COUNTIES ‑- SECOND CLASS ‑- COMMISSIONERS ‑- SALARIES ‑- ALLOCATION OF PART FROM COUNTY ROAD FUND

COUNTIES ‑- SECOND CLASS ‑- COMMISSIONERS ‑- SALARIES ‑- ALLOCATION OF PART FROM COUNTY ROAD FUND.

County commissioners in a county of the second class may not under existing statutes allocate a portion of their salaries from the county road fund or from tax mills earmarked for county roads.

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

                                                               December 19, 1963

Honorable C. W. "Red" Beck
State Representative, 23rd District
Route 5, Box 15
Port Orchard, Washington

                                                                                                                Cite as:  AGO 63-64 No. 76

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:

            Is it legally permissible for the county commissioners in Kitsap county, a county of the second class, to allocate a portion of their salaries from the county road fund or from tax mills earmarked for county roads?

            We answer your question in the negative.

                                                                     ANALYSIS

            In your letter you indicate that a substantial portion of the time of the county commissioners is devoted to supervision of roads.  You note that the road fund in some counties is in much better financial condition that the general fund.  Therefore, you suggest, it could provide the general fund with some relief if part of the county commissioners' salaries could be paid from this fund.

            Boards of county commissioners have only such powers as have been granted to them expressly or by implication by the constitution and statutes of the state.  Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938).  The powers and duties of county commissioners with respect to county roads are found both among those provisions relating to their powers and duties generally and among those provisions of the revised code applying particularly to county roads.  RCW 36.32.120 provides in general that the county commissioners shall:

             [[Orig. Op. Page 2]]

            ". . .

            "(2) Lay out, discontinue, or alter county roads and highways within their respective counties, and do all other necessary acts relating thereto according to law, except within cities and towns. . . ."

            RCW 36.32.320, applicable to certain classes of counties only, provides as follows:

            "Each member of the board of county commissioners, in counties of the sixth, seventh, eighth and ninth classes, in addition to his duties as a member of the board of county commissioners and as ex officio road commissioner of the several road districts in his commissioner's district, shall oversee the construction and maintenance of all county and district roads and bridges in his commissioner district, and for time actually spent in the performance of such duties as overseer, he shall be entitled to compensation at the rate of ten dollars per diem:  Provided, That as such compensation for overseeing the construction and maintenance of roads and bridges in his commissioner district he shall not receive more than one thousand two hundred dollars per year.  All claims for such compensation must be approved by a majority of the board of county commissioners and the superior court as in other cases of extra compensation."  (Emphasis supplied.)

            RCW 36.75.020, found among the statutes relating specifically to county roads, provides as follows:

            "All of the county roads in each of the several counties shall be established, laid out, constructed, altered, repaired, improved, and maintained by the board of county commissioners of the respective counties as agents of the state."

            RCW 36.75.040, which is similar to RCW 36.32.100 (2), provides further general powers and duties of county commissioners with respect to county road administration.  RCW 36.75.050, which is pertinent to this discussion, provides as follows:

            "The powers and duties vested in or imposed upon  [[Orig. Op. Page 3]] the boards with respect to establishing, examining, surveying, constructing, altering, repairing, improving, and maintaining county roads, shall be exercised under the supervision and direction of the county road engineer.

            "The board shall by resolution, and not otherwise, order the survey, establishment, construction, alteration, or improvement of county roads; the county road engineer shall prepare all necessary maps, plans, and specifications therefor, showing the right of way widths, the alignments, gradients, and standards of construction."

            With regard to salaries of county officers, RCW 36.17.010 provides in general terms as follows:

            "The county officers of the counties of this state, according to their class, shall receive a salary for the services required of them by law, or by virtue of their office, which salary shall be full compensation for all services of every kind and description rendered by them."

            The board of county commissioners in a county of the fifth or higher class cannot receive extra compensation for services performed as road overseers.  RCW 36.32.320,supra.  See, also, the opinion of this office to the prosecuting attorney of Thurston county dated October 23, 1943. (informal).  In addition to their salaries, however, all county commissioners are entitled to be reimbursed for their expenses incurred in the performance of official duties.  RCW 36.17.030.  Special provision is made for reimbursement of expenses of county commissioners incurred as road commissioners.  RCW 36.32.310.

            As to the source of payment, the ordinary expenses of county government, including the salaries of county officers, are payable from the current expense fund (originally called the general fund) unless other legislative provision is made.  See, AGO 1899-1900, p. 87, to the prosecuting attorney of Yakima county, dated August 24, 1899; 15 McQuillin, Municipal Corporations, (3rd ed.) §§ 39.45 and 41.24.

            RCW 36.33.010 establishes the current expense fund as follows:

            "Every county shall maintain a current expense fund to which shall be credited all taxes levied for that purpose and all fees collected, fines assessed, and forfeitures adjudged in the county  [[Orig. Op. Page 4]] the proceeds of which have not been specifically allocated to any other purpose."

            In addition, the legislature originally established a salary fund for all counties by § 36, Laws of 1890 (p. 314).  That act expressly required supplementation of any deficiency in the salary fund from the current expense fund.  However, this salary fund was apparently abolished by the language of a proviso in § 62, chapter 71, Laws of 1897, and as a result this office concluded in AGO 1897-1898, p. 266, that the salaries of county officers were to come thenceforth from the county current expense fund.

            Notwithstanding § 62, chapter 71, Laws of 1897, supra, however, the original statutory language relating to the salary fund was retained in the various codifications, including the Revised Code of Washington, until finally expressly repealed by § 2, chapter 273, Laws of 1961. With this express repeal, however, it is now clear that in other than Class AA, A and first class counties1/ there is no longer any provision for a separate salary fund.

            From this we deem the intent of the legislature to be that the salaries of county officers should be paid from the current expense fund in the absence of other special provision.  This conclusion is strengthened by reference to the language of § 36, Laws of 1890 (p. 314),supra, providing for deficiencies in the salary fund to be charged to current expense.

            We have not overlooked the possible application of RCW 43.09.210 which provides as follows:

            "Separate accounts shall be kept for every appropriation or fund of a taxing or legislative body showing date and manner of each payment made therefrom, the name, address, and vocation of each person, organization, corporation, or association to whom paid, and for what purpose paid.

            "Separate accounts shall be kept for each department, public improvement, undertaking, institution, and public service industry under the jurisdiction of every taxing body.

             [[Orig. Op. Page 5]]

            "All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another.

            "All unexpended balances of appropriations shall be transferred to the fund from which appropriated, whenever the account with an appropriation is closed."

            As to any particular expenses, especially identifiable and chargeable to the county road program, this statute would undoubtedly permit payment out of the county road fund.  The purpose of the road fund is expressed in RCW 36.82.070, as follows:

            "Any money paid to any county from the motor vehicle fund may be used for the construction, alteration, repair, improvement, or maintenance of county roads and bridges thereon and for wharves necessary for ferriage of motor vehicle traffic, and for ferries, and for the acquiring, operating, and maintaining of machinery, equipment, quarries, or pits for the extraction of materials, and for the cost of establishing county roads, acquiring rights of way therefor, and expenses for the operation of the county engineering office,and for any other proper county road purpose.  Such expenditure may be made either independently or in conjunction with the state or any city, town, or tax district within the county."  (Emphasis supplied.)

            A further limitation is expressed in RCW 36.82.020 as follows:

            "Any funds accruing to and to be deposited in the county road fund arising from any levy in any road district shall be expended for proper county road purposes entirely within the limits of the road district from which the same was or  [[Orig. Op. Page 6]] is collected: Provided, That nothing in this section shall prevent the loan or rental of equipment by one road district to another road district in the county."

            This office has concluded, in previous opinions, that in those counties in which per diem payment is authorized for county commissioners as road supervisors, such per diem, as well as traveling expenses, could be paid from the county road fund.  AGO 41-42, p. 64, dated November 4, 1941 [[1941-42 OAG 64 to State Association of County Commissioners]]; also, our previous informal opinion to the prosecuting attorney 1941; also, our previous informal opinion to the prosecuting attorney of San Juan county dated January 5, 1944.  Other special expenses identifiable as county road expenses have been held payable out of the county road fund.  See, AGO 61-62 No. 26 [[to Prosecuting Attorney, Cowlitz County on May 2, 1961]]and 61-62 No. 124 [[to Prosecuting Attorney, Island County on April 25, 1962]].  For this county road fund.  See, AGO 61-62 No. 26 and 61-62 No. 124.  For this reason, we would also conclude that expenses (as distinguished from per diem) of county commissioners in any of the counties incurred under RCW 36.32.310 directly in connection with services performed as ex officio road commissioners can be reimbursed out of the county road fund.  As to salaries, however, the functions of county commissioners in counties of the second class are not the same as those of road overseers but are, rather, functions which should be properly classified as general county government.  See, RCW 36.75.050,supra.  Their services in connection with county roads are, in our opinion, not severable from any of their other duties, as in the case of commissioners of counties in the sixth through ninth classes.

            There is hardly any officer of county government who does not perform some duties which touch upon the county roads or provide some benefit to the county road fund.  If the general governmental function of county commissioners can be divided into parts for the purpose of allocating part of their salaries to the county road fund, then the same conclusion could be made as to the county treasurer and the county auditor and others, the result being simply a tax upon the county road fund for purposes of general government.  This result, we feel, should not be reached without express legislative direction to that effect.

            As to tax funds, there is a further special limitation in that taxes collected in one road district can be expended legally for road purposes only in that district.  See, RCW 36.82.020,supra; also AGO 61-62 No. 124, supra.

            It is our conclusion, therefore, that no portion of the salaries of county commissioners in counties of the second class may be paid from the county road fund under existing statutes.

             [[Orig. Op. Page 7]]

            We trust that the foregoing will be of assistance to you.

Very truly yours,