OFFICES AND OFFICERS - STATE - EXPENSES - EFFECT OF 1959 INCREASE OF PER DIEM ALLOWANCE OF STATE OFFICIALS AND EMPLOYEES ON $25.00 PER DIEM ALLOWANCE FOR OFFICIALS OF DEPARTMENT OF COMMERCE AND...

OFFICES AND OFFICERS - STATE - EXPENSES - EFFECT OF 1959 INCREASE OF PER DIEM ALLOWANCE OF STATE OFFICIALS AND EMPLOYEES ON $25.00 PER DIEM ALLOWANCE FOR OFFICIALS OF DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT. 

The 1959 statutory increase in the per diem allowance for state officials and employees does not affect the 1957 statute allowing reimbursement of expenses of not to exceed $25.00 to the director and supervisors of the department of commerce and economic development. 

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                                                                   April 28, 1959 

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                              Cite as:  AGO 59-60 No. 32 

Attention:  !ttClem Yelle,Assistant State Auditor

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

             Does section 1, chapter 194, Laws of 1959, when effective, which increases the per diem allowance for state officials and employees, supersede chapter 215, Laws of 1957? 

            We answer your question in the negative. 

                                                                     ANALYSIS 

            During its regular 1959 session, the legislature passed an act increasing the per diem allowance for state officials and employees.  Section 1, chapter 194, Laws of 1959 (cf. RCW 43.03.050) provides as follows: 

            "The heads of all state departments may prescribeper diem rates of allowance, not exceeding twelve dollars in lieu of subsistence and lodging to elective  [[Orig. Op. Page 2]] and appointive officials and state employees while engaged on official business away from their designated posts of duty, but within the state of Washington or an adjoining state, and not exceeding fifteen dollars per day while engaged on official business elsewhere."  (Emphasis supplied.) 

            This act specifically amended section 1, chapter 86, Laws of 1943, as last amended by section 1, chapter 259, Laws of 1953.  The only substantive change made by this amendment was in the amount of the allowance.  Prior to the above, state officials and employees received per diem of nine dollars per day when within the state and adjoining states, and twelve dollars a day when within other states.

             The problem here is whether thisgeneral act relative to per diem payments supersedes section 13, chapter 215, Laws of 1957 (cf. RCW 43.31.130) which reads as follows: 

            "The director and the supervisor of any division may travel throughout the state or other states and may contact other states and agencies in the performance of their duties.  The director and supervisors shall receive no per diem, but shall receive reimbursement for subsistence and traveling expenses incurred while away from their respective places of abode, in lieu of other provisions made by law for reimbursement of their expenses as such state employees, not to exceed twenty-five dollars per day.  The director is authorized to delegate similar authority to other members of his staff who shall then be reimbursed for their expenses in the same manner as herein provided for the director and division supervisors." 

            Chapter 215, Laws of 1957 (cf. chapter 43.31 RCW) established a new department of state government to be known as the department of commerce and economic development and provided for the operation and administration thereof.  Section 13 (cf. RCW 43.31.130) quoted above, is a part of the general law creating the department but is special insofar as the manner in which reimbursement for expenses incurred is to be made. 

            Our court has said that where a general and special law are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law.  State v. Davis, 48 Wn. (2d) 513, 294 P. (2d) 934; State v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897.  However, this is not an  [[Orig. Op. Page 3]] absolute rule to be applied in every case.  A special law may be repealed by a general law if that is the manifest intent of the legislature.  State v. Whitney, 66 Wash. 473, 120 Pac. 116. 

            Thus, our problem is reduced to a question of whether section 1, chapter 194, Laws of 1959 repeals or amends section 13, chapter 215, Laws of 1957 (cf. RCW 43.31.130)supra. 

            A statute may be repealed or amended either: (1) expressly, or, (2) by implication.  There was no express repeal or amendment of section 13, chapter 215, Laws of 1957 (cf. RCW 43.31.130) by the 1959 enactment referred to above.  Thus, we must only determine whether an amendment or repeal by implication was intended or effected.

             It is a well established principle of law that repeals or amendments of statutes by implication are not favored.  InState v. Becker, supra, our court, in discussing this principle, said at page 97: 

            "'Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect.' 

            "See, also, Peterson v. King County, 199 Wash. 106, 90 P. (2d) 729;State v. Cross, supra; Rosenthal v. Tacoma, 31 Wn. (2d) 32, 195 P. (2d) 102;Lindsey v. Superior Court, 33 Wn. (2d) 94, 204 P. (2d) 482."

             See also, AGO 59-60 No. 18 [[to Dale Nordquist, State Senator on February 27, 1959]].  See also, AGO 59-60 No. 18. 

            Applying the foregoing rules to the question presented here it is our opinion that: 

            (1) Section 13, chapter 215, Laws of 1957 (cf. RCW 43.31.130) is a special statute providing for reimbursement for subsistence and travel expenses of the director and supervisor of the department of commerce and economic development "in lieu of other provisions made by law for reimbursement of their expenses as such state employees."

              [[Orig. Op. Page 4]]

            (2) Since this statute specifically provides that "the director and supervisors shall receive no per diem," the enactment of section 1, chapter 194, Laws of 1959, relating to an increased per diem allowance is not repugnant to the former statute. 

            (3) The statutes are not inconsistent but can, by a fair and reasonable construction, be reconciled and both be given effect. 

            (4) The legislature manifested no intent that its 1959 act should in any way affect section 13, chapter 215, Laws of 1957 (cf. RCW 43.31.130).

             Therefore, we conclude that section 13, chapter 215, Laws of 1957 (cf. RCW 43.31.130) will not be superseded by section 1, chapter 194, Laws of 1959, when the latter becomes effective. 

            We trust the foregoing will be of assistance to you. 

Very truly yours, 

JOHN J. O'CONNELL
Attorney General 

ROBERT J. DORAN
Assistant Attorney General