AGO 1962 No. 167 - Sep 20 1962
COURTS ‑- JUSTICE OF THE PEACE ‑- CITIES WITH POPULATION OF OVER 5,000 ‑- SALARY ‑- REDUCTION ‑- COUNTY COMMISSIONERS.
(1) After the county commissioners have raised the salary of a justice of the peace to $3,600 per year in cities with a population of over 5,000 under RCW 3.16.002, they can thereafter reduce said salary under certain conditions.
(2 (a)) The salary of a justice of the peace may not be increased or decreased during his term of office.
(2 (b) ‑ 2 (c)) The salary may be increased or decreased at any time prior to the commencement of the term notwithstanding the fact that a filing fee may have been paid on the basis of the existing salary for the office.
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September 20, 1962
Honorable John Panesko
Cite as: AGO 61-62 No. 167
By letter previously acknowledged you have requested the opinion of this office on questions concerning the salary of justices of the peace in cities with a population of over 5,000, which we paraphrase as follows:
1. If the county commissioners in the exercise of their power under RCW 3.16.002 have raised the salary of a justice of the peace to $3,600 per year, can they thereafter reduce the salary?
2. If the county commissioners can reduce the salary, can this be done:
(a) during the term of the justice of the peace,
(b) before the term has commenced, or
(c) before the term has commenced, but after a candidate has filed for office and paid the filing fee on the basis of the present salary?
[[Orig. Op. Page 2]]
We answer question 1 in the affirmative, question 2 (a) in the negative, and questions 2 (b) and 2 (c) in the affirmative.
In your letter you state:
"According to the statute, the salary of a Justice of the Peace in cities with a population of over 5,000 and under 20,000 is fixed at $2400.00 with the provision that the County Commissioners may increase the salary, but not to exceed $3600.00.
"If the County Commissioners have set a salary of $3600.00 for such a Justice of the Peace, can they thereafter lower the salary and, if so, how is this done, and when?
"Our immediate question is: If the Commissioners do have the right to reduce such a salary, could they do it now, after the candidates have filed for the position and paid the filing fee on the basis of the higher salary which now exists?
Since the statute to which you refer is apparently RCW 3.16.002, we assume that the county commissioners of Lewis county have not elected that the 1961 justice court law (Laws of 1961, chapter 299; chapters 3.30 through 3.74 RCW) be made applicable to that county. See, RCW 3.30.020.
RCW 3.16.002 states:
"The salaries of justices of the peace in cities having a population of five thousand but less than twenty thousand shall be two thousand four hundred dollars each per annum, and such justices of the peace may engage in private practice of law:Provided, That the county commissioners shall have the power to raise the salaries of such justices of the peace to an amount not to exceed three thousand six hundred dollars each per annum."
[[Orig. Op. Page 3]]
Article IV, § 10 of the Constitution of the State of Washington states:
". . . 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."
The same language was used in Amendment 28, approved in 1952.
In 1891, the legislature fixed the salaries of justices of the peace in third class cities having more than five thousand inhabitants at twelve hundred dollars per annum. Section 1, chapter 7, Laws of 1891. In 1897, the salary was again fixed at twelve hundred dollars per annum. Section 2, chapter 46, Laws of 1897. In 1951, the salary was raised to two thousand four hundred dollars per annum. Section 3, chapter 156, Laws of 1951. In 1953 the proviso was added giving the county commissioners ". . . the powerto raise the salaries of such justices of the peace to an amount not to exceed three thousand six hundred dollars each per annum." (Emphasis supplied.)
Did the legislature intend that if the salary of a justice of the peace once raised under authority of this last quoted proviso, then the county commissioners would not have the power thereafter to lower the salary to a sum not less than two thousand four hundred dollars? The Washington Supreme Court has not construed the proviso. We have found no helpful discussion of similar language in the decisions of other states.
The power given to the county commissioners to "raise" the salary of the justices may have been given for any of several reasons:
(1) To allow adjustments for local conditions in 1953. This would allow one change, necessarily a raise. Opposed to this theory is the fact that the statute does not limit action by the commissioners to any particular time. The statute is still in force.
(2) To allow adjustments for local conditions, such as population, as they change from time to time. If this is what the legislature had in mind it seems unreasonable that it would assume that every change would call for an increase in salary of the justices. It would be more reasonable to construe the proviso as allowing several changes in the salary of the justices, all "raises" with reference to the $2,400.00 figure, but not necessarily raises with reference to each other.
[[Orig. Op. Page 4]]
(3) To allow adjustments for general changes, such as inflation or deflation, without action by the legislature. This possible purpose of the proviso would call for the same construction as for theory (2).
Examined from this point of view, it seems that the statute would more nearly carry out the probable purposes of the legislature if it were construed to empower the county commissioners to adjust the salary of the justices of the peace to any level between $2400.00 and $3600.00 per annum.
This construction can be given to the statute without violence to the language "to raise." The statute states that the salary of the justices is to be $2400.00 per annum, and then permits the county commissioners to raise the salaries to not more than $3600.00. The action, if any, by the county commissioners would be by an appropriate ordinance. The power to enact an ordinance ordinarily carries with it by necessary implication the power to repeal it. See, 62 C.J.S., Municipal Corporations, § 435 (b) (1); 37 Am.Jur., Municipal Corporations, § 197. Cf. Great Northern Railway Co. v. Glover, 194 Wash. 146, 157, 77 P. (2d) 598 (1938). Thus an ordinance raising the salary of justices of the peace could be repealed, and the result would be that the justices' salary would be $2400.00, by the terms of RCW 3.16.002. The board of county commissioners could then, or at some later time, enact a new ordinance raising the salary of the justices to an amount not exceeding $3600.00 per annum. This construction of the statute is in accord with the general rule that statutes relating to the compensation of public officers must be strictly construed in favor of the government. Furnia v. Grays Harbor County, 158 Wash. 619, 621, 291 Pac. 1111 (1930);State ex rel. Matson v. O'Hern, et al., 104 Mont. 126, 65 P. (2d) 619 (1937); 3 Sutherland, Statutory Construction (3rd ed. Horack 1943) § 6603. The government and taxpayers benefit if the county may lower the salary when in the opinion of the board of county commissioners that action is called for.
Of course, the constitutional restrictions on changing the compensation of public officers, discussed below, must be considered in any application of the above discussion.
We answer question number 1 in the affirmative.
Question 2 (a):
Washington State Constitution, Article II, § 25 (Amendment 35) states:
[[Orig. Op. Page 5]]
"The legislature shall never grant any extra compensation to any public officer, agent, employee, 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. . . ." (Emphasis supplied.)
Justices of the peace are public officers. Everett v. Johnson, 37 Wn. (2d) 505, 508, 224 P. (2d) 617 (1950). Article II, § 25, limits not only the legislature, but all agencies of the government. Id. at 37 Wn. (2d) 510.
We therfore answer question 2 (a) in the negative. See, Opinion of the Attorney General to Honorable John Panesko, February 14, 1951.
Question 2 (b):
The following language was used by our court in State ex rel. Wyrick v. Ritzville, 16 Wn. (2d) 36, 41, 132 P. (2d) 737 (1942). The first paragraph is a quotation from State ex rel. Henneford v. Yelle, 12 Wn. (2d) 434, 121 P. (2d) 948 (1942):
"'Unless forbidden or restricted by constitution or statute, the compensation of any officer or employee of the state could be increased or diminished during his term of office or period of employment. It cannot be gainsaid that the legislature may fix the salary of a state officer in the first instance and has the right to change the salary or compensation from time to timewhen its application is made to officials whose terms of office commence subsequent to the effective date of the statute.' (Italics ours.)
"This language is equally applicable to situations involving municipal officers and the salaries or compensation allowed them for their official services."
The same rule would apply to justices of the peace. See, 43 Am.Jur., Public Officers, § 348; 30A Am. Jur., Judges, § 67.
[[Orig. Op. Page 6]]
Accordingly, we answer question 2 (b) in the affirmative.
Question 2 (c):
This question must be answered the same as question 2 (b) unless payment of a filing fee based on the present compensation requires a different result.
It has been held that a term of office does not "commence" for purposes of the constitutional limitation on changing salaries until at least the time of the general election, even though in Texas the only real contest was in the primary election. Carver v. Wheeler County, 200 S.W. 537 (Texas Civ. App. 1918). If winning a Texas primary does not advance one's term of office for this purpose, plainly paying a filing fee does not.
Section 2, chapter 82, Laws of 1909 (cf. RCW 29.18.050) states:
"At least thirty (30) days before the primary election any person who shall be eligible, who shall desire to become a candidate for nomination for any office, subject to this act, shall file in the proper office a declaration of candidacy accompanied by the fee provided for in this act, which fee shall be as follows: For any office with a salary or compensation attached, of one thousand dollars or less per annum, ten ($10) dollars; when such salary or compensation exceeds one thousand dollars per annum, an additional sum equal to one per cent, on such excess; and in case of any precinct office without salary, the filing fee shall be one ($1.00) dollar. . . ."
InState ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac. 728 (1908), the court, referring to a prior law requiring filing fees, spoke at page 520 of the purpose of filing fees:
". . . The right to exact a reasonable fee for the privilege of running for office may be sustained on the principle that fees in actions and proceedings in courts and for filing and recording papers are sustained, namely, that those who seek the benefit of a particular proceeding provided by law may be [[Orig. Op. Page 7]] compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentalities necessary to carry into effect the particular proceeding. In other words, the state but asks the candidates for office under a particular law to reimburse it for a part of the expenses it incurs in carrying that law into effect. . . ."
The filing fee must be paid at the time the declaration of candidacy is filed. The practicalities of the situation require that the amount of the fee be fixed according to the known facts at the time the candidate's declarations are filed. The salary of the office of justice of the peace can be changed except during a term of office. A candidate must be presumed to know this, and to take the risk that the position he has filed for may have a changed salary. He also risks paying a filing fee based on a salary which is later changed. For analysis of a comparable situation see Opinion of the Attorney General to Honorable Earl Coe, Secretary of State, June 15, 1950 [[Opinion No. 49-51-285]], a copy of which is attached. There this office concluded that filing fees should be based on salaries according to population as shown on preliminary United States census bulletins, although the salary might in fact be different because the final census certificates, not available at the time of filing, would control the salaries.
We answer question 2 (c) in the affirmative.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
MORTON M. TYTLER
Assistant Attorney General