LIMITATION ON PER DIEM PAY AS ROAD OVERSEER FOR COUNTY COMMISSIONER APPOINTED TO FILL UNEXPIRED TERM

LIMITATION ON PER DIEM PAY AS ROAD OVERSEER FOR COUNTY COMMISSIONER APPOINTED TO FILL UNEXPIRED TERM.

County commissioner appointed to fill unexpired term is entitled to per diem pay as road overseer to the extent of the difference between $1,000 statutory maximum and what his predecessor received for such services during the year in which he resigned.

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                                                                  August 4, 1950

Honorable Fred G. Campbell
Prosecuting Attorney
Lincoln County
Davenport, Washington                                                                                                       Cite as:  AGO 49-51 No. 317

Dear Sir:

            We have your request of June 13, 1950, for an opinion on the following question:

            Would a county commissioner in a sixth class county, who may be appointed to succeed the office of one who has resigned, be entitled to per diem pay as ex officio road commissioner to the maximum extent of $1,000 in the year of his appointment, although his predecessor during the same year has received compensation as ex officio road commissioner?

            Our conclusion may be summarized as follows:

            Such an appointed commissioner would be entitled to per diem pay as ex officio road commissioner only to the extent of the difference between the $1,000 maximum under Chapter 274, section 1, Laws of 1927, and what his predecessor received during the year of his resignation.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            You state that the resigning commissioner was elected in the Fall of 1948 to a four year term of office commencing in 1949.  Chapter 200, section 1, Laws of 1949 (1949 Rem. Supp. § 4200-5a), provides an annual compensation of $1200 for county commissioners in sixth class counties.  However, Article XI, section 8 of the Washington Constitution, provides that the salary of a county officer shall not be increased or diminished after his election or during his term of office.  InState ex rel. Hovey v. Clausen 117 Wash. 475, 201 Pac. 770, it was held that a judge appointed to fill an unexpired term was not entitled to increased compensation under a statute passed prior to his appointment but subsequent to his predecessor's election, but was limited to the pay authorized by law for the office at the time his predecessor was elected.  Accordingly, Chapter 87, Laws of 1945 (1945 Rem. Supp. § 4200-5a), is in effect until the end of the term to which the resigning commissioner was elected, and the office comes within the ambit of Chapter 274, section 1, Laws of 1927 (Rem. Rev. Stat. § 4053-1), which provides in part as follows:

            "It shall be the duty of each member of the board of county commissioners, in counties in which the compensation of members of the board of county commissioners is paid per diem, 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, to oversee the construction and maintenance of all county and district roads and bridges in his commissioner's district, and for time actually spent in the performance of such duties as overseer, he shall be entitled to the same compensation as is provided by law for his services as county commissioner:  Provided That such compensation for overseeing the construction and maintenance of roads and bridges in his commissioner's district he shall not receive more than one thousand dollars per annum:  * * *"

            As you suggest, the answer to your inquiry depends upon whether the limitation of Chapter 274 is one personal to the commissioner receiving compensation as ex officio road overseer or whether it is a limitation on the office of the commissioner.

             [[Orig. Op. Page 3]]

            The compensation a county commissioner receives for his services as road overseer is no less the salary of a public officer than the compensation provided for performing the duties of a county commissioner.  Our court has held that the constitutional inhibition against change in the salary of a public officer during his term of office or after his election refers to the term of office and not to the individual occupying the office at the particular time.  State ex rel. Hovey v. Clausen above;State ex rel. Henneford v. Yelle 12 Wn. (2d) 434, 121 P. (2d) 948;State ex rel. Wyrick v. Ritzville 16 Wn. (2d) 36, 132 P. (2d) 737.

            The holding in these cases does not, of course, embrace the specific situation with which we are here concerned.  It is indicative, however, of the general proposition that salary is an incident of office and a limitation thereon pertains to the term rather than the individual.  Salary limitations are imposed for the protection of taxpayers, since reason and public policy require a degree of certainty in the disbursement of public moneys.  That certainty would be disturbed if several individuals were permitted to be compensated during the same statutory period to the maximum allowed under the statute for that period.

            We are not unmindful of the mandatory language of Chapter 274, which imposes a duty on a county commissioner to undertake the additional responsibilities of road overseer.  However, as pointed out in McQuillen's Municipal Corporations, 3d Edition, Volume 4, page 7, "One accepting a public office or position is presumed to do so with full knowledge of the law as to salary, compensation or fees; and all limitations prescribed must be strictly observed."

            For the reasons expressed above we are of the opinion that the limitation of Chapter 274 is imposed on the office and does not refer to the individual.  Accordingly, we hold that the appointed commissioner in this instance is entitled to per diem pay as road overseer only to the extent of the difference between the statutory $1,000 maximum and the amount his predecessor received for such services during the year in which he resigned.

Very truly yours,

SMITH TROY
Attorney General

LAWRENCE K. McDONELL
Assistant Attorney General