SALARY ‑- BOARD OF INDUSTRIAL INSURANCE APPEALS ‑- ADOPTION BY REFERENCE -- STATUTES ‑- GENERAL AND SPECIAL ACTS

SALARY ‑- BOARD OF INDUSTRIAL INSURANCE APPEALS ‑- ADOPTION BY REFERENCE --STATUTES ‑- GENERAL AND SPECIAL ACTS

A new member of the board of industrial insurance appeals appointed to serve a term commencing June 18, 1957, is legally entitled to a salary of $14,500 per annum as set by RCW 2.08.090, as last amended by chapter 260, Laws of 1957.

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                                                               November 21, 1957

Honorable J. Harris Lynch
Chairman, Board of Industrial Insurance Appeals
General Administration Building
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 135

Dear Sir:

            This is written in answer to your request for an opinion on the following question:

            May a member of the board of industrial insurance appeals appointed in September, 1957, to serve the balance of a term which commenced June 18, 1957, be paid a salary of $14,500.00 per annum pursuant to the provisions of § 2, chapter 219, Laws of 1949, and § 2, chapter 260, Laws of 1957?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Section 2, chapter 219, Laws of 1949 (RCW 51.52.010), created the board of industrial insurance appeals.  The pertinent provision with regard to salaries of members of the board reads as follows:

            ". . .  Members shall devote their entire time to the duties of the Board and shall receive for their services a salary which shall be in addition to reasonable travel allowance as  [[Orig. Op. Page 2]] follows:  The chairman shall receive the same salary as that provided for Superior Court Judges in Class A counties; the two remaining members shall each receive the same salary less the sum of five hundred dollars ($500) per annum. . . ."

            Since the original enactment of that provision in 1949, chapter 219 has been amended only once, and no change was made in the above‑quoted portion of the act relative to the salaries of members of the board by that amendment.  See chapter 255, Laws of 1951.  Section 2, chapter 260, Laws of 1957, effective June 13, 1957, set the salary of superior court judges at $15,000.

            RCW 43.03.040 authorizes the governor to fix the salaries of directors of departments and members of commissions appointed by him within certain designated limits.  With certain exceptions, the highest salary that can be paid under this statute is $12,000 per annum.

            The immediate issue is whether or not the legislature has repealed by implication the provisions of RCW 51.52.010 by the adoption or amendment of RCW 43.03.040.

            The legislative history of RCW 43.03.040 should be noted.  The first enactment by the legislature of what is now RCW 43.03.040 is to be found in § 1, chapter 224, Laws of 1937, which was an act prescribing the compensation of directors of the departments of state government.  It provided, in pertinent part, as follows:

            "The directors of the several departments and members of the tax commission of the state government, who are subject to appointment and removal by the governor, shall each severally receive such salaries, payable in monthly installments, as shall be fixed by the governor upon the basis of departmental responsibility, not to exceed, however, the sum of $7,500 per annum."

            Chapter 224, above quoted, was subsequently amended by § 1, chapter 111, Laws of 1949, to read as follows:

            "The Directors of the several departments and members of the several boards and commissions, who are subject to appointment by the Governor, shall each severally receive such salaries, payable in monthly installments, as shall be fixed by the Governor upon the basis of official responsibility, not to exceed, however, the sum of ten thousand dollars per annum for the Director of Highways and the Director of Public Institutions and the sum of eighty-five  [[Orig. Op. Page 3]] hundred dollars per annum for the other Directors and members and the sum of seven thousand five hundred dollars for the Director of the Veterans' Rehabilitation Council."

            By § 1, chapter 340, Laws of 1955 (RCW 43.03.040), the legislature created the governor's advisory committee on salaries.  Section 2 amended the 1949 act to read as follows:

            "The directors of the several departments and members of the several boards and commissions, who are subject to appointment by the governor, shall each severally receive such salaries, payable in monthly installments, as shall be fixed by the governor, after consideration of the recommendations of the advisory committee on salaries created in section 1 of this act, upon the basis of official responsibility, not to exceed, however, the sum of twelve thousand dollars per annum for the director, acting director, commissioner, board member or other such officer, except the director of public institutions and the sum of eight thousand five hundred dollars for the director of the veterans' rehabilitation council."

            Inasmuch as the 1955 amendment of RCW 43.03.040 did not change the broad language of the 1949 act, any repeal by implication of RCW 51.52.010 must be found in the 1949 legislative enactment, rather than in the provisions of chapter 340, Laws of 1955.

            Thus, we have two legislative acts:  Section 2, chapter 219, Laws of 1949 (RCW 51.52.010); and § 1, chapter 111, Laws of 1949 (RCW 43.03.040), both passed at the same session of the legislature, in conflict with each other.  Section 2, chapter 219, Laws of 1949 (RCW 51.52.010), is a special act limited in its application to the members of the board of industrial insurance appeals.  Section 1, chapter 111, Laws of 1949 (RCW 43.03.040) is a general act, apparently covering the directors of all departments and the members of all boards and commissions appointed by the governor.

            The applicable rule of statutory construction applied when a general and a special act which are inpari materia are passed at the same session of the legislature, is stated as follows in the case of   State v. Becker, 39 Wn. (2d) 94, 96:

             [[Orig. Op. Page 4]]

            ". . . where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law.  Hartig v. Seattle, 53 Wash. 432, 102 Pac. 408; Sutherland, Statutory Construction (3rd ed.) 488, § 2022."

            In addition, seeState ex rel. Oregon R. & N. Co. v. Clausen, 63 Wash. 535, andState v. Davis, 48 Wn. (2d) 513.

            We conclude, therefore, that the special act of 1949, creating the board of industrial insurance appeals and fixing the salary of the members based on the salary provided by law for superior court judges, must control over the general act passed during the same session of the legislature authorizing the governor to fix the salaries to be paid to directors of departments and members of boards and commissions appointed by him and limiting the salary to $12,000.

            Your request raises another legal question, i.e., whether the adoption by reference of the salary provisions of RCW 2.08.090 in RCW 51.52.010 was intended by the legislature to incorporate all subsequent amendments of the incorporated statute.  The general rule with regard to adoption by reference is found in 2 Sutherland, Statutory Construction §§ 5207 and 5208, as follows:

            "There are two general types of reference statutes: statutes of specific reference and statutes of general reference.  A statute of specific reference, as its name implies, refers specifically to a particular statute by its title or section number.  A general reference statute refers to the law on the subject generally.  An example of this type of reference is a provision that contracts made under the statute are to be let 'in the manner now provided by law.'"

            Section 5208:

            "A statute of specific reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, unless the legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments with the statute. . . .

             [[Orig. Op. Page 5]]

            "A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked.  This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted."

            In the case ofChelan County v. Navarre, 38 Wash. 684, 688, the supreme court applied the rules stated by Sutherland, supra, as follows:

            ". . . When a statute adopts, by reference, the whole or a portion of an existing statute, it means the statute existing at the time of the adoption, and subsequent changes in the statute adopted will not work changes in the adopting statute; but, when the adopting statute makes no reference to any particular act, but refers to the general law regulating the subject, changes in the general law do work changes in the adopting statutes, and, to determine what the law is on the particular subject of the reference, the existing law must be consulted.  Here the adopting statute does not refer to any particular act, but to the general statute on the subject of waiving a jury trial, hence the existing law governs the subject, and not the law in force at the time the condemnation statute was enacted."

            This rule has been adhered to by the supreme court in subsequent decisions.  SeeState v. Rasmussen, 14 Wn. (2d) 397; andPacific First Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347.

            After an analysis of the specific adoption by reference in question, it is our opinion that it was the intention of the legislature in RCW 51.52.010 to incorporate all subsequent amendments of RCW 2.08.090, thus enabling the salaries of the members of the board of industrial insurance appeals to be maintained at the level provided for the judges of the superior courts at all times.

            Section 2, chapter 260, Laws of 1957, became effective on June 13, 1957, and provides that the salary of a superior court judge shall be $15,000.00.  Thus, a member of the board of industrial insurance appeals whose term of office commences on or after June 13, 1957, is entitled to receive the salary of $14,500.00.

             [[Orig. Op. Page 6]]

            Accordingly, it is the opinion of this office that a new member of the board of industrial insurance appeals appointed in September, 1957, to fill a term which commenced on June 18, 1957, after the effective date of chapter 260, Laws of 1957, is entitled to be paid the salary established by chapter 260, Laws of 1957, less $500.00 as set by RCW 51.52.010.  This conclusion is consistent with that reached in an opinion issued September 1, 1955, to the state auditor.  In so far as it is inconsistent with AGO 55-57 No. 97, the latter is overruled.

            We are aware of the existence of RCW 43.03.030, which was adopted in 1933 and apparently authorizes the governor to decrease the compensation of any state officer appointed by him when the compensation is fixed by statute.  Whether or not this statute has been repealed by the adoption of RCW 43.03.040 need not be determined at this time.  It suffices to say that our supreme court, in ruling on the precise statute, has held that it is not a delegation to the governor of authority to increase or decrease the salary of a public officer after the commencement of the term.  InState ex rel. Bergin v. Yelle, 11 Wn. (2d) 151, 153, the supreme court stated:

            "The fact that the governor, pursuant to Rem. Rev. Stat. (Sup.), § 10976-1, may have attempted to reduce relator's salary cannot affect his right to the salary fixed by statute.  Obviously, if the legislature is without power to increase or diminish the salary of a state officerduring his term of office, it cannot delegate such power to the governor."  (Emphasis supplied.)

            Since the governor did not act to reduce the salary set by statute prior to June 18, 1957, (the date the term of office in question commenced) any power he may possess under RCW 43.03.030 cannot affect the right of one holding office during that term to a salary of $14,500.

            We trust the above will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General