OFFICES AND OFFICERS ‑- STATE ‑- PATROL OFFICERS ‑- OFF-DUTY HOURS ‑- WITNESS ‑- TESTIFYING ON BEHALF OF STATE ‑- JUSTICE COURT

OFFICES AND OFFICERS ‑- STATE ‑- PATROL OFFICERS ‑- OFF-DUTY HOURS ‑- WITNESS ‑- TESTIFYING ON BEHALF OF STATE ‑- JUSTICE COURT.

A state patrol officer is not entitled to witness fees for appearing and testifying in a justice court on behalf of the state, county or municipality during off-duty hours unless he be subpoenaed and required to appear and testify in a county other than that in which he resides, or unless his appearance concerns matters not connected with his official duties.

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                                                                  August 7, 1963

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
Tacoma, Washington

                                                                                                                Cite as:  AGO 63-64 No. 47

Dear Sir:

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

            Is a state patrol officer entitled to witness fees for appearing and testifying in justice court on behalf of the state, county, or municipality, during off-duty hours?

            We answer your question in the analysis.

                                                                     ANALYSIS

            RCW 42.16.020 provides as follows:

            "No state, county, municipal or other public officer within the state of Washington, who receives from the state, or from any county or municipality therein, a fixed and stated salary as compensation for services rendered as such public officer shall be allowed or paid any per diem for attending or testifying on behalf of the state of Washington, or any county or municipality therein, at any trial or other judicial proceeding, in any state, county or municipal court within this state; nor shall such officer, in any case, be  [[Orig. Op. Page 2]] allowed nor paid any per diem for attending or testifying in any state or municipal court of this state, in regard to matters and information that have come to his knowledge in connection with and as a result of the performance of his duties as a public officer as aforesaid:  Provided, This section shall not apply when any deduction shall be made from the regular salary of such officer by reason of his being in attendance upon the superior court, but in such cases regular witness fees shall be paid; and further, that if a public officer be subpoenaed and required to appear or testify in judicial proceedings in a county other than that in which he resides, then said public officer shall be entitled to receive per diem and mileage as provided by statute in other cases; and, provided further, that this section shall not apply to police officers when called as witnesses in the superior courts during hours when they are off duty as such officers."

            This office has previously held that a state patrol officer is an "officer" as that term is used in RCW 42.16.020, supra.  See, 30 AGO 877 [[1929-30 OAG 877 to State Highway Patrol on November 18, 1930]].

            RCW 42.16.020 provides that public officers shall not be paid or allowed any per diem for testifying on behalf of the state, county or municipality at any trial or judicial proceedingin any state, county, or municipal court, unless they are called as a witness in a county other than that in which they reside.  Our court has held that a justice court is a constitutional court.  State ex rel. Pacific Coast Adjust. Co. v. Taggart, 159 Wash. 201, 292 Pac. 741 (1930).  Therefore, we are of the opinion that justice courts are included within the meaning of state, county or municipal courts, as those terms are used in RCW 42.16.020.

            RCW 42.16.020 further provides that the prohibition against receiving witness fees shall not apply to police officers when called as witnesses in thesuperior courts during hours when they are off duty.  The rule of statutory construction, expressio unius est exclusio alterius ‑-that the expression of one thing excludes others not expressed‑- is applicable.  See,State v. Thompson, 38 Wn.2d 774, 232 P.2d 87 (1951).  The language of the statute clearly carves out an exception for appearances of a police officer as a witness in the superior court alone.  When words used in a statute are clear and unambiguous, the statute itself furnishes a rule of construction.  See,Parkhurst  [[Orig. Op. Page 3]] v. City of Everett, 51 Wn.2d 292, 138 P.2d 327 (1957).

            The above rule of statutory construction is supported by the legislative history of the 1903 legislature, which adopted the statute in question.  The statute originated in Senate Bill No. 17, and was passed by the senate reading as follows:

            ". . . and provided further that this act shall not apply to police officers when called as witnesses during hours when they are off duty as such officers."  House Journal 1903, p. 177.

            The house of representatives on February 3, 1903, over the objection of a minority report of the house judiciary committee inserted after the word "witnesses" the words "in the superior courts."  The senate thereafter adopted the house amendment and the bill became law as it now stands in RCW 42.16.020.  House Journal 1903,supra; § 1, chapter 10, Laws of 1903.

            Hence, in the absence of any further exception which would allow witness fees to a police officer, the general provisions of RCW 42.16.020 are applicable to appearances of a police officer who testifies in a justice court during off-duty hours.

            We conclude therefore that state patrol officers are precluded under the general provisions of RCW 42.16.020 from being paid or allowed any per diem for testifying during off-duty hours, on behalf of the state, county or municipality at any trial in a justice court unless appearing as a witness in a county other than that in which they reside.

            Furthermore, as was indicated in an earlier opinion, 30 AGO 877 [[1929-30 OAG 877 to State Highway Patrol on November 18, 1930]], nothing contained herein should be construed as prohibiting state patrol officers from collecting witness fees for testifying in matters wholly disconnected with their official duties.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HERBERT GELMAN
Assistant Attorney General