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AGO 1959 No. 39 - May 26, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

INITIATIVE AND REFERENDUM - REIMBURSEMENT OF CIVIL SERVICE COMMISSION FOR EXPENSES AND MILEAGE INCURRED IN THE PERFORMANCE OF ITS DUTIES UNDER INITIATIVE NO. 23.

(1) The commissioners of the Civil Service Commission established by Initiative No. 23 can be reimbursed for expenses and mileage incurred by them in the performance of their duties.

(2) The Board of County Commissioners cannot appropriate funds to the Civil Service Commission in excess of the amount provided for in section 21 of the initiative.

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

                                                                   May 26, 1959

Honorable Jay Roy Jones
Prosecuting Attorney
Pend Oreille County
Newport, Washington                                                                                             Cite as:  AGO 59-60 No. 39

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions on Initiative No. 23, which relates to Sheriffs' Employees Civil Service.  We paraphrase your questions as follows:

            (1) Are the commissioners of the Civil Service Commission established by Initiative No. 23 entitled to be reimbursed for expenses and mileage incurred by them in the performance of their duties?

            (2) May the Board of County Commissioners appropriate funds to the Civil Service Commission established by Initiative No. 23 in excess of the amount provided for in § 21 of the initiative?

            We answer question one in the affirmative and question two in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question one:  Section 3, Initiative No. 23, expressly provides that the members of the commission shall serve without compensation but the initiative contains no provision regarding whether the commissioners shall be reimbursed for expenses and mileage.

            It is a general rule that in the absence of statutory authorization an officer is not entitled to reimbursement for expenses incurred by him in the performance of his official duties.  20 C.J.S. 941, Counties, § 128.  Since the initiative makes no provision in this regard we must look elsewhere to see if there are statutes inpari materia providing such statutory authority.

            "Statutes inpari materia must be construed together.  Statutes inpari materia are those which relate to the same person or thing, or the same class of persons or things; and in construing a statute, or statutes, all acts relating to the same subject matter or having the same purpose, should be read in connection therewith as together constituting one law.  The object of the rule is to ascertain and carry into effect the intent of the legislature, and it proceeds upon the supposition that the several statutes having to do with related subject matters were governed by one spirit or policy, and were intended to be consistent and harmonious in their several parts and provisions. . . ."  State v. Houck, 32 Wn. (2d) 681, 684, 203 P. (2d) 693 (1949).

            Section 1, chapter 200, Laws of 1949 (RCW 36.17.030) provides in part:

            "All county officers shall be entitled to their necessary reasonable traveling expenses in the performance of their official duties, bills therefor to be audited by the County Commissioners:  Provided, That when using their own cars, they shall be allowed not to exceed eight cents per mile for each mile of necessary travel. . . ."  (Emphasis supplied.)

            In the case ofState ex rel. Richardson v. Clark County, 186 Wash. 79, 56 P. (2d) 1023 (1936), the court interpreted a statute analogous to and the progenitor of that last quoted.  Therein the court ruled that the phrase "all county officers" included not only the elective county officers mentioned previously in the same section but also anappointed county officer not expressly mentioned, the county probation officer.

             [[Orig. Op. Page 3]]

            There remains then the question of whether or not the commissioners described in Initiative No. 23 arecounty officers, thereby coming within the purview of § 1, chapter 200, Laws of 1949, and RCW 36.17.030.

            It is basic that the only object of statutory construction is to ascertain and give effect to the intention of the lawmakers.  Cory v. Nethery, 19 Wn. (2d) 326, 142 P. (2d) 488 (1943).  Likewise, it is fundamental that legislative intention is to be determined where possible from reading the act itself, construing terms and provisions according to their ordinary meaning and giving consideration to the purposes and objects sought to be accomplished.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1957); State ex rel. State Ret. Bd. v. Yelle, 31 Wn. (2d) 87, 195 P. (2d) 646; 201 P. (2d) 172 (1948).  With these principles in mind we proceed to consider the terms and provisions of the initiative.

            In the first instance we think the use of the term "commissioner" is in itself significant.  Ordinarily that term denotes an officer charged with the administration of laws relating to a particular subject.  See Black's Law Dictionary (4th ed.) p. 340.

            In addition, it should be noted that the initiative expressly refers to the position of "commissioner" as an "office."  Section 3, Initiative No. 23, provides in part:

            ". . . The term of office of the commissioners shall be six years, . . . Any member of the commission may be removed from office for . . . malfeasance inoffice, . . ." (Emphasis supplied.)

            The factors just considered indicate that the lawmakers intended to regard the "commissioners" as "officers."  But our decision need not rest on this basis alone.  Our court has recognized certain fundamental principles and tests which serve as guides for determining whether or not one is a public officer.  InState ex rel. Brown v. Blew, 20 Wn. (2d) 47, 50, 145 P. (2d) 554 (1944), our court declared:

            "'"Because of the variety of meanings or shades of meaning in which the terms 'office' and 'officer' may be employed, in determining whether or not a given employment is an office within the meaning of a particular statute or other written law, each case must be determined by a consideration of the particular facts and circumstances involved, and of the intention and subject matter of the enactment.  The  [[Orig. Op. Page 4]] nature of the duties, the particular method in which they are to be performed, the end to be attained, the depositary of the power conferred, and the whole surroundings, must all be considered when the question as to whether a position is a public office or not is to be solved.

            "'". . . The distinguishing characteristic of a public officer is, that the incumbent, in an independent capacity, is clothed with some part of the sovereignty of the state, to be exercised in the interest of the public as required by law."'

            "InState ex rel. McIntosh v. Hutchinson, supra, after referring to certain cases, we said, p. 63:

            "'A leading case on the subject is that of State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411, 53 A.L.R. 583.  Most of the authorities bearing upon the subject are there cited and analyzed and the Montana court said:

            "'"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature:  (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.  In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority."'"

             [[Orig. Op. Page 5]]

            There are then five elements by which we may determine whether or not the "commissioners" are "officers."  Considering the initiative in this regard we find:

            (1) Section 3, Initiative No. 23, expressly creates a civil service commission composed of three commissioners.  The initiative, a law enacted by a vote of the people is as much a legislative act as if passed by the legislature itself.  SeeLove v. King County, 181 Wash. 462, 44 P. (2d) 175 (1935).  Thereby the position of "commissioner" is created by legislative authority.

            (2) Initiative No. 23 provides for commissioners in the various counties to aid in the selection of deputies and other employees in the sheriffs' offices.

            The commission is expressly empowered to formulate and to give tests to determine qualifications of persons seeking employment in the sheriff's office.  Initiative No. 23, § 6 (6).  The commission is further empowered to make rules and regulations providing in detail "the manner in which examinations may be held, and appointments, promotions, transfers, reinstatements, demotions, suspensions, and discharges shall be made, . . ."

            The main consideration in the selection of public officers and employees is the public welfare.  10 Am.Jur. 923, Civil Service, § 4.  Prescribing police power.  SeeSurry v. Seattle, 14 Wn. (2d) 350, 128 P. (2d) 322 qualifications for public officers and employees is an exercise of the (1942).  The police power is an attribute of sovereignty.  SeeMcDermott v. State, 197 Wash. 79, 84 P. (2d) 372 (1938).  Thereby, we think it clear that the commissioners are possessed with a delegation of a portion of the sovereign power of government.

            (3), (4), (5) The powers and duties of the commission are plainly set forth in the initiative; it is equally clear that such duties are to be performed independently and without control; and, it is likewise obvious that the commission is established as a permanent entity with continuous duties; consequently, we think elaboration on these three elements unnecessary.

            From the terms used in the initiative and the foregoing application of principles and tests recognized by the court for determining whether or not one is a public officer, we are satisfied that the commissioners are officers.  Since the commissioners are to perform their duties in and for the county in which the commission is established and since the various  [[Orig. Op. Page 6]] commissions are by virtue of § 21 of the initiative supported by county funds, we think it evident that said commissioners are county officers.

            Accordingly, it is our opinion that the commissioners are within the purview of § 1, chapter 200, Laws of 1949, and RCW 36.17.030 and thereby are entitled to the expenses and mileage provided therein.

            Question two:  In your second question you ask whether or not the county may provide to the commission funds in excess of the amount prescribed in § 21 of the initiative.  You have advised us that your question arises because the sum derived from application of the formula prescribed in § 21 is, in your county, only $32.50.

            Section 21, Initiative No. 23, provides:

            "The board of county commissioners of each county may provide in the county budget for each fiscal year a sum equal to one half of one percent of the preceding year's total payroll of those included under the jurisdiction and scope of this act.  The funds so provided shall be used for the support of the commission.  Any part of the funds so provided and not expended for the support of the commission during the fiscal year shall be placed in the general fund of the county, or counties according to the ratio of contribution, on the first day of January following the close of such fiscal year."  (Emphasis supplied.)

            As stated previously, the sole purpose of construing statutes is the determination of legislative intent.  What then was intended by expressly providing in § 21 a formula for determining the amount of funds to be provided for support of the commission?

            The court has set forth rules to aid in determining said intent; the following are pertinent:

            (1) The expression of one thing implies the exclusion of another under the maxim"expressio unius est exclusio alterius."  DeGrief v. Seattle, 50 Wn. (2d) 1, 297 P. (2d) 940 (1956);Bradley v. Department of Labor and Industries, 52 Wn. (2d) 780, 329 P. (2d) 196 (1958).

            (2) A statute should be construed so that no clause, sentence or word shall be held superfluous, void or insignificant.  DeGrief v. Seattle, supra; Public Hospital District v. Taxpayers, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954).

             [[Orig. Op. Page 7]]

            Applying these principles of statutory construction, we are constrained to conclude that by expressly mentioning in § 21 of the initiative the amount which the Board of County Commissioners may provide the lawmakers intended that no more could be provided.

            While it may be true that the use of the word "may" indicates that § 21 was intended to be directory or permissive, rather than mandatory, even so, the effect of this would be only that the Board of County Commissioners would not be required to appropriate the total amount provided by the section.

            We recognize that in the instant case our conclusion may well impose some hardship, but to conclude otherwise would render § 21 utterly meaningless.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP R. MEADE
Assistant Attorney General

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