Bob Ferguson
Other LanguagesAGLO 1971 No. 33 -
Attorney General Slade Gorton
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March 1, 1971
Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98501
Cite as:
Dear Sir:
By recent letter you have requested the opinion of this office on several questions relating to the funding of the state auditor's division of municipal corporations. By way of background, you have indicated in your letter that the proposed state budget for the 1971-1973 fiscal biennium, as submitted to the legislature under chapter 43.88 RCW, includes a proposal to delete all financial support for the division of municipal corporations from either the state general fund or the motor vehicle fund, representing a departure from administrative and legislative practice over a period of several biennia. We are further informed that a question was raised at a committee hearing on the proposed budget as to the validity of that proposal, and that certain members of the committee, as well as your office, desired to obtain the attorney general's opinion on the matter.
Your questions are as follows:
"(1) Does RCW 43.09.270 authorize the auditor through the municipal revolving fund to charge the municipal corporations the pro-rata cost necessary to operate the division of municipal corporations, including the salary of its chief examiner, lead assistant chief examiner, and their secretary?
"(2) Are the costs of the cost audit examinations of street records under RCW 35.76.050 payable from the Municipal Revolving Fund?
"(3) Are the costs of the cost audit examination of the county road engineer under RCW 36.80.080 payable from the Municipal Revolving Fund?"
ANALYSIS
[[Orig. Op. Page 2]]
Because these questions all relate to the meaning of existing statutory provisions, it is appropriate to begin with a reference to certain applicable rules of statutory construction, as follows:
First, of course, the purpose of all statutory construction is to ascertain legislative intent, if possible, and to give effect to that intention when found. In construing a statute, resort must be had to its context and subject matter, and when legislative intent is clear from the language of the statute, it must prevail. Layton v. Home Indemnity Co., 9 Wn.2d 25, 113 P.2d 538 (1941); Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943); Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948). Legislative intent is to be determined primarily from reading the act itself, construing its terms and provisions according to their ordinary meaning, and giving consideration to the purposes and objects sought to be accomplished by the act. State ex rel. Ret. Bd. v. Yelle, 31 Wn.2d 87, 195 P.2d 646, 201 P.2d 172 (1948). Where the language of a statute is plain there is no room for construction, since the meaning will be discovered from the wording of the statute itself. State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).
In addition, statutes must be construed, if possible, so that no clause, sentence or word shall be superfluous, void or insignificant. Group Health Etc. v. King Co. Med. Soc., 39 Wn.2d 586, 237 P.2d 737 (1951). And lastly, it is presumed that the legislature in enacting a statute had knowledge of existing statutes on the subject. Benn v. Grays Harbor County, 102 Wash. 620, 173 Pac. 632 (1918).
Question (1):
The language of the sections which are now codified as RCW 43.09.270 and 43.09.280, prior to their amendment by chapter 209, Laws of 1963, was based upon § 1, chapter 30, Laws of 1911 (referenced as §§ 8355 and 8356 of Remington & Ballinger's Annotated Codes & Statutes of Washington) and read as follows:
Section 8355
"The expense of maintaining and operating the bureau herein provided for shall be paid out of the state general fund in the same manner as other state employees."
Section 8356
"The expense of auditing public accounts shall be borne by each taxing district for the auditing of all accounts under its jurisdiction and the state auditor is hereby authorized and [[Orig. Op. Page 3]] empowered to certify the expense of such audit to the auditor of the county in which said taxing district is situated, who shall promptly issue his warrant on the county treasurer payable out of the current expense fund of the county, said fund, except as to auditing the financial affairs and making inspection and examination of the county, to be reimbursed by the county auditor out of the money due said taxing district at the next monthly settlement of the collection of taxes and to be transferred monthly by the county treasurer to the current expense fund: Provided, That when such examiners are used in auditing the accounts of state offices and institutions, they shall be paid by the state."
By sections 4 and 5 of chapter 209, Laws of 1963, the legislature amended these two sections (as then codified) to read as follows:
Sec. 4. (RCW 43.09.270)
"The expense of maintaining and operating the division shall be paid out of the state general fund: Provided, That those expenses directly related to the prescribing of accounting systems, and field audit supervision, shall be considered as expenses of auditing public accounts within the meaning of RCW 43.09.280, and shall be prorated for that purpose equally among all entities directly affected by such service." (Emphasis supplied)
Sec. 5. (RCW 43.09.280)
"The expense of auditing public accounts shall be borne by each entity subject to such audit for the auditing of all accounts under its jurisdiction and the state auditor shall certify the expense of such audit to the fiscal or warrant-issuing officer of such entity, who shall immediately make payment to the division of municipal corporations: Provided, That no expense of classification 'Auditor I' may be so certified. If the expense as certified is not paid by any taxing district within thirty days from the date of certification the state auditor may certify the expense to the auditor of the [[Orig. Op. Page 4]] the county in which the taxing district is situated, who shall promptly issue his warrant on the county treasurer payable out of the current expense fund of the county, which fund, except as to auditing the financial affairs and making inspection and examination of the county, shall be reimbursed by the county auditor out of the money due said taxing district at the next monthly settlement of the collection of taxes and shall be transferred to the current expense fund."
In addition, by § 6 of this 1963 act, the legislature enacted a new section (now codified as RCW 43.09.282) reading as follows:
"To facilitate the collection and expenditure of funds for auditing municipal corporations there is hereby created a fund entitled the municipal revolving fund. The state treasurer shall be custodian of the fund. All moneys received by the division of municipal corporations or by any officer or employee thereof shall be deposited with the state treasurer, to be credited to the municipal revolving fund. Such fund shall be administered by the division of municipal corporations and shall be used for payment of the expenses of auditing public accounts."
After a thorough review of these statutory provisions, we do not consider them truly ambiguous. Rather, it is our opinion that these statutes, with or without the aid of the various rules of construction set forth earlier in this opinion, require the following four-part answer to your first question.
First, and in general response, none of the costs of operating the division of municipal corporations; other than those which are directly related to the specific functions of (a) prescribing accounting systems, or (b) field audit supervision; are chargeable to the audited municipalities through the municipal revolving fund. We reach this conclusion on the basis that in its 1963 amendment (RCW 43.09.270) the legislature retained the basic requirement that the general expense of maintaining and operating the municipal corporation division is to be paid out of the general fund. By reason of the added proviso, the statute now provides that certain expenses; i.e., those "directly related" to the prescribing of accounting systems, and field audit supervision, are to be prorated among the affected entities. The function of such a proviso is to restrict and modify the general requirement that the division's expenses are to be paid out of the general fund. As such, [[Orig. Op. Page 5]] the proviso is to be strictly construed. Tabb v. Funk, 170 Wash. 545, 17 P.2d 18 (1932); In re Hoss' Estate, 59 Wash. 360, 109 Pac. 1071 (1910). Stated another way, the function of a proviso in a statute is usually to modify the operation of that part of the statute immediately preceding the proviso, or to except something from the operation of the statute which would otherwise have been within it. State ex rel. Pendleton v. Superior Court, 119 Wash. 73, 204 Pac. 1053 (1922). Its function is not to confer a power, or to enlarge the enactment to which it was appended, so as to operate as a substantive enactment itself. In re Hoss' Estate, supra. Consequently, the powers granted by the amendment to RCW 43.09.270 must be strictly construed. The question is thus largely resolved into one of fact, based upon the functions which the persons occupying each of the three positions specified in your question perform.
Second, with particular regard to the chief examiner position, RCW 43.09.190 provides in pertinent part that the auditor:
". . . may appoint and deputize an assistant to be known as chief examiner to have charge of the division, . . ." (Emphasis supplied)
Clearly, the function of the chief examiner, as indicated by that statute and as evidenced by the organizational chart exhibited with your letter, is general supervision, and his salary is not "directly related" to field audit supervision or to the prescribing of accounts. That function, according to the organization chart and the administrative practice of your office, is placed in assistant chief examiners.
Third, with regard to the position of lead assistant chief examiner, no statutes define his duties. Therefore, his duties must be reviewed and if a portion of his duties are directly related to the two functions set out in the statute, that portion is to be recovered under the statute.
Fourth, with regard to the secretary, the same factual determination must be made. Since the proviso must be strictly construed, it would appear highly doubtful if any of her duties are directly related to the prescribing of accounts or field audit supervision. Such expenses would appear to be general operating costs of the division, which costs we have previously determined would not be within the terms of the proviso.
Questions (2) and (3):
Your second and third questions must be answered in the negative, based upon the clear and unambiguous language [[Orig. Op. Page 6]] of the applicable statutes themselves. RCW 35.76.050 provides as follows:
"The division of municipal corporations shall annually make a cost-audit examination of street records for each city and town and make a written report thereon to the legislative body of each city and town. The expense of such examination shall be paid out of that portion of the motor vehicle fund allocated to the cities and towns and withheld for use by the state highway commission under the terms of RCW 46.68.110 (1)." (Emphasis supplied)
RCW 36.80.080 provides as follows:
"The division of municipal corporations shall annually make a cost-audit examination of the books and records of the county road engineer and make a written report thereon to the board of county commissioners. The expense of such examination shall be paid out of that portion of the motor vehicle fund allocated to the several counties and withheld for use of the director of highways under the terms of RCW 46.68.120 (1). The state auditor shall certify the expense of such examination to the highway commission." (Emphasis supplied)
Nothing in RCW 43.09.270, et seq., in our opinion, constitutes any exception to the requirement of those statutes that the costs described therein are to be payable in the manner prescribed therein.
Although the session law source of one of these statutes1/ predates the 1963 amendments to chapter 43.09 RCW, supra, the other does not. What is now RCW 35.76.050 was originally enacted as § 5, chapter 115, Laws of 1963. Notably, it was added as an amendment to existing law, during the same session in which the 1963 amendments to chapter 43.09 RCW, supra, were enacted. Furthermore, both are special acts in that they especially relate to a portion of the overall subject matter of audit costs, which is treated generally in RCW 43.09.270. General acts, whether passed before or after such special enactments, do not constitute an implied amendment or repeal of them unless the legislative intention to do so is clearly evident. Taylor v. Greenler, 54 Wn.2d 682, 344 P.2d 515 (1959).
[[Orig. Op. Page 7]]
A more complete and helpful statement of the rule may be found in State Etc. v. Spanaway Water Dist., Wn.2d 393, 229 P.2d 532 (1951), as follows:
"The general rule of statutory interpretation respecting implied repeals, as previously stated, provides that, in the absence of specific repealing language, a prior act is not repealed by the enactment of a later act relating to the same matter. The exception to the general rule permits a repeal by implication if the later act:
"1. Covers the entire subject matter of the earlier legislation;
"2. Is complete within itself;
"3. Is evidently intended to supersede the prior legislation on the subject; or
"4. If the two acts are so clearly inconsistent with and repugnant to each other that they cannot by fair and reasonable construction be reconciled and both be given effect."
Analyzing the present problem in the light of those guidelines, it is clearly evident that the special acts, namely, RCW 35.76.050 and RCW 36.80.080, cannot be held to have been repealed by implication.
First, the later general act, chapter 209, Laws of 1963, does not cover the entire subject matter of the earlier legislation. The proviso that § 4 of that act attached to RCW 43.09.270 became, as heretofore noted in this opinion, an exception to the earlier general requirement that the expenses of the division should be paid out of the state general fund. To conclude that this added proviso embraced within its scope the subject matter of RCW 35.76.050 and RCW 36.80.080 (relating to paying expenses from portions of the motor vehicle fund) would be to enlarge the scope of the proviso beyond the subject matter of the statute to which it was appended. That is not the function of a proviso. In re Hoss' Estate, supra.
Secondly, this later general act is not complete within itself, because chapter 209, Laws of 1963, relates only to the state general fund; not to expenses payable from the motor vehicle fund.
Thirdly, the general act was not clearly intended to supersede any prior legislation except portions of chapter 43.09 RCW.
[[Orig. Op. Page 8]]
Lastly, the general act is not so inconsistent with either RCW 35.76.050 or RCW 36.80.080 that they both cannot be read together. As they now read, RCW 35.76.050 and RCW 36.80.080 require that certain expenses which are attributable to cost audit examination of street records and the county road engineer are to be payable from motor vehicle fund sources; general expenses of the division itself are to be payable from the state general fund; and certain expenses related to prescribing accounts and supervising field examiners are chargeable to audited entities, and are payable via the medium of the municipal revolving fund.
One further point should be noted. What we have said in this opinion regarding legislative intent is also a basis for pointing out a legislative answer to the entire problem. With reference to all three of your questions, our conclusions are based entirely upon existing statutory provisions. If those statutory provisions are no longer desirable, the legislature now has the opportunity freely to amend them, so as to provide that all costs of operating the division of municipal corporations shall be chargeable to audited municipal corporations and other audited entities, through the municipal revolving fund.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Robert F. Hauth
Assistant Attorney General
*** FOOTNOTES ***
1/Cf., chapter 146, Laws of 1957, now RCW 36.80.080.