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AGO 1954 No. 282 - July 09, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

SOURCE OF COMPENSATION FOR MEMBERS OF BELLINGHAM CITY COUNCIL SITTING AS MEMBERS OF COUNTY EQUALIZATION BOARD.

1. Where a later act covers the entire subject of earlier legislation, it is completely within itself and is evidently intended to supersede the prior legislation, there is a repeal of the prior legislation by implication.

2. In conclusion, a provision allowing payment from the county general expense fund among other general provisions leads to such provision being applicable to all the provisos of the considered section.

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                                                                     July 9, 1954

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
Whatcom County Court House
Bellingham, Washington                                                                                             Cite as:  AGO 53-55 No. 282

Dear Sir:

            You have requested the opinion of this office as to whether the three members of the County Equalization Board appointed by the City of Bellingham should be paid by the County of Whatcom or by the City of Bellingham.

            In our opinion, members of the city council so appointed should be paid by Whatcom County.

                                                                     ANALYSIS

            Under the laws of the State of Washington, 1895, chapter 160, section 3, it was provided that the members of the city council, acting with the county commissioners, as a Board of Equalization, could be compensated by the city council for the time they were actually engaged as members of the Board of Equalization.  Thus, unless subsequent actions of the legislature have either expressly  [[Orig. Op. Page 2]] or impliedly repealed the above cited section, it would seem that the legislative intention was to grant the city council the permissive right to pay such of its members as served with such Board.  It seems too clear to require citation of authority that until legislation was enacted creating some other source from which compensation could be paid to the city council members, that the permissive source above referred to was exclusive.

            There is no legislation expressly repealing the cited section.  Therefore, if such section has been repealed, it must be a repeal by implication.

            Repeals by implication are ordinarily of course not favored in law.  Abel v. Diking and Drainage Improvement District, 19 Wn. (2d) 356, 142 P. (2d) 1017 (1943).

            However, there is a recognized exception to the above general rule and later acts will be held to have repealed earlier acts if certain conditions exist.  The best statement of the conditions will be found in the case of State v. Spanaway Water District, 38 Wn. (2d) 393, 229 P. (2d) 532 (1951).  There our Supreme Court on page 397 of the Washington opinion says:

            "The exception to the general rule permits a repeal by implication if the later act:  (1) Covers the entire subject matter of the earlier legislation; (2) Is complete within itself; (3) Is evidently intended to supersede prior legislation on the subject; or (4) If the two acts are so clearly inconsistent with and repugnant to each other that they cannot by fair and reasonable construction be reconciled and both be given effect."

            We feel that a fair reading of the laws of the State of Washington, Ex. Sess. 1925, chapter 130, and particularly § 68 thereof, clearly and completely cover the entire subject matter of the earlier legislation and is complete within itself inasmuch as such section embodied in itself the three possible, factual situations that require equalization.  These three factual situations are as follows: (1) property within a county and not within the city of the first and second class; (2) property within the cities of the first and second class; (3) property within a county having a township organization and not within the cities of the first and second class.  The earlier legislation on the subject treated these factual situations at different legislative sessions and the earlier codifiers codified the same separately.  Here where one section covers all of the possible factual situations  [[Orig. Op. Page 3]] the legislation appears to be entirely complete within itself.  These circumstances would seem to satisfy conditions one and two above quoted from theSpanaway Water District case.

            It is inconceivable to us that the legislature intended to cover the entire subject matter of the earlier legislation in later legislation without intending to supersede the earlier legislation by the later.  Thus, in our opinion, condition three of the conditions set out by our Supreme Court in theSpanaway case has been satisfied.  As condition four is an alternative condition, we do not deem it necessary to comment thereon herein.  With the necessary conditions satisfied the permissive right to pay members of the city council from city funds is repealed.

            There then remains for consideration the question as to whether or not the repealing legislation allows payment to the members of the city council sitting with the Board of Equalization, from any other source.  We are of the opinion that the portion of the second proviso to section 68 providing for the payment of $5.00 per day to members of the Board applies to the city council members for the reason that the remaining general provisions in such proviso obviously apply to the Board sitting in first and second class cities and there is no grammatical or logical distinction between application of the provision allowing payment and the following provisions:

            The substantial reenactment of section 68 by Laws of Washington 1934, chapter 206, section 35, in no way affects our opinion.

            It is therefore our opinion that there should be paid to the members of the Bellingham City Council for each day of actual attendance at a meeting of the County Board of Equalization the sum of five dollars ($5.00) from the current expense fund of Whatcom County.

            We sincerely hope that the above will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

J. D. THOMAS, JR.
Assistant Attorney General

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