SALARIES OF COMMISSIONERS IN CITIES OTHER THAN FIRST CLASS ‑- WHAT CENSUS MAY BE USED TO DETERMINE CITIES' POPULATION

SALARIES OF COMMISSIONERS IN CITIES OTHER THAN FIRST CLASS ‑- WHAT CENSUS MAY BE USED TO DETERMINE CITIES' POPULATION.

The change of classification of a city by virtue of an increase in population between the time of election and the expiration of the term for which the officer was elected does not create a basis for increase in remuneration of that officer, and any such proposed increase would be in conflict with the Constitution of the State of Washington.

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                                                                 January 30, 1953 

Honorable Donald H. Webster, Director
Bureau of Governmental Research and Services
University of Washington
Seattle 5, Washington                                                                                                              Cite as:  AGO 51-53 No. 473

 Dear Sir:

             You inquire for an opinion, by way of supplement of our letter dated January 21, 1953, as follows:

             1. May the State Census Board's population determination of a city, other than a city of the first class, operating under the commission form of government, made after April 1, 1953, but prior to June 1, 1953, be applied to RCW 35.17.110 to determine the salaries to be paid the city commissioners to said city whose term of office commences June 1, 1953?

             2. If a commission city, other than a city of the first class, requests the State Census Board or the Federal Bureau of the Census to conduct a special census for a city on a contract basis, to be paid for entirely by the city, and such census is certified to by the State Census Board or by the Federal Bureau of the Census prior to the date of the municipal general election on the second Tuesday in March in the year in which commissioners in commission cities are elected, would such census determination be applied to RCW 35.17.110 to determine the salaries of the commissioners in cities other than cities of the first class whose terms of office commence on the first Monday of June, next, following the completion of such census?

              [[Orig. Op. Page 2]]

            Our conclusion to your first question is "no," to your second "yes."

                                                                      ANALYSIS

             Article XI, section 8 of the Washington State Constitution reads, in part, as follows:

             "* * * The salary of any county, city, town, or municipal officer[s] shall not be increased or diminishedafter his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."  (Emphasis added)

             In State ex rel. Maltbie v. Will, 54 Wash. 453, the court held that where the change of a classification of a county, by virtue of an increase in population, results in an increase in salary, this increase cannot benefit the incumbent but will be paid to his successor.  There are numerous variations of the problem involving both increase and decrease in salary, both elective and appointive officials and situations in which the salary change is based upon an express legislative enactment or a statutory formula based upon population figures.  SeeState ex rel. Wyrick v. Ritzville, 16 Wn. (2d) 36, 132 P. (2d) 737 and cases cited therein.  But, having in mind Article XI, section 8 of the State Constitution, it is our conclusion that the applicable rule may be stated as follows:

             The change of classification of a city by virtue of an increase in population between the time of election and the expiration of the term for which the officer was elected does not create a basis for increasing the remuneration of that officer, and any such proposed increase would be in conflict with the Constitution of the State of Washington.

             State ex rel. Cornell v. Smith, 155 Wash. 422, is authority for the proposition that the Federal census is not the exclusive criterion by which a city's population may be determined in order to fix salaries due its commissioners.  RCW 35.17.110 is silent as to the manner in which the population of cities is to be determined for this purpose.  The court held that "some adequate plan of remuneration adopted and carried out in good faith" would be an acceptable basis for fixing the salaries of the commissioners.

              [[Orig. Op. Page 3]]

            It is our conclusion that a special census, Federal or state, prior to the time of the municipal election may be applied to RCW 35.17.110 to determine the salaries of the commissioners in cities other than cities of the first class whose terms of office commence on the first Monday of June, next, following the completion of such census.

 Very truly yours,
DON EASTVOLD
Attorney General 

ANDY ENGEBRETSEN
Assistant Attorney General