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AGO 1950 No. 387 - November 20, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington


The mayor of a fourth class town may not charge rental for use of a machine by the town in excess of $50.00 for any one month.  Any excess charge is void and where wilfully incurred and charged, subjects the officer to removal from office and conviction for a misdemeanor.

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                                                               November 20, 1950

Honorable R. F. Buck
Prosecuting Attorney
San Juan County
Friday Harbor, Washington                                                                                                              Cite as:  AGO 49-51 No. 387

Dear Sir:

            We acknowledge receipt of your request for an opinion from this office in which you ask, through a letter which you enclose from the city attorney of the town of Friday Harbor, whether or not the mayor of such town who owns a valuable jack hammer would be violating section 2, chapter 57, Laws of 1941 (§ 9194 Rem. Supp. 1941) by renting said machine to the town if the rental in a calendar month exceeded the sum of $50.00.

            Our conclusion is that, when said rental exceeds $50.00 in any one month, the excess charge would be violative of the act and void; and where this wilfully occurred, said officer, owner of the machine, would be subject to removal from office as well as to prosecution for a misdemeanor.


            Section 2, chapter 57, Laws of 1941 (§ 9194 Rem. Supp. 1941) as enacted by the legislature is plain on its face, is not subject to statutory construction and establishes a definite maximum beyond which an officer of a fourth class town may not charge the town, either for contract work or labor, or for furnishing of supplies for the use of said town.  Where the excess over the statutory  [[Orig. Op. Page 2]] limit inadvertently occurs the excess is void and the town may not pay it.  In addition, where evidence shows that the excess was wilfully incurred, the further statutory penalties follow.

            We are cognizant of the fact that no other such machine is available to the town and that in this instance, as well as in many others, especially where an emergency exists, hardships both upon officers of the town as well as upon the town itself are likely to occur.  But the legislature, whose province it is, has established the maximum of $50.00, and if it is wrong or is not realistic or practicable, the remedy lies in legislative enactment rather than in statutory construction contrary to the express language of the statute.

Very truly yours,

Attorney General

Assistant Attorney General

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