OFFICES AND OFFICERS ‑- STATE ‑- MILITIA ‑- ADJUTANT GENERAL ‑- ASSISTANT ADJUTANTS GENERAL ‑- COMPENSATION

OFFICES AND OFFICERS ‑- STATE ‑- MILITIA ‑- ADJUTANT GENERAL ‑- ASSISTANT ADJUTANTS GENERAL ‑- COMPENSATION.

The adjutant general and the two assistant adjutants general of the state of Washington while on active duty as such officers should each receive pay and allowances prescribed for his military rank by the current federal laws and regulations for an officer of his grade and years of service.

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                                                                  March 25, 1965

Honorable Wesley C. Uhlman
State Representative, 32nd District
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 15

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on the following questions:

            (1) Should the adjutant general of the state of Washington receive pay and allowances prescribed for his military rank by the current federal law for an officer of his grade and years of service, as the duly appointed and federally recognized officer of the Army National Guard; and

            (2) Should the two assistant adjutants general (one for the Washington Army National Guard, and one for the Washington Air National Guard) also receive the pay and allowances provided for by the current federal law for an officer of their grade and years of service.

            We answer both questions in the affirmative.

                                                                     ANALYSIS

            The governor is the commander-in-chief of the state militia, except when it is called into federal service.  Article III, § 8, of the state Constitution; RCW 38.08.020.  Pursuant to  [[Orig. Op. Page 2]] Article X, § 2,1/ the legislature has provided for the establishment and organization of the militia by the enactment of a military code which is now part of Title 38 RCW.  RCW 38.08.010 provides in part as follows:

            "The governor shall cause the organized militia of this state at all times to conform to all federal laws and regulations as are now or may hereafter from time to time become operative and applicable, notwithstanding anything in the laws of this state to the contrary. . . ."

            The adjutant general is the chief of staff to the governor (RCW 38.12.010) and the executive head of the militia.  RCW 38.08.020.  He is ordered to "active service" by the governor (RCW 38.12.030) and since 19572/ (§ 2, chapter 250) "may be removed by the governor at will."  The manner of appointment and the qualifications of the adjutant general are set forth in RCW 38.12.030, as follows:

            "Whenever a vacancy has occurred, or is about to occur in the office of the adjutant general, the governor shall order to active  [[Orig. Op. Page 3]] service for that position from the active list of the Washington army national guard or the Washington air national guardan officer not below the rank of a field officer who has had at least ten years service as an officer on the active list of the Washington army national guard or the Washington air national guard during the fifteen years next prior to such detail.  The officer so detailed shall during the continuance of his service as the adjutant general hold the rank of a general officer.

            "Whenever a vacancy has occurred, or is about to occur, in the offices ofassistant adjutants general for the Washington army national guard or the Washington air national guard, the adjutant general with the concurrence of the governor may appoint an officer of the army national guard or the air national guard, who has had at least ten years service in the active list of his respective branch during the fifteen years next prior to such detail.  The officer so detailed, may during the continuance of his service as assistant adjutant general hold the rank of a general officer".  (Emphasis supplied.)3/

             The statute establishing the pay or salary of commissioned officers, warrant officers and enlisted men of the state militia is RCW 38.24.050, which reads as follows:

            "Commissioned officers, warrant officers, and enlisted men of the organized militia of Washington, while in active service, during encampment or other periods of field training, or on any ordered state duty, or on any active duty,shall be entitled to and shall receive the pay and allowances provided by federal laws  [[Orig. Op. Page 4]] and regulations for commissioned officers, warrant officers and enlisted men of the United States army:  Provided, That for travel, officers shall receive only their actual necessary expenses.

            "Extra duty pay or allowances to enlisted men rated as cooks, may be authorized by the commander-in-chief during periods of field service or any other duty for which pay is authorized, but in no case shall such additional extra duty pay or allowances exceed two dollars per day.

            "The value of articles issued to any enlisted man and not returned in good order on demand, and legal fines or forfeitures, may be deducted from such enlisted man's pay."  (Emphasis supplied.)

            The word "officer" is defined by RCW 38.04.020 as follows:

            "Wherever used in this act the word 'officer' shall be understood to designatecommissioned and warrantofficers, and the words 'enlisted men' shall be understood to designate members of the organized militia of Washington other than commissioned or warrant officers. . . ."  (Emphasis supplied.)

            Under RCW 38.04.010 "active service" is defined as follows:

            "The term 'active service' shall be construed to be any service on behalf of the state, or at encampments whetherordered by state or federal authority or any other dutyrequiring the entire time of any organizationor person except when called or drafted into the federal service by the president of the United States and shall be analogous to 'active state duty' as defined in RCW 38.38.004."  (Emphasis supplied.)

            Finally, the term "active state duty," is defined in RCW 38.38.004 (9) as follows:

            "(9) 'Active state duty' means full-time duty in the active military service of the  [[Orig. Op. Page 5]] state under an order of the governor issued under authority vested in him by law, and includes travel to and from such duty."  (Emphasis supplied.)

            Reading these statutes together, in order to ascertain legislative intent,4/ it is our opinion that the adjutant general and the assistant adjutants general, when "ordered" into "active service," shall hold the "rank of a general officer" and "shall be entitled to and shall receive the pay and allowances provided by federal laws and regulations for [such] commissioned officers . . . of the United States army."  See,State v. Dudley, 173 Ind. 633, 91 N.E. 228 (1910).

            There is one further statute, however, which must be considered in completely answering your inquiry; that is, § 1, chapter 47, Laws of 1933 (Cf. RCW 43.03.030).  This statute reads as follows:

            "Wherever the salary or compensation of any state officer appointed by the governor, or of any employee in any office or department under the control of any such officer, is fixed by statute, such salary may hereafter, from time to time be changed by the governor, and he shall have power to fix such salary or compensationat any amount not to exceed the amount fixed by statute."  (Emphasis supplied.)

            The question to be resolved then, is whether the compensation payable to officers and enlisted men under RCW 38.24.050 is "fixed by statute" within the meaning of RCW 43.03.030, supra.  In our opinion that question must be answered in the negative.

            In determining the meaning of any doubtful language of a statute, courts generally resort to rules of statutory construction.  The most fundamental rule of construction is to ascertain and give effect to the intention of the legislature as expressed in the statute.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948); State ex rel. Davis v. Clausen, 160 Wash. 618, 295 Pac. 751 (1931).  The legislative intent, once discovered, is controlling even when contrary to  [[Orig. Op. Page 6]] the strict letter of the statute.  Cory v. Nethery, 19 Wn. (2d) 326, 142 P. (2d) 488 (1943).

            Another fundamental rule, particularly important in this discussion, is that words in a statute are understood according to their ordinary, usual and popular sense, unless the context of the statute clearly shows that a different meaning was intended.  Featherstone v. Dessert, 173 Wash. 264, 22 P. (2d) 1050 (1933); Cory v. Nethery, supra;Miller v. Pasco, 50 Wn. (2d) 229, 310 P. (2d) 863 (1957).

            In its ordinary, usual and popular sense "fixed" means "settled" or "set"; "of established, unchanging, permanent character, settled, lasting."  See,State v. Murzyn, 142 Conn. 329, 114 A. (2d) 210, 211, (1955);National Candy Co. v. Miller, 87 C.C.A. 207, 160 Fed. 51, 56, (1908);Youngblood v. State, 19 Ala. App. 561, 100 South. 87, 88, (1924).  "Fixed," as pertaining to salaries, means established or settled to remain for a time.  Powers v. Isley, 66 Ariz. 94, 183 P. (2d) 880, 884, (1947); Kendall v. Stafford, 178 N.C. 461, 101 S.E. 15, 17, (1919);MacNeill v. Bazemore, 194 Ga. 406, 21 S.E. (2d) 414, 416, (1942);Woodcock v. Dick, 36 Cal. (2d) 146, 222 P. (2d) 667 (1950).  It imports finality and stability.  Culberson v. Watkins, 156 Ga. 185, 119 S.E. 319, 321, (1923).

            According to that standard, the word "fix" has been held to "name the amount."  Commonwealth v. Rose, 160 Va. 177, 168 S.E. 356 (1933); Flagg v. Columbia County, 51 Ore. 172, 94 Pac. 184 (1908).  "A salary, pay or emolument is fixed by law when the amount is named in a statute."  See,Hedrick v. V. S., 16 Ct. Cl. 88 [[16 Ct. Cls. 88]], 101 (1880);Culberson v. Watkins,supra.

            In a few cases the phrase "fix compensation" has been held to mean not necessarily naming an amount, but merely "fixing" the rule or standard by which compensation is to be determined, such as a certain rate per hour or per unit of work.  See, Woodcock v. Dick, supra;Crickett v. State of Ohio, 18 Ohio St. 9 (1868);Flagg v. Columbia County, supra;Morse v. Delaney, 128 Misc. 317, 218 N.Y.S. 571 (1926). However, none of those cases defined the word "fix" so as to include directing pay according to a prevailing rate set by another body.  In fact, the New York court in Morse v. Delaney,supra, recognized that merely directing payment of the "prevailing rate of wages" for certain work would not be within the popular meaning of the word "fix," stating:

            ". . .  As popularly understood,the term 'fix' in this connection implies the establishment of a definite rate of pay, while  [[Orig. Op. Page 7]] the term 'regulate' involves the adoption of a rule or guiding principle to be followed by the authorities in fixing the rate of wages."  (Emphasis supplied.)  218 N.Y.S. 571, 577.

            If the present question were whether the legislature had performed a constitutional duty to "fix compensation," by enacting RCW 38.24.050,supra, the answer might be in the affirmative, using the broadest possible meaning of the term "fix."  That is not the question, however.  In the first place there is no such constitutional mandate in this state.  Article XXVIII, § 1, Amendment 20 of the state Constitution provides in pertinent part as follows:

            "All elected state officials shall each severally receive such compensation as the legislature may direct.  The compensation of any state officer shall not be increased or diminished during his term of office, except that the legislature, at its thirty-first regular session, may increase or diminish the compensation of all state officers whose terms exist on the Thursday after the second Monday in January, 1949."  (Emphasis supplied.)

            In the second place, there is no question here as to whether the legislature has sufficiently performed its duty.  Rather, the question is as to the meaning of a certain descriptive term; i.e., compensation "fixed by statute" as opposed to compensation determined in some other manner.  According to its ordinary meaning (which meaning we must apply) "fixed by statute" means a certain amount or rate stipulated by statute.  It does not ordinarily include compensation left to any contingency, or dependent upon future determination.  See,San Francisco Pioneer Woolen Factory v. Brickwedel, 60 Cal. 166, 177 (1882); Holmes v. Republic Steel Corp., (Ohio Com. Pl.), 69 N.E. (2d) 396 (1946).

            Thus, the compensation of officers and enlisted men under RCW 38.24.050,supra, is not "fixed" by statute, but is actually the antithesis of being "fixed by statute."  It is not established at any permanent amount or monetary rate by any state legislative act; rather, it is in effect "fixed" by the action of another independent governmental body.  See, for a similar analysis, McQuade v. Springfield, 323 Mass. 715, 84 N.E. (2d) 30, 32 (1949).  In effect the legislature refused to "fix" such  [[Orig. Op. Page 8]] compensation in the ordinary sense.  Instead RCW 38.24.050,supra, declares a policy; namely, that while on active duty such officers and men shall be dealt with as military officers and men on the same pay basis as officers and men of the United States Army, rather than as civil officers and civilian personnel.  This, in our opinion, is most consistent with the language and spirit of Article X, § 2, quoted and emphasized in Footnote 1, and RCW 38.08.010, supra.

            The legislative history and contemporaneous circumstances of the various statutes involved in this discussion bear out this legislative intention.  Apparently until 1943, the adjutant general received a fixed salary.  See,inter alia, § 38, chapter 108, Laws of 1895; § 27, chapter 134, Laws of 1909; § 6, chapter 66, Laws of 1913; § 2, chapter 107, Laws of 1917; RRS § 8462 (not carried into RCW).  However, then as now, the legislature always directed the compensation of other commissioned officers and men at least to correspond with that of officers of the United States Army.  See, § 89, chapter 108, Laws of 1895; § 57, chapter 134, Laws of 1909; § 10, chapter 66, Laws of 1913; § 1, chapter 47, Laws of 1915; § 37, chapter 107, Laws of 1917, RRS § 8504.  Very interestingly the legislature sometimes prescribed a separate fixed rate for certain classes of service, while directing pay at federal rates for active duty service.  See, § 89, chapter 108, Laws of 1895, supra; and sometimes prescribed such special rate for the initial thirty-day period of any tour of duty.  See, § 1, chapter 47, Laws of 1915,supra; § 37, chapter 107, Laws of 1917,supra.  Even more significantly this last-cited statute provided in pertinent part as follows:

            "This schedule ofstate pay shall apply only to the first thirty days . . . and after the thirtieth day . . . officers and men shall receive the pay and allowances officers and men in the regular service of the United States of corresponding organizations, grades and terms of service receive."  (Emphasis supplied.)

            Thus, long before 1933, the legislature had established a policy of organizing and disciplining the militia according to federal laws and regulations regarding pay, and recognized a difference between pay fixed by statute, and pay fixed by federally-established schedules.

            In 1933, obviously in a budget-paring economy move dictated  [[Orig. Op. Page 9]] by those economically depressed times, the legislature enacted RCW 43.03.030, supra, allowing the governor to reduce salaries of certain "state officers" and employees in the department under the control of such officer, where such salaries were "fixed by statute."

            Apparently the terms of that statute applied to the office of adjutant general, whose salary was at that time "fixed by statute" at $3,000.00 per annum.  See, § 2, chapter 107, Laws of 1917,supra.  But to hold that it applied to all other officers and enlisted men of the state military department, while on active duty, would be to hold that a general statute (§ 1, chapter 47, Laws of 1933; RCW 43.03.030) impliedly amended or partially repealed the provisions of the special statutes relating to the policy and method of compensating officers and enlisted men of the military department.

            Repeals or amendments of statutes by implication are not favored in law.  Generaux v. Petit, 172 Wash. 132, 19 P.2d 911 (1933).  InHerrett Truck'g Co. v. Wn. Etc. Com., 58 Wn. (2d) 542, 364 P. (2d) 505 (1961), the court stated the rule as follows:

            "A statute may be repealed by implication.  State v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897.  Ordinarily, a general statute does not repeal an earlier special statute by implication.  State ex rel. Sherman v. Benson, 111 Wash. 124, 189 Pac. 1000.  However, there is no rule which prohibits the repeal by implication of a special statute by a general one.  The question is always one of legislative intent.  The earlier special statute must yield to the later general statute where there is a manifest legislative intent that the general statute shall have universal application.  State ex rel. Department of Public Service v. Northern Pac. R. Co., 200 Wash. 663, 94 P. (2d) 502;State v. Becker, supra;Abel v. Diking & Drainage Imp. Dist. No. 4, 19 Wn. (2d) 356, 142 P. (2d) 1017.  The rule was well expressed inAbel v. Diking & Drainage Imp. Dist. No. 4,supra, in which we said:

             [[Orig. Op. Page 10]]

            "'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, andis evidently intended to supersede the prior legislation on the subject, orunless 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. . . .'"  (Emphasis supplied.)

            We find no legislative intent in the general provisions of RCW 43.03.030 to amend by implication the special provisions of RCW 38.24.050.  Obviously the legislature, in authorizing the governor to reduce certain "fixed" salaries, did not mean to eliminate its long-established policy, in keeping with the Constitution itself, directing military pay for military personnel on active duty.  The legislature had previously indicated, in express terms, its own awareness of the difference between pay fixed by state action and pay according to federal laws and regulations.  (§ 37, chapter 107, Laws of 1917, supra).5/   Furthermore, RCW 43.03.030 expressly referred to the "amount" fixed by statute.  No fixed "amount" was stated in the military code as compensation for the commissioned officers and enlisted men of the national guard while on active duty.  For these reasons the two statutes very easily stood together.  RCW 43.03.030,supra, permitted a reduction of the adjutant general's salary (at that time "fixed by statute") while not applying to military compensation fixed by federal schedules.

            The pay of the adjutant general was then also removed from the category of pay subject to RCW 43.03.030, supra.  In 1943, the legislature enacted a new comprehensive military code (chapter 130, Laws of 1943; Title 38 RCW) deleting reference to any stated amount of salary for the adjutant general, and substituting instead the same manner of compensation as it had directed and continued to direct in the case of other officers  [[Orig. Op. Page 11]] and enlisted men on active duty.  See, RCW 38.12.030 and 38.24.050,supra.  In an apparent emphasis of its policy the legislature expressly stated in 1943 that officers and men of the organized militia, while on active duty, "shall be entitled toand shall receive the pay and allowances provided by federal laws and regulations. . . ."  (Emphasis supplied.)