COUNTY COMMISSIONERS ‑- EXPENSES ‑- OTHER THAN MILEAGE ‑- SUBSISTENCE ‑- LODGING ‑- COUNTIES OF SIXTH, SEVENTH, AND EIGHTH CLASSES

COUNTY COMMISSIONERS ‑- EXPENSES ‑- OTHER THAN MILEAGE ‑- SUBSISTENCE ‑- LODGING ‑- COUNTIES OF SIXTH, SEVENTH, AND EIGHTH CLASSES

1. RCW 36.17.020 (1953 Supp.), allowing "ten dollars per diem for expenses to commissioners in counties of the sixth, seventh, and eighth classes, does not repeal or amend RCW 36.17.030, allowing mileage, subsistence and lodging to county officers.

2. The "ten dollars per diem for expenses" authorized for commissioners in sixth, seventh, and eighth class counties by RCW 36.17.020 (1953 Supp.) is a limitation upon non-travel [[nontravel]]expenses of those commissioners; such expenses may be incurred, up to a maximum of ten dollars, on any day in which any portion of the commissioner's time is devoted to county business.

3. Commissioners in the counties affected have been entitled to such expenses since the effective date of RCW 36.17.020 (1953 Supp.) (midnight, June 10th, 1953) even though they were already in office on that date.

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                                                               September 8, 1954

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 312

Attention:  Mr. A. E. Hankins, Chief Examiner

Dear Sir:

            By letter as previously acknowledged you have requested the opinion of this office upon the effect of RCW 36.17.020 (1953 Supp.), insofar as it provides that commissioners in counties of the sixth, seventh and eighth classes shall receive twelve hundred dollars a year "and ten dollars per diem for expenses."  We have taken the liberty of paraphrasing your questions in this way:

             [[Orig. Op. Page 2]]

            1. How, if at all, does RCW 36.17.020 (1953 Supp.) affect RCW 36.17.030 with regard to the reimbursable travel expenses (including mileage and subsistence and lodging) of commissioners in counties of the sixth, seventh and eighth classes?

            2. Is the "ten dollars per diem for expenses" payable on meeting days of the commission, or on days or major portions thereof devoted to county business, or on some other basis?

            3. Are commissioners who were in the middle of a term of office on the effective date of the statute entitled to the benefit of the "ten dollars per diem for expenses"?

            In our opinion, your questions should be answered as follows:

            1. RCW 36.17.030 is unaffected by RCW 36.17.020 (1953 Supp.).

            2. The "ten dollars per diem for expenses" contemplates expenses other than for travel, subsistence, and lodging; and subject to audit as provided in RCW 36.32.310 expenses of this nature may be incurred on any day or portion thereof devoted to county business.

            3. Yes.

                                                                     ANALYSIS

            1. RCW 36.17.030 is derived from a portion of section 1, chapter 200, Laws of 1949.  RCW 36.17.020 (1953 Supp.) is an amendment of another portion of section 1, chapter 200, Laws of 1949.  The original severance of the two parts of section 1, chapter 200, was effected by the code reviser for purposes of convenience.  RCW 1.04.020 provides in relevant part that:

            "* * * Any section of the Revised Code of Washington (as supplemented or modified by the 1950 supplement) expressly amended by the legislature, including the entire context set out, shall, as so amended, constitute the law and the ultimate declaration of legislative intent."

            We therefore make no statement as to the validity of the amendment under Article II, section 37, of the Constitution.

             [[Orig. Op. Page 3]]

            RCW 36.17.020 (1953 Supp.) is derived from section 1, chapter 264, Laws of 1953, which contains no express amendment or repeal of RCW 36.17.030.  If construed as an implied repeal, the result would be one which we do not believe the legislature intended; the removal of statutory authority for payment of travel expenses incurred by commissioners and other county officers in all but three classes of counties.  Further, since county commissioners may incur expenses other than for travel (which term we use here to indicate mileage, subsistence and lodging), there is no necessary conflict between RCW 36.17.020 and RCW 36.17.030 (1953 Supp.).  Thus, for example, the second proviso of section 1, chapter 23, Laws of 1913, stated

            "* * * That such county commissioners shall be entitled to all actual traveling andother necessary expenses incurred in the discharge of their duties."  (Emphasis supplied)

            The same reasoning of course applies in connection with the possibility of an implied amendment; no necessary implication operates in support thereof.  The "ten dollars per diem for expenses" must therefore be construed to fix only a limitation upon non-travel [[nontravel]]expenses incurable by the commissioners of the counties involved.

            2. Expenses under RCW 36.17.020 (1953 Supp.) may be incurred on any day or portion thereof devoted to county business.  It seems clear that such expenses must be incurred in connection with the official duties of the commissioners in question; this must be confirmed by the procedure set out in RCW 36.32.310.  The phrase "per diem" must mean, we think, that the non-travel [[nontravel]]expenses incurred on any particular day are not to exceed ten dollars.  It is not necessary that a full day, or major portion thereof, be spent on county business by the commissioner in order to make the expense provision applicable.  The meaning of the phrase "per diem" is not so restricted, but rather looks to any portion of a day in this context.  State ex rel. Greb v. Hurn, 102 Wash. 328.

            3. We think the "ten dollars per diem for expenses" has been applicable to expenses incurred by commissioners in office on the effective date of the amendment; that is, since midnight, June 10th, 1953.  The opposite conclusion could be reached only from the premise that the legislature, although explicitly using the word "expenses," in fact meant "compensation."  Article II section 25, and Article XI, section 8, of the Constitution would then apply to prevent  [[Orig. Op. Page 4]] accrual of the compensation to commissioners incumbent on the date mentioned.

            It is true that the expense language is contained in section primarily concerned with compensation.  But any number of expense provisions appended in their enactment to compensation sections might be cited from our laws.  We have examined a great many of these and have discovered no case in which the general context has been held for that reason alone to defeat the clear meaning of the legislative language "for expenses."  It is also true that the legislative history of House Bill 67, which became RCW 36.17.020 (1953 Supp.), shows that the compensation for commissioners of the counties in question was originally fixed at $2,700 per annum without the expense provision.  But the fact remains that the bill was amended before final passage to read as it now does.

            If we are correct in our conclusion that expenses incurred under RCW (1953 Supp.) 36.17.020 must be audited under RCW 36.32.310, as expenses, it follows that the ten dollars "per diem for expenses" cannot be considered as "salary" or compensation within the meaning of the sections of the Constitution cited above.  If, on the other hand, it were an allowance in gross, expendable in the discretion of the recipient without accounting, it might be salary or compensation.  State ex rel. Todd v. Yelle, 7 Wn. (2d) 443.  We do not believe, in view of what has been said, that "ten dollars per diem for expenses" constitutes such an allowance.  The answer to your third question must therefore be "yes."

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

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General