OFFICES AND OFFICERS - COUNTY ‑- SUPERINTENDENT ‑- SALARY ‑- INCREASES GRANTED BY 1963 LEGISLATURE ‑- CONSTITUTIONAL PROHIBITION AGAINST INCREASING OR DECREASING SALARY OF COUNTY OFFICIAL AFTER…

OFFICES AND OFFICERS ‑- COUNTY ‑- SUPERINTENDENT ‑- SALARY ‑- INCREASES GRANTED BY 1963 LEGISLATURE ‑- CONSTITUTIONAL PROHIBITION AGAINST INCREASING OR DECREASING SALARY OF COUNTY OFFICIAL AFTER ELECTION OR DURING TERM.

County superintendents of schools elected in November, 1962, to take office in September, 1963, may not receive the raise in salary granted by the 1963 legislature because of Article XI, § 8, of the State Constitution which prohibits increasing or decreasing the salary of a county officer after his election or during his term.

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                                                                   May 29, 1963

Honorable Louis Bruno
Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 27

Dear Sir:

            By request previously acknowledged you have requested an opinion of this office upon a question which we have paraphrased as follows:

            Are the county superintendents of schools who were elected in November, 1962, entitled to the salary raise given to county superintendents by the passage of chapter 164, Laws of 1963?

            We answer your question in the negative.

                                                                     ANALYSIS

            RCW 36.17.020 sets forth the salaries to be paid to the county officers in the various classes of counties.  Chapter 164, Laws of 1963, amends RCW 36.17.020 by simply raising the salaries of all the county officials listed, including the county superintendent of schools.  It would serve no useful purpose to set out in detail the raises to be received by the county superintendents in the various classes of counties.  Suffice to say the salaries were raised in every class of county.  The act will go into effect on June 13, 1963.

            It is further to be noted that the county superintendents who were elected in November, 1962, will not begin their terms of office until September, 1963.  RCW 28.19.010.

             [[Orig. Op. Page 2]]

            Two provisions of our state constitution regulate the increase or decrease in salary a county officer may receive.  They are Article II, § 25, as amended by Amendment 35, and Article XI, § 8.  Article II, § 25, as amended by Amendment 35, provides in part:

            ". . . nor shall the compensation of any public officer be increased or diminishedduring his term of office. . . ." (Emphasis supplied.)

            This section obviously would not prevent the county superintendents from receiving the prospective salary raise.  The salary raise will take effect on June 13, 1963, whereas the term of office for the superintendent begins in September, 1963.  The increase thus will accrue before the term of office rather than "during" the term of office.  See,State ex rel. Henneford v. Yelle, 12 Wn.2d 434, 121 P.2d 948 (1942).

            However, Article XI, § 8, of our constitution, the second section applicable, provides in part:

            ". . . The salary of any county, city, town, or municipal officers shall not be increased or diminished after his election, or during his term of office; . . ."  (Emphasis supplied.)

            In the early case ofState ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479 (1909), our supreme court considered the question of whether a change in classification of a county automatically increased the county officers' salaries.  The court determined that the answer depended upon when the classification change occurred in relation to when the officers were elected.  In answering the question the court considered not only Article II, § 25,supra, and Article XI, § 8, supra, but also Article III, § 25, and Article IV, § 13, which also deal generally with the salaries of public officers.  The court stated on page 456:

            ". . . These sections disclose a consistent and uniform intention to prevent any increase or decrease in the compensation of public officers during their respective terms of office, and in the cases of judges and county officers not only during their term but also at any timeafter their election."  (Double emphasis ours.)

             [[Orig. Op. Page 3]]

            As to what the phrase "after his election," means, our courts have been silent.  However, inState ex rel. Maltbie v. Will, supra, State ex rel. Smith v. Neal, 25 Wash. 264, 65 Pac. 188 (1901), and State ex rel. Jordan v. Dehart, 15 Wn.2d 551, 131 P.2d 156 (1942), three cases where there was a question as to whether or not the petitioners were "elected" prior to the effective date of the salary change, the supreme court assumed without question in each case that the petitioners were "elected" in the same month in which the voting took place.

            Such a construction appears to be consistent with the election statutes found in Title 29 RCW.  Although the statutes do not determinatively state when a person is "elected," the various statutes regarding the canvassing of elections seem to indicate that a person is formally elected when the votes have been canvassed and the successful candidates known.

            Chapter 29.62 RCW sets out the canvassing procedure for all officers required to canvass votes.  RCW 29.62.020 provides in part as follows:

            "On the tenth day after each election or primary or as soon as he has received the returns from all the precincts included therein, the county auditor shall call a meeting of the county canvassing board at his office on a day and hour certain, for the purpose of canvassing the votes cast therein. . . ."

            RCW 29.62.040 provides in part:

            "The county canvassing board at any meeting for canvassing the returns of a primary or election shall proceed as follows:

            ". . .

            "(2) The county auditor with the assistance of the other members of the canvassing board shall proceed to count the vote of the precincts, precinct by precinct;

            ". . .

            "(4) File a certificate of their canvass signed by all the members with the county auditor;"

             [[Orig. Op. Page 4]]

            It appears that once the votes are canvassed and the canvass certified to the auditor, the person is "elected," for RCW 29.27.100 provides in part:

            "Immediately after the ascertainment of the result of the election . . . the county auditor shall notify the person elected, and upon his demand issue to him a certificate of his election."  (Emphasis supplied.)

            As far as the auditor is concerned, the results are ascertained when the canvassing board files the certificate of its canvass with his office.  Such a result also appears to conform to the general intent of the framers of the constitution, as evidenced by their use of the two distinct phrases "after his election" and "during his term of office."

            Furthermore, it is pertinent to point out that when the county superintendents were "elected" in November, 1962, the legislature had not even met let alone considered raising the salaries of the county officials.  The legislature did not pass chapter 164, Laws of 1963, until March 13, 1963, over four months after the "election" of the county superintendents.

            Thus, it is our conclusion that after the "election" of the county superintendents in November, 1962, the superintendents elected may not receive the raise in salary which goes into effect on June 13, 1963, because of the prohibitions contained in Article XI, § 8, of our state constitution.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BRUCE W. COHOE
Assistant Attorney General