discretion, upon the written request of the governor of any state or territory or of a court of record to to furnish certified copies of so much of the population as may be requested.  It will be noted that the statutes providing for the taking of the census do not provide for publishing, or rather do not point out the manner of publishing, the census or giving it to the public.

            "* * *

            "The issuance of the certificate was authorized by the Federal law and gave definite information concerning the population of Cowlitz County as of April 1, 1940.

            "The question then is whether the population as ascertained in the certificate was actually made and determined as of April 1, 1940.  In other words, did Cowlitz County change from a fourth to a third-class county April 1, 1940, or upon the date when the certificate was officially issued?

            "It is obvious that commissioner Millard cannot draw a salary of two hundred dollars per month unless Cowlitz County was of the third class at the time he was elected.

             [[Orig. Op. Page 5]]

            "* * *

            "In this case, the office holder was allowed to prove after his election and the time he took office that the county was entitled to a classification higher than it had at the time he was elected.

            "* * *

            "We conclude that the question of population is a factual one to be determined by the Federal census as of April 1, 1940, the date mentioned in the Federal act.

            "Based upon the record before us and in accordance with the cited cases, we hold that Cowlitz county was of the third class at the time Mr. Millard was elected in 1940 and that he was entitled to receive the salary provided by law for county commissioners of the third class."

            It would therefore appear that county officials who are elected at the election of 1950 are entitled to salaries according to the scale as contained in section 1, chapter 200, Laws of 1949 (4200-5a Rem. Supp. 1949), as based upon the classification of counties as fixed in section 1, chapter 26, Laws of 1941 (4220-1a Rem. Supp. 1941), as such population of the respective counties is determined by the Bureau of Census as of April 1, 1950, irrespective of the exact date that such official determination may be made.  That is, as actually happened in the case of Mr. E. F. Millard, an officer is entitled to the increase in compensation due to the change of the county in class, even though such change is not known to the public until after such officer assumes the duties of his office.

            You ask as to what effect shall be given to such preliminary estimates of population as may be issued by the Bureau of Census before the opening of filings for office in 1950.  In Holcomb et al. v. Spikes 232 S.W. 891 (Tex. Civ. App.), it was held that a bulletin of the Bureau of Census which showed the census was subject to correction did not prevent such bulletin from being complete nor prevent official notice being taken of the population as therein stated.  See also Board of Commissioners of Cole County v. Walthew 296 Pac. 481, 147 Okla. 296; Herndon v. Excise Board of Garfield County 295 Pac. 223, 147 Okla. 126.

             [[Orig. Op. Page 6]]

            The case of Garrett et al. v. Anderson 144 S.W. (2d) 971, would appear decisive on the point under consideration.  We quote from the opinion:

            "The appeal turns on the question of whether the population of Bexar County, as ascertained by the sixteenth decennial federal census, taken in 1940, had been officially determined and promulgated so as to give it the status of the 'last preceding federal census' within the contemplation of the statutes prescribing the salaries of official court reporters in the several classes of counties in this state.

            "* * *

            "The federal statutes provide no formula or procedure for the promulgation of reports of the population ascertained by the taking of any census.  The nearest approach to such procedure is found in 13 U.S.C.A. §§ 4 and 213, in which it is provided that, 'The Director of the Census is authorized and directed to have printed, published, and distributed, from time to time, bulletins and reports of the preliminary and other results of the various investigations authorized by law; * * *.'  (Section 4.)  'The Director of the Census is hereby authorized * * * to have printed by the Public Printer, in such editions as the director may deem necessary, preliminary and other census bulletins, * * * and to publish and distribute said bulletins and reports.'  (Section 213.)

            'The record in this case does not embrace any report or statement purporting to emanate directly from the 'Director of the Census,' but the Hon. Ben S. Morris, duly accredited supervisor of the census for the Twentieth District, consisting of Bexar County, issued and delivered to the County Judge the following preliminary report of the census for said County.

             [[Orig. Op. Page 7]]

            "'Form P 114 (1940 and 1930)
            'Department of Commerce
            'Bureau of the Census
            'Sixteenth Census of the United States
            'Office of Supervisor of Census
            '821 Frost Bank Building
            'San Antonio, Texas,
            'June 25, 1940
            'Released for Immediate Use
            'Sixteenth Census‑-Preliminary Announcement of Population (Subject to Correction)

            'The population of County of Bexar, State of Texas, as shown by a preliminary count of the returns of the Sixteenth Census, taken as of April 1, 1940, is 337,557, as compared with 292,533 on April 1, 1930.  The 1940 figures are preliminary and subject to correction.

            'Ben S. Morris
            'Supervisor of Census.'

            "* * *

            "We are of the opinion, therefore, and here hold as a matter of law, under the record made here, that the report of Supervisor Morris amounted to an official announcement, in behalf of the federal government, that the population of Bexar County, according to the last preceding federal census, is 337,557, subject to such necessarily slight and here immaterial corrections as may be made in the final figures promulgated by the appropriate authority in the National Government.  It follows from this conclusion that the County officials of Bexar County were authorized to take official notice of that report as a declaration of the 'last preceding * * * Federal Census' as contemplated  [[Orig. Op. Page 8]] in Article 2326e, and, accordingly, to discontinue payment of the salaries prescribed in that statute for court reporters in counties having a population of not less than 290,000 and not more than 325,000.  * * *"

            See also Elliott v. State of Oklahoma 150 Okla. 257, 1 P. (2d) 370; Ervin v. State of Texas 44 S.W. (2d) 380; Underwood v. Hickman 162 Tenn. 689, 39 S.W. (2d) 1034.

            Section 1, chapter 200, Laws of 1949 (4200-5 Rem. Supp. 1949), provides:

            "The salaries of county officers of class A counties and counties of the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth classes, as determined by the last preceding Federal census * * * shall be per annum respectively as follows:" (Emphasis ours)

            then follows the respective salaries for the respective positions in the respective counties.

            This would appear to make such classification automatic.  All are bound to take notice of such fact, courts, public and county officials and others.  No official finding or judgment other than a finding of the Bureau of Census is necessary.  See the Jordan case, supra.  It would therefore seem that public officials should take notice and act upon any preliminary bulletins of the Bureau of Census, and may treat such bulletins as official announcements of such bureau, even though such bulletins are not the final certificates.  Auditors therefore would seem to be authorized to collect the fees under section 2, chapter 82, Laws of 1909 (5182 Rem. Rev. Stat.), as based upon the classification of their respective counties as shown by such preliminary bulletins.

            Under the same reasoning we must hold that county auditors in such counties as such bulletins may show to be counties which have advanced to the third or higher classification are justified in setting up the necessary machinery for the election of coroners in their respective counties.

             [[Orig. Op. Page 9]]

            We quote from the Holcomb case, supra which was a case which involved the calling of an election for a tax collector.  The Texas laws created the office of tax collector in counties having a population of 10,000 as "determined by the preceding census of the United States."  Under the 1910 census Lubbock County had a population considerably less than 10,000, but under the 1920 census the population as shown by a preliminary bulletin issued by the Director of Census was 11,096.  The court held that under such circumstances the county authorities were acting within the law when they ordered the election, saying in part:

            "* * * We think, when the bulletin was given to the public, officials who were required to act with reference thereto may take official notice that the enumeration had been made and was then in the archives of that office, subject to the inspection of the public in which the population of Lubbock county had been determined.  The fact that it may be corrected does not indicate that the census was not complete and then a public document under the law.  We believe the election officers of Lubbock county were acting within the law when they ordered the election of tax collector and declared appellee elected to that office."

            The same principle would also apply to any counties where such preliminary bulletins may show to have advanced from the ninth class to a higher class as to the offices of auditor and assessor.

            By the same reasoning if there are any counties which are lowered in classification under the preliminary bulletins as above set forth the county auditors should proceed as though such bulletins were final.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General