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AGO 1963 No. 9 - January 31, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- CITIES ‑- THIRD CLASS ‑- CLERK AND ATTORNEY ‑- INCREASE OR DECREASE IN COMPENSATION WHEN OFFICES ARE MADE APPOINTIVE.

Where the offices of the city clerk and city attorney in a third class city have been made appointive by the city council, under the authority of RCW 35.24.020, the salary of the office holder may be increased or decreased after appointment.

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

                                                                 January 31, 1963

Honorable Avery Garrett
State Representative, 47th District
450 Langston Road
Renton, Washington

                                                                                                                  Cite as:  AGO 63-64 No. 9

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Where the offices of city clerk and city attorney in a third class city have been made appointive by the city council, under the authority of RCW 35.24.020, may the salary of the appointed city clerk and city attorney be increased or diminished in view of the prohibition found in RCW 35.24.090?

            We answer your question in the affirmative because the appointed officers have no fixed terms and serve only at the pleasure of the mayor.  However, for the reasons set forth in our analysis we suggest possible legislative clarification of RCW 35.24.090.

                                                                     ANALYSIS

            RCW 35.24.090 provides as follows:

            "The mayor and members of the city council may be reimbursed for actual expenses incurred in the discharge of their official duties, upon presentation of a claim therefor, after allowance and approval  [[Orig. Op. Page 2]] thereof, by resolution of the city council; and each city councilman may be paid for attending council meetings an amount not exceeding twenty dollars per meeting for not more than two such meetings each month, as the city council may fix by ordinance.

            "The city attorney, clerk, treasurer and health officer shallseverally receive at stated times a compensation to be fixed by ordinance by the city council, which compensation shall not be increased or diminishedafter their election (or appointment), or during theirseveral terms of office.

            "The mayor and other officers shall receive such compensation as may be fixed by the city council at the time the estimates are made as provided by law."  (Emphasis supplied.)

            InState ex rel. Ralston v. Department of Licenses, 160 Wash. Dec. 539 [[60 Wn.2d 535]], 544 (1962), our court said:

            " . . . we have here a situation necessitating a judicial evaluation of statutory language, and implementation thereof, in terms of purposeful legislative activity‑-a task which any reasonably prudent jurist would readily agree is usually most difficult.  The easy way would be to rely on an appropriate maxim of statutory construction, attach it to a handy, predetermined conclusion, and pronounce judgment.  It is at best a tenuous, difficult understanding to attempt to articulate the real basis of a decision; i.e., what the conglomerate mass activity of legislators did or did not accomplish and effectuate, in terms of legal sanctions, by enacting or formalizing given language into statutory law."  (Emphasis supplied.)

            In resolving your inquiry our first inclination was to simply cite the well-established rule of statutory construction ". . . that where the language of a statute is plain, free from ambiguity and devoid of uncertainty, there is no room for construction for the meaning will be determined from the wording of the statute itself, . . ." State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949), and conclude that since the clerk and city attorney are appointed  [[Orig. Op. Page 3]] by the mayor their salary may not be increased or decreased after their appointment because of the prohibition found in RCW 35.24.090,supra.

            However "handy" this rule may be in certain cases, it cannot be invoked in this instance because (1) we feel the statute is "open" to construction to determine whether the legislature intended the prohibition should apply to appointed offices with no fixed terms;1/ (2) to apply it to offices with other than fixed terms would defeat rather than give effect to the legislative intent which becomes very clear when the history of the legislation is considered.2/

             In Lynch v. Department of Labor and Industries, 19 Wn. (2d) 802, 809, 145 P. (2d) 265 (1944), our court stated:

            "It is a rule of statutory construction that resort may be had to the history of the passage of a law under consideration.  State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120; State ex rel. Northwest Airlines, Inc., v. Hoover, 200 Wash. 277, 93 P. (2d) 346;Shelton Hotel Co. v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478;Ayers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348; Crawford, Statutory Construction 383, § 216; 2 Sutherland, Statutory Construction (3d ed.) chapter 50, p. 481.

             [[Orig. Op. Page 4]]

            "In fact, from the record before this court, the 'legislative intent' becomes clearly evident from the history of the passage of the law under consideration, andto disregard that history would be to ignore the above expressed principle that legislative intent is the paramount factor in construing a law." (Emphasis supplied.)

            See also,Procter & Gamble Co. v. King County, 9 Wn. (2d) 655, 115 P. (2d) 962 (1941); and, for two of the more recent cases wherein the court examined the legislative history of an act in order to ascertain and thereby give effect to legislative intent, see Nostrand v. Balmer, 53 Wn. (2d) 460, 335 P. (2d) 10 (1959); State ex rel. Blume v. Yelle, 52 Wn. (2d) 158, 324 P. (2d) 247 (1958).

            We will now proceed to discuss the legislative history of RCW 35.24.090 and related statutory enactments:

            The 1915 legislature originated the present law, chapter 35 RCW, providing for the governmental organization of third class towns.  Chapter 184, Laws of 1915.  Section 3 of chapter 184, Laws of 1915, required that the offices of both the city attorney and city clerk be filled by the electorate of the third class town for four-year terms, and § 7, chapter 184, Laws of 1915, gave the power to the town to establish the salaries of those officers by ordinance with the stipulation thatsuch salaries could neither be increased or diminished after their election or during their term of office.

            The 1955 legislature amended the above statute granting the power for a third class town council to enact an ordinance empowering the mayor to appoint the city clerk and the city attorney, subject to confirmation by a majority of the city council.  Section 2, chapter 365, Laws of 1955.  However, the legislature did not amend § 7, chapter 184, Laws of 1915, providing that salaries of such officers could not be increased or diminished after their election or during their terms of office.  The 1955 amendment did provide that such appointed city clerk and city attorney would hold office at the pleasure of the mayor.  Therefore, since, when appointed, the city clerk and city attorney had no term of office nor were they elected, the prohibition of § 7, chapter 184, Laws of 1915, was inapplicable.  Cf. AGO 53-55 No. 199 [[to Prosecuting Attorney, Benton County on February 8, 1954]],Warnock v. Marysville, 17 Wn. (2d) 515, 520, 136 P. (2d) 188 (1943).

            The 1941 code reviser's committee, however, added to § 7, chapter 184, Laws of 1915, the words "(or appointment)" when placing it in RCW 35.24.090.  Such a revision was held to be of no effect in State ex rel. Kirschner v. Urquhart, 50 Wn. (2d) 131, 310 P. (2d)  [[Orig. Op. Page 5]] 261 (1957); and in Parosa v. Tacoma, 57 Wn. (2d) 409, 411, 414, 357 P. (2d) 873 (1960) and hence no problem then arose.

            In 1961 by the enactment of § 7, chapter 89, the legislature amended § 7, chapter 184, Laws of 1915 (as amended) to increase the compensation for councilmen fromfive to twenty dollars.  This was the only change intended to be made in the earlier law.  In order to demonstrate such intent it is only necessary to refer to § 7 of House Bill 72, (added by Senate amendment, Senate Journal 1961, 46th day, February 23, 1961, pp. 591-2) which reads as follows:

            "Sec. 7.  Section 7, chapter 184, Laws of 1915, as amended by section 1, chapter 115, Laws of 1941, and RCW 35.24.090 are each amended to read as follows:

            "The mayor and the members of the city council may be reimbursed for actual expenses incurred in the discharge of their official duties, upon presentation of a claim therefor, after allowance and approval thereof, by resolution of the city council; and each city councilman may be paid for attending council meetings an amount not exceeding ((five)) twenty dollars per meeting for not more than two such meetings each month, as the city council may fix by ordinance.

            "The city attorney, clerk, treasurer and health officer shall severally receive at stated times a compensation to be fixed by ordinance by the city council, which compensation shall not be increased or diminished after their election (or appointment), or during their several terms of office.

            "The mayor and other officers shall receive such compensation as may be fixed by the city council at the time the estimates are made as provided by law."

                        Adopted 2/24/61

            Rule 18, Joint Rules of the Senate and House of Representatives, 37th legislative session, required all amendatory bills to have the wordsunderlined therein which were amendatory of existing statutes.  See also Senate Rule 60; House Rule 85.

            Joint Rule 18 reads as follows:

            "Bills introduced in either house intended to amend existing statutesshall have the words which are amendatory to such existing statutes underlined.

             [[Orig. Op. Page 6]]

            Any matter to be deleted from the existing statutes shall be indicated by lining out such matter with a broken line and enclosing the lined out material within double parentheses, and no bill shall be printed or acted upon until the provisions of this rule shall have been complied with."  (Emphasis supplied.)

            In accordance with the requirement of Article II, § 37, of the State Constitution, the proposers of the Senate amendment to House Bill No. 72 attempted to set forth the entire section of the act intended to be amended.  And in accordance with the above quoted joint rule, the amendatory word "twenty" was underlined.

            Undoubtedly every legislator had his attention clearly and pointedly directed to the underlined word "twenty" which increased the compensation of city councilmen from five to twenty dollars per meeting.  Directing legislators' attention to amendatory words is the obvious purpose of the amendatory rule, i.e., Joint Rule 18.  The words "(or appointment)" however were not underlined when the amendment was offered; they were not underlined in the engrossed bill; and they are not italicized in the Senate Journal where the amendment is set forth.  Senate Journal,supra, at p. 592.  In fact those two words were left in parentheses as so placed by the Code Reviser in his attempt to restore the code to session law language.

            The words "(or appointment)" as added to § 7, chapter 184, Laws of 1915, as amended by the 1961 act, must be attributed to the clerical error of using thecode section language rather than the session law language.  It was a continuance of the error which was committed by the 1941 code reviser and, under the circumstances certainly cannot be considered as any indication on the part of the legislature to change the law.

            InState ex rel. School Dist. No. 102 v. Clausen, 116 Wash. 432, 436, 437, 199 Pac. 752 (1921), the court said:

            "Section 37, art. 2, of the constitution provides:  'No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length' . . .  In construing the amendment of 1919, it is manifest that the use or repetition therein of language found in the original act . . . was but a vehicle or means required by the constitution. . . . "

            At page 438 of its opinion the court quoted from McLaughlin v. Newark,  [[Orig. Op. Page 7]] 57 N.J.L. 298, as follows:

            By observing the constitutional form of amending a section of a statute the legislature does not express an intention then to enact the whole section as amended,but only an intention then to enact the change which is indicated."  (Emphasis supplied.)

            See also,Knowlton v. Mason County, 134 Wash. 255, 235 Pac. 33 (1925) to the same effect.

            Under the circumstance, we conclude that the words added to RCW 35.24.090,supra, "(or appointment)", by the 1941 code reviser must be eliminated or disregarded3/ in order to carry out the legislative intent.  This result is inescapable unless the legislative history be ignored and, as the court said in theLynch case, supra, at p. 809:

            ". . . to disregard that [legislative] history would be to ignore the above expressed principle that legislative intent is the paramount factor in construing a law."

             [[Orig. Op. Page 8]]

            Accordingly, it is the opinion of this office that when the city council of a third class city makes the offices of city clerk and city attorney appointive under RCW 35.24.020, the salaries of said offices may be increased or diminished by the properly constituted authority at any time while they hold office "at the pleasure of the mayor."

            Our construction of the statute is in accord with the rule often followed by our court that statutes should receive a sensible construction, such as will effect the legislative intention, and, if possible, so as to avoid an unjust orabsurd conclusion.4/   See,State v. Asotin County, 79 Wash. 634, 140 Pac. 914 (1914);In re Horse Heaven Irr. Dist., 11 Wn. (2d) 218, 118 P. (2d) 972 (1941);State v. Lake City Bowlers Club, 26 Wn. (2d) 292, 173 P. (2d) 783 (1946);State ex rel. Thorp v. Devin, 26 Wn. (2d) 333, 173 P. (2d) 994 (1946).

            We trust the foregoing will be of assistance to you.  In order to avoid any confusion in the future, we respectfully suggest that RCW 35.24.090,supra, be clarified.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DEAN A. FLOYD
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/While not controlling, it is interesting to note that the court said in State ex rel. Heffernan v. Hoquiam, 186 Wash. 50, 56, 56 P. (2d) 1012 (1936):

            "In the next place, even if we assume, for the sake of argument, that there was anoffice of captain of police, it was an office having no term.  It was, in any event, appointive merely, from which the incumbent thereof could be removed at any time by the mayor and council.  Rem. Rev. Stat., § 9065 [P.C. § 761].  The inhibition against the reduction of salaries of officers relates only to those having terms of office and not to those whose tenure is subject to the will and pleasure of the mayor and council."  (Single emphasis ours.)

2/It cannot be overlooked that our court has said that the primary rule in construing a statute is to ascertain and give effect to the intention of the legislature which enacted the statute.  Public Hospital District No. 2 v. Taxpayers, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954);Graffell v. Honeysuckle, supra;Lynch v. Dept. of Labor and Industries, 19 Wn. (2d) 802, 145 P. (2d) 265 (1944); AGO 59-60 No. 41 [[to Prosecuting Attorney, Pierce County on May 27, 1959]].

3/The following rule is found in 2 Sutherland, Statutory Construction, § 4926, p. 462:

            "A majority of the cases permit the elimination or disregarding of words in a statutein order to carry out the legislative intent.

            "As in all other cases, words may be eliminated only when such action isconsistent with the legislative intent.  Courts permit the elimination of words for one or more of the following reasons: where the word is found in the statute due to the inadvertence of the legislature or the reviser, or where it is necessary to give the act meaning, effect or intelligibility, or where it is apparent from the context of the act that the word is surplusage, or where the maintenance of the word would lead to an absurdity or irrationality, or where the use of the word was a mere inaccuracy, or clearly apparent mishap, or was obviously erroneously inserted, or where the use of the word is the result of atypographical or clerical error, or where it is necessary to avoid inconsistencies and to make the provisions of the act harmonize, or where the words of the statute fail to have any useful purpose or are entirely foreign to the subject matter of the enactment, or where it is apparent from the caption of the act or body of the bill that the word is surplusage."  (Emphasis supplied.)

            See also, 2 Sutherland,supra, § 4705 and AGO 59-60 No. 120 [[to Prosecuting Attorney, Kitsap County on May 31, 1960]]and cases cited therein.

4/Under RCW 3.62.050, supra, such cost is not to be included in calculating the total expenditures of justice courts for purposes of determining the "unreimbursed difference" to be borne by funds of each of the governmental units entitled to share in justice court receipts.

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