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AGO 1950 No. 257 - April 18, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

SALARY OF EXPERT ASSISTANTS HIRED BY COUNTY ASSESSOR

Expert assistants, timber cruisers who are not deputized, hired by the County Assessor at a salary greater than his own, are not subject to the limitation of compensation found in chapter 200, Laws of 1949 (4200-5a Rem. Supp. 1949).

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                                                                   April 18, 1950

Honorable B. Franklin Heuston
Prosecuting Attorney
Mason County
Shelton, Washington                                                                                                              Cite as:  AGO 49-51 No. 257

Dear Sir:

            Receipt is acknowledged of your letter of March 30, 1950, with enclosures of copies of correspondence between you and Mr. Vincent E. Paul, Assessor of Mason County.  Essentially, the question asked of this office is:

            Are timber cruisers employed by the county assessor who are not deputized and who render services in the nature of expert services subject to the limitation of compensation contained in the proviso in section 1, chapter 200, Laws of 1949 (4200-5a Rem. Supp. 1949)?

            The conclusion reached may be summarized as follows:

            The statutory limitation contained in chapter 200, Laws of 1949, is inapplicable to timber cruisers in the employ of the county assessor who are not deputized and who render services in the nature of expert services.

                                                                     ANALYSIS

            As we understand the facts, the forested lands of Mason County have not been cruised since the early nineteen hundreds.  For this reason the county has not been able to assess properly reforested areas which are producing merchantable timber and timber products.  Unable to obtain qualified cruisers at the salary level of the county, the Board of County Commissioners and the County Assessor hired two expert timber appraisers at a salary in excess of that paid to the Assessor.

             [[Orig. Op. Page 2]]

            The powers of the county assessor to appoint assistants or deputies to aid him in the listing and valuation of the property of his county may be found in section 56, chapter 130, Laws of 1925, Ex. Sess. (Rem. Rev. Stat. 11139).  It there provides that the assessor may appoint one or more qualified citizens of his county to act as his assistants or deputies.  Included there also is the following provision:

            "* * *Provided, further, That the assessor may with the consent of the county commissioners appoint one or moreexpert assistants in the valuation of any particular class of property in the county, which assistants need not be residents of said county."  (Emphasis supplied.)

            The opinion of July 27, 1949, of the Attorney General contains the following paragraph:

            "Section 11139,supra, has not been construed by the Supreme Courts; however, there does not appear to be any ambiguity as to the meaning of the section and its provisos.  The statute now provides, and we so hold, that a county assessor, together with his deputies and assistants, shall evaluate all the property of the county, and where aparticular class of property exists which may require expert knowledge to evaluate, one or more 'expert assistants' may be employed for that particular purpose."

            Within the plain meaning of the statutory language, there can be no question but that timber cruisers employed to make surveys, appraise and render advice and recommendations as to reforested areas would be experts in evaluating a particular class of property.  Are these expert assistants within the statutory provision of section 1, chapter 200, Laws of 1949 (4200-5a Rem. Supp. 1949), which reads in part as follows:

            "* * *Provided, That no deputy or clerk employed in the office of any Auditor, Clerk, Treasurer, Prosecuting Attorney, Sheriff, Assessor, Coroner, or Superintendent of Schools shall receive larger compensation than provided for the officer employing him."  (Emphasis added.)

             [[Orig. Op. Page 3]]

            It is to be noted that part of section 56, chapter 130, Laws of 1925, Ex. Sess., (Rem. Rev. Stat. 11139), which deals with "expert assistants" is contained in a proviso.  The purpose of a proviso is to except something from the operation of the act which would otherwise be included within it.  State ex rel. Pendleton v. Superior Court, 119 Wash. 73, 78, 204 Pac. 1053.  Therefore, the conclusion must be that "expert assistants" are not subject to the provisions relating to the citizens of the county appointed by the assessor to enable him to complete the listings and valuations of the property of his county.  They cannot be termed either "assistants" or "deputies."  InStorke v. City of Santa Barbara, 76 Cal. A. 40, [[76 Cal. App. 40]]244 Pac. 158, in an action by a taxpayer attaching a contract for a "scientific appraisal" of real property within the city limits for the purposes of municipal assessment, the court said:

            "Appellant further contends that the employment of an expert appraiser, in effect, amounts to the creation of a new office, or divides the duties of the assessor or makes the appraiser a deputy or assistant assessor, and that, consequently, under section 35 of the charter, his employment must be accomplished by ordinance.  We find no merit in the point.  * * *"

            Not being termed as "deputies" under the statute which creates their existence, "expert assistants" cannot be deemed "deputies" under another statute which relates to "deputies."

            In Webster's New International Dictionary, 2nd Edition (Volume 1, p. 501), a clerk is defined as "One employed to keep records or accounts, or to have charge of correspondence, or the like; a scribe; an accountant;" and in Bouvier's Law Dictionary (Volume 1, p. 505), as "a person employed in an office, public or private, for keeping records or accounts.  His business is to write or register in proper form the transactions of the tribunal or body to which he belongs."  No valid argument can be sustained by saying that the duties of a timber cruiser in appraising reforested areas can be likened to the duties of a clerk.

             [[Orig. Op. Page 4]]

            The conclusion must follow that "expert assistants" are neither "deputies" nor "clerks" and, therefore, are not subject to the limitation as to compensation as found in section 1, chapter 200, Laws of 1949 (4200-5a Rem. Supp. 1949).

Very truly yours,

SMITH TROY
Attorney General

T. H. LITTLE
Chief Assistant
Attorney General

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