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AGO 1951 No. 451 - February 14, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

OFFICERS ‑- JUSTICE OF THE PEACE ‑- CONSTITUTIONAL PROHIBITION ‑- INCREASING OR DIMINISHING SALARY DURING TERM OF OFFICE ‑- OATH OF OFFICE ‑- RESIGNATION ‑- APPOINTMENT ‑- FEE BASIS ‑- CITIES, INCREASE IN POPULATION.

1. The fixed salary of a justice of the peace cannot be increased without legislative enactment.

2. The constitutional prohibition against increase or diminution of salary of a justice of peace during his term of office cannot be evaded by failure of the justice of qualify until after the effective date of the law.

3. The constitutional inhibition would apply to a justice of the peace who resigned and was appointed by the county commissioners to the same office after the salary had been changed by legislation.

                                                                   - - - - - - - - - - - - -

                                                                February 14, 1951

Honorable John Panesko
Prosecuting Attorney, Lewis County
Chehalis, Washington                                                                                               Cite as:  AGO 49-51 No. 451

Dear Mr. Panesko:

            We have your letter of January 11, 1951, reading as follows:

            "Because of the fact that Chehalis has now become a city of over five thousand population the status of the two Justices of the Peace we had in this precinct has been changed from operating on a fee basis to that of operating on a salary and we are only entitled to have one Justice of the Peace as I understand the statutes.

            "One Justice of the Peace ran and was elected but refused to qualify because of the fact that the salary was inadequate.  He indicates that operating on a fee basis he averaged about $300.00 a month or so and that it took virtually his full time.

             [[Orig. Op. Page 2]]

            "Because of the fact that this is the county seat virtually all of the civil matters in Justice Court in the county are filed in this precinct.  The great bulk of criminal business is filed also in Justice court in this precinct because of its convenience.  As a result there is a lot of work for a Justice to do and requires a great deal of time and it will be impossible for us to secure a Justice of the Peace to do this job for $100.00 a month.

            "I am wondering if you know of any way under our present statute whereby we could increase the pay of the Justice of the Peace without legislative action.

            "If legislation is taken increasing the compensation would the Justice of the Peace who was elected but has not yet qualified be eligible for any increase made if he did not qualify until after the increase became effective, if any were made?

            "Would this situation be any different if he qualified and then resigned and any legislation changed the pay and he was then appointed by the commissioners would he be allowed to accept the change or any increase in pay?"

            The conclusions reached may be summarized as follows:

            1. The fixed salary of a justice of the peace cannot be increased without legislative enactment.

            2. The constitutional prohibition against increase or diminution of salary of a justice of peace during his term of office cannot be evaded by failure of the justice to qualify until after the effective date of the legislation increasing the compensation.

            3. The constitutional inhibition would apply to a justice of the peace who resigned and was appointed by the county commissioners to the same office after the salary had been changed by legislation.

                                                                     ANALYSIS

             [[Orig. Op. Page 3]]                                                                           

            Your request apparently is an endeavor to find means to alleviate the hardship that would be placed upon a justice of the peace who must give full time to a heavy schedule of cases but at a salary fixed by the legislature in the amount of $100.00 per month over half a century ago.                                                                             

            You advise, in effect, that under the fee basis applicable to justices of the peace, before the population of Chehalis increased to over five thousand inhabitants the justice would have received about $300.00 per month, but because of the retirement of one justice the other now must perform the duties of two, together with increased duties occasioned by the city's advancement to another classification, with the salary decreased to only one‑third of the former amount.

            1. You first inquire if there is any way under the present statute to increase the salary of a justice of peace without legislative action.

            Turning to the authorities relating to public officers and specifically to justices of the peace in cities with a population of over five thousand inhabitants, the first provision applicable is section 10, Article IV of our state constitution, which provides in part:

            "The legislature shall determine the number of justices of the peace to be elected in incorporated cities . . .  In incorporated cities or towns having more than five thousand inhabitants, the justices of the peace shall receive such salary as may be provided by law, and shall receive no fees for their own use."

            Pursuant to this provision of the constitution, the legislature enacted section 7563, Rem. Rev. Stat., providing:

            "There shall be elected at the general election to be held in November 1898, and biennially thereafter in cities of more than five thousand inhabitants only one justice of the peace and one constable and no more."

            In 1897, the legislature, following the mandate of the constitution as to fixing salaries of such justices of the peace, enacted section 7571 Rem. Rev. Stat., which provided that salaries of the justices of the peace in cities of more  [[Orig. Op. Page 4]] than five thousand inhabitants should be twelve hundred dollars per annum.  No increase has been made in this amount since that date.  Legislation as to future salaries was enacted in 1913 and is set forth in section 7568, Rem. Rev. Stat., as follows:

            "The salaries of justices of the peace and constables hereafter elected or appointed shall be and remain as are now provided by law."

            There is one exception to the rule and that is when new duties have been imposed upon an officer which are foreign to the duties he was required to perform under the law as it existed at the time of his election.  SeeState ex rel. Seattle v. Carson, 6 Wash. 250.  There is no claim by the justice of peace that additional duties have been imposed in the present instance, and we know of no way in which the salary of the justice can be increased.

            2. In respect to your second question, it is somewhat obscure just what the justice expects to gain by failure to qualify until after a law is enacted increasing the salary of his office.

            Section 7551, Rem. Rev. Stat., provides:

            "Every justice of the peace shall hold his office for the term of two years and until his successor is elected and qualified."

            If, by failing to qualify, the justice believes that he will continue in office under his former term since he was re‑elected [[*sic (reelected)]], the decision of our Supreme Court would preclude such hold over.  InState ex rel. Vanderveer v. Gormley, 53 Wash. 543, p. 549, it was held:

            "* * * For instance, it is a matter of common knowledge that an incumbent actually in office is often reelected for a succeeding term.  In such case he is not permitted to continue in office upon his former oath and bond but must again qualify.  He cannot decline to qualify and continue in office under his former tenure.  One in this situation must hold under his new tenure or not at all.  * * *"

             [[Orig. Op. Page 5]]

            The justice may be of the opinion that if he failed to qualify until a law has been enacted, increasing the salary of his office, that his term of office does not begin until he qualifies and he would thus avoid the restriction in our state constitution prohibiting the increasing or diminishing of the salary of any public officer during the term for which he was elected.  Careful consideration should be given to the intendment and meaning of the constitutional inhibition.  The general rule is that it applies to all officers who hold public office and receive a fixed salary, regardless of whether such offices were of legislative creation or specified in the constitution.  The inhibition has been held not to apply to officers who receive specific fees for specific services, in State ex rel. Thurston County v. Grimes, 7 Wash. 445, p. 450:

            "Touching the justice's and constable's fees, it is claimed that, as the fee bill of 1893, which reduced fees materially, was passed subsequently to their election and qualification, the prohibition against diminishing the compensation of any public officer contained in art. 2, § 25 of the constitution operates to postpone the effect of that law until the terms of these officers expire.  But one authority is cited (Board of Supervisors v. Hackett, 21 Wis. 620), and that case held that such a constitutional provision applied only to such officers as receive a fixed salary out of the public treasury, and not to officers who receive specific fees for specific services.  The section of the Wisconsin constitution construed is exactly like our own, and we think the reasons given for the ruling in the case cited are conclusive."

            The constitutional inhibition against the increase or diminution of salaries of public officers during their term of office is contained in the following:

            Section 25, Article II, provides:

            "The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office."

             [[Orig. Op. Page 6]]

            Section 8, Article XI, provides:

            "The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a population of five thousand and upwards, except that public administrators, surveyors, and coroners may or may not be salaried officers.  The salary of any county, city, town, or municipal officer shall not be increased or diminished after 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."

            The above constitutional provisions were construed together in the caseState ex rel. Funke v. Board of Commissioners, 48 Wash. 461.

            Our Supreme Court understandingly has taken cognizance of the fact that salaries of officers may be inadequate in comparison to the duties performed and that an increase might be warranted as to future incumbents.  The court's attitude is expressed inState ex rel. Livingston v. Aver, 23 Wn. (2d) 572, p. 591, wherein it was said:

            "It may be said to the credit of the legislature that it no doubt recognized the inadequacy of the present salaries of county officers, and we are entirely in accord with the view that such salaries have been and are inadequate; but, be that as it may, we are firmly of the belief that if a violation of these constitutional provisions is permitted or sanctioned on the ground of expediency, either by direct or indirect methods, such constitutional provisions might as well be written out of our organic law."

            InState ex rel. Funke v. Board of Commissioners, it was stated:

            "The increase of compensation by those statutes and also by the one now before us was, no doubt, in each instance a meritorious thing for the legislature to do, having reference to future office  [[Orig. Op. Page 7]] incumbents.  But the constitutional provision as to present incumbents must not be so construed in the interest of seeming expediency or even apparent necessity as shall practically amount to an evasion of the organic law."

            In a long line of cases, the court has consistently and unequivocally held that no evasion of the constitutional prohibition would be tolerated.  InState ex rel. Livingston v. Aver, supra, p. 588, it was said:

            "Many cases have been before this court involving attempts to raise the salary of public officers during the time for which they were elected or appointed.  While in our opinion none of the cases presents a factual situation such as presented in the instant case, they all bear evidence of the fact that this court has zealously guarded against attempted violation of § 25, Art. II, and § 8, Art. XI of our constitution, by whatever method employed to accomplish that end.  This court has recognized that, based upon expediency, evasive methods might be used to accomplish indirectly what could not be done directly."

            And further, in the early case of State ex rel. Davis v. Clausen, 47 Wash. 372, in referring to the constitutional prohibition, the court announced:

            "So that it will be seen that it was a positive policy of the constitution, expressed in every possible way, that the salaries of officers should not be increased during their term of office.  This wise provision was no doubt intended to prevent pernicious activity on the part of the office holders of the state being brought to bear upon the members of the legislature‑-a wise provision which must not be construed out of existence or evaded by legislative enactment."

            Identical or similar restrictions are found in the constitutions of most of the states, and the courts have emphatically enunciated their disapproval of any evasion.  The Supreme Court of New Mexico, in State ex rel. Gilbert v. Sierra County, 29 N.M. 209, 222 Pac. 654, said:

             [[Orig. Op. Page 8]]

            "* * * and the considerations which doubtless entered into and prompted the inclusion of such a provision of the constitution are obvious.  It was designed to protect the individual officer against legislative oppression which might flow from party rancor, personal spleen, enmity, or grudge.  These could well harass and cripple the officer by reducing his compensation during his service; while, on the other hand, party feeling, blood, or business relations might be combined in such pernicious activity in the form of strong and powerful lobbying as to sway the members of the legislature and cause the bestowal of an unmerited increase.  To obviate these conditions is the purpose of this wise constitutional provision."

            We are of the opinion that the justice of peace would not be eligible for any increase of salary under a law passed subsequent to his election by reason of his failure to take the oath of office and furnish bond.

            3. In your last question, you asked if the justice would be allowed to accept a salary increased by the legislature after his election if he resigned and was appointed to fill his unexpired term.  This situation involves two factors: The obligation of an officer reelected to a public office to accept it and continue in office; and the constitutional prohibition contained in section 25, Article II, and section 8, Article XI.  In 43 Am.Jur. page 80, section 263, it is said:

            "It has frequently been said that it is the duty of every person having the requisite qualifications, when elected or appointed to a public office, to accept it, and that the refusal to do so is a common-law offense, and in some jurisdictions the courts have upheld laws which impose penalties on a citizen who refuses to serve after having been selected for an elective office.  The theory is that the public have the right to command the services of any citizen in any official position which they may designate.  Thus, in times of war and great national danger, compulsory military service is required, and the same is true at all times in the case of a  [[Orig. Op. Page 9]] service as a juror.  Where a legal duty rests upon a person elected or appointed to a public office to accept the same, mandamus may be invoked to compel such acceptance.  An attempt to resign an office does not relieve an officer from the obligation of performing his duties, at least until a successor is appointed."

            At common law a resignation must be accepted to relieve the officer of responsibility and create a vacancy.  "An officer may certainly resign," said Chief Justice Ruffin, of North Carolina, "but without acceptance his resignation is nothing and he remains in office."  The officer is subject to the burdens of the office and may be compelled to perform the duties.

            The common law rule prevails in our state and was followed inState ex rel. Royse v. Superior Court, 46 Wash. 616.

            "We see nothing in the above which changes the common law rule.  It is true, it is declared that an office shall become vacant upon the resignation of the incumbent; but nothing is said about the method of effecting a resignation.  The silence of the statute in that regard should be construed to mean that the established common law method still obtains, and that a resignation is not complete until it has been accepted by the appointing power.  Our attention has not been called to any other statutes which the relator claims have effected a change in the common law rule.  In the absence of a clear statutory declaration of a purpose to change the rule, it should not be held that it has been changed.  The longstanding rule is wholesome.  It insures a continuous responsible incumbent in an office.  One may not lightly throw aside responsibilities which he has assumed and leave the public without an official, when some possible emergency might make the existence of a qualified officer of great importance."

            The acceptance of the resignation of the justices is within the discretion of the board of county commissioners.

             [[Orig. Op. Page 10]]

            Authority for appointments to fill vacancies was provided in our Constitution and by legislation.

            Section 6, Article XI of the State Constitution provides:

            "The board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct or road district office of such county by appointment, and officers thus appointed shall hold office till the next general election, and until their successors are elected and qualified."

            This provision has been interpreted by our Supreme Court, in the case ofState ex rel. Moody v. Cronin, 5 Wash. 398, 31 Pac. 864, to apply to a vacancy in the office of justice of the peace since a justice is a precinct officer.

            The constitutional provision, although self-executing according to theMoody case,supra, was implemented by chapter 163, Laws of 1927 (Rem. Rev. Stat. 4059; P.P.C. 480-39).  It provides that:

            "The board of county commissioners in each county shall, at their next regular or special meeting after being apprised of any vacancy in any county, township, precinct or road district office of such county, fill such vacancy by the appointment of some person qualified to hold such office, and the officers thus appointed shall hold office until the next general election, and until their successors are elected and qualified."

            In some jurisdictions, it has been held that a constitutional inhibition of an increase or decrease of a salary of a public officer after his election or appointment does not prevent a statute increasing the salary of the office from applying in the case of one appointed subsequent to its enactment to fill a vacancy caused by the resignation of the incumbent, upon the theory that the constitutional restriction relates to the officer and not the office.  It was said inLancaster v. Jefferson County, 115 Colo. 261, 171 P. (2d) 987, that the purpose of the constitutional restriction to remove temptation from the officer to seek for himself increased compensation did not apply to an officer subsequently appointed to a vacancy any more than to an officer subsequently reelected to a new term.

             [[Orig. Op. Page 11]]

            This holding is contrary to the decisions of our Supreme Court which are in accord with the majority rule.  InState ex rel. Wyrick v. Ritzville, 16 Wn. (2d) 36, it was said that a constitutional provision against increasing or diminishing the compensation of a public officer during his term of office prevents payment of compensation to one who, although taking office after the enactment of the statute providing compensation, is serving out the unexpired term of his predecessor who had been elected to office before the enactment of the statute.

            An earlier case wasState ex rel. Hovey v. Clausen, 117 Wash. 475, which held that the term belongs to the office and not to the officer; that the appointee to fill the vacancy does not take a new term, but part of that enjoyed by his predecessor, and that the salary is incident of the term which continues for the statutory term regardless of its incumbent.

            Our conclusion is that under the decisions in State ex rel. Wyrick v. Ritzville, supra, andState ex rel. Hovey v. Clausen, supra, the justice of the peace would not be entitled to an increase in salary by reason of resigning and accepting appointment to the same office.

            Although your letter does not so inform us, we presume that an official determination was made that the population of the city had increased to over five thousand inhabitants.  Under the rule established in State ex rel. Williams v. Brooks, 58 Wash. 648, and State ex rel. Elwood v. Lovering, 78 Wash. 624, there must be an official determination of the fact that the city's population had increased to more than five thousand inhabitants.  The fact that the population had so increased would not by itself operate to substitute the salaried office for the two fee offices.

            It is not difficult to understand the dilemma of the officer, and we also understand that he has no desire to violate the purpose or spirit of the constitutional prohibition but is endeavoring to find a legal solution of his problem.  Unfortunately there appears to be no solution and the justice of peace is precluded from any increase in salary during his term of office.

Very truly yours,

SMITH TROY
Attorney General

JUNE FOWLES
Assistant Attorney General

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