DIKING DISTRICTS ‑- COMMISSIONERS ‑- COMPENSATION INCREASE WITHIN TERM OF OFFICE ‑- ELECTION OF ‑- DECLARATIONS OF CANDIDACY ‑- FILING ‑- FEES

DIKING DISTRICTS ‑- COMMISSIONERS ‑- COMPENSATION INCREASE WITHIN TERM OF OFFICE ‑- ELECTION OF ‑- DECLARATIONS OF CANDIDACY ‑- FILING ‑- FEES. 

(1) The increase in compensation for diking district commissioners provided by RCW 85.04.400 (chapter 30, Laws of 1951), which was approved February 28, 1951, but which had no emergency clause and therefore did not become effective until 90 days after approval, does not apply to diking commissioners whose terms of office began prior to the effective date of the act, even though such commissioners were elected and took office after the passage and approval of the act.

(2) That candidates for the office of diking commissioners should file their declarations of candidacy with the board of diking commissioners but are not required to pay a filing fee.

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                                                                  March 21, 1952 

Honorable Mitchell Doumit
Prosecuting Attorney
Wahkiakum County
Cathlamet, Washington                                                                                                              Cite as:  AGO 51-53 No. 263

 Dear Sir:

             By letter of March 4, 1952, you state that the three commissioners for Consolidated Diking Districts Nos. 1 and 3 on Puget Island, Wahkiakum County, were elected on March 13, 1951; that one of such commissioners was elected for a term of one year; one for a term of two years; and one for a term of three years, such terms commencing April 2, 1951.

             You refer to chapter 30, Laws of 1951, by which the legislature made provision for an increase in the compensation of diking district commissioners from a maximum of $3.00 per day to a maximum of $8.00 per day.  This act was approved by the Governor on February 28, 1951, but did not carry an emergency clause and therefore did not become effective until 90 days after such approval.  Thus, the effective date of the act was after April 2, 1951, the date of the commencement of the terms of the commissioners.

              [[Orig. Op. Page 2]]

            You ask our opinion on the questions:

             "(1) What compensation are the commissioners elected in 1951 entitled to receive?  Does the fact that the law fixing their compensation was passed and signed into law prior to their election, but did not become effective until after their election, affect the amount of compensation to which they are entitled during their entire terms or only prior to June 6, 1951, ‑ the effective date of the act?

             "(2) What requirements govern the filing of candidates for the office of diking commissioners in such a district?  Can they file, with whom, and what filing fees are required?"

             We conclude that:

             (1) The increase in compensation for diking district commissioners provided for by RCW 85.04.400 (chapter 30, Laws of 1951), which was approved February 28, 1951, but which had no emergency clause and therefore did not become effective until 90 days after approval, does not apply to diking commissioners whose terms of office began prior to the effective date of the act, even though such commissioners were elected and took office after the passage and approval of the act.

             (2) That candidates for the office of diking commissioners should file their declarations of candidacy with the board of diking commissioners but are not required to pay a filing fee.

                                                                      ANALYSIS

             (1) The Washington State Constitution, Article II, § 25, provides:

             "The legislature shall never grant any extra compensation to any public officer * * * nor shall the compensation of any public officer be increased or diminishedduring his term of office."  (Emphasis supplied)

             In applying a similar prohibition contained in Article XI, § 8, with specific reference to the salaries of county, city, town or municipal officers, our Supreme Court has held that:

              [[Orig. Op. Page 3]]

            "* * * the compensation of a county officer, authorized and fixed at the date of his election, must continue without change during the entire term for which he is elected.  * * *" (Emphasis supplied.)  State ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479, 104 Pac. 797;State ex rel. Jordan v. DeHart, 15 Wn. (2d) 551, 131 P. (2d) 156.

             In each of these cases it was held that the salary of a public officer could not be automatically increased during his term of office by virtue of a change in the county's classification resulting from an increase in population, even though a pre‑existing statute provided for such automatic increase in salary.

             The office of diking district commissioner is a public office as defined by our courts.  State ex rel. Brown v. Blew, 20 Wn. (2d) 47, 145 P. (2d) 554, and in view of the construction which the court has placed upon the restrictions of the Washington Constitution against any increase in compensation during the term of the public officer, we believe that chapter 30 of the Laws of 1951 is inoperative to increase the compensation of the commissioners of the diking district involved in your inquiry during their respective terms which began April 2, 1951.  At the beginning of such terms the compensation was fixed and determined by the prior act.  RCW 85.04.400 (§ 1, chapter 171, Laws of 1909; RRS § 4291).  (NOTE: As the result of a typographical error, the RCW section was erroneously designated as RCW 85.04.450 instead of RCW 85.04.400 in the published volume of the 1951 Session Laws.)  At the beginning of the terms it was not known whether chapter 30, Laws of 1951, would ever become effective.  In the absence of an emergency clause it could have been defeated by referendum proceedings initiated within the 90-day period following the Governor's approval of the act.  We are therefore of the opinion that the compensation which each of the three diking commissioners whose terms began April 2, 1951, is entitled to receive at any time during their respective terms is determined by RCW 85.04.400 (RRS § 4291), which sets a maximum of $3.00 per day.

             In an opinion rendered by this office to the State Auditor under date of June 30, 1911 (Report of Attorney General 1911-1912, page 93), a contrary conclusion was reached in a situation similar to the one here involved with respect to an act providing for an increase in the compensation of the state highway commissioner.  However, as recently as the case of State ex rel. Jordan v. DeHart, supra, (1942), our Supreme Court has adhered to a strict application of the constitutional provision against an increase in the compensation of an officer during his term of  [[Orig. Op. Page 4]] office.  The court there reaffirmed the view that the compensation of an officer authorized and fixed at the date of his election must continue without change during the entire term for which he is elected.  The opinion of June 30, 1911, to the State Auditor is therefore overruled in so far as it is inconsistent with the conclusion hereinabove indicated.

             (2) As to your second question, RCW 85.04.035 (§ 1, chapter 103, Laws of 1949; § 4242 Rem. Supp. 1949), provides that the election for diking district commissioners shall be conducted by the board of diking commissioners.  RCW 29.21.60 [[RCW 29.21.060]](§ 5, chapter 101, Laws of 1951), provides that all candidates for district offices (other than irrigation districts) shall file declarations of candidacy with the board charged with the conduct of the election.

             This section further provides that all candidates required to file declarations of candidacy shall pay the same fees as required of candidates at the September primary election.  The filing fees required under the provisions of RCW 29.18.050 (RRS § 5182), are computed on the basis of a fixed annual compensation attached to the office involved.  As diking district commissioners are paid on a per diem basis, it is impossible to apply the scale of fees provided by the statute.  We are advised by the office of Secretary of State that it has been the general practice throughout the state not to require filing fees for offices which carry only a per diem compensation as distinguished from a fixed annual compensation.  In view of this established practice without further legislative action to provide a statutory scale which is applicable to per diem compensation, we are of the opinion that candidates for the office of diking commissioner are not required to pay a filing fee.

 Very truly yours,
SMITH TROY
Attorney General 

FRED L. HARLOCKER
Assistant Attorney General