State ex rel. Jaspers v. West

• Decision Date: 11 May 1942
• Docket Number: 28615.
• Citation: State ex rel. Jaspers v. West, 125 P.2d 694, 13 Wn.2d 514 (Wash. 1942)
• Parties: STATE ex rel. JASPERS et al. v. WEST, Treasurer of Wahkiakum County.
• Court: Washington Supreme Court

125 P.2d 694

13 Wn.2d 514

STATE ex rel. JASPERS et al. v. WEST, Treasurer of Wahkiakum County.

No. 28615.

Supreme Court of Washington

May 11, 1942

Department 2.

Mandamus by the State of Washington on the relation of Gus J. Jaspers and others against James G. West, Treasurer of Wahkiakum county, and as such ex-officio treasurer of Public Utility District No. 1 of Wahkiakum county to compel respondent to pay warrants issued for the compensation of Commissioners of Public Utility District No. 1 of Wahkiakum county. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Wahkiakum County; John I. O'Phelan judge.

Mitchell Doumit, of Cathlamet, for appellants.

J Bruce Polwarth, of Cathlamet, for respondent.

SIMPSON Justice.

This is an action commenced in the superior court of Wahkiakum county for a peremptory writ of mandamus to compel the treasurer of that county to pay warrants issued for the compensation of the commissioners of Public Utility District No. 1 of Wahkiakum county.

The superior court denied the relief asked for and dismissed the action. Plaintiffs have appealed.

The assignments of error are in denying their right to a peremptory writ and in dismissing the action.

The undisputed facts are that appellants were the commissioners of Public Utility District No. 1, a municipal corporation of Wahkiakum county, all having been elected for three-year terms, J. I. Maki in 1938, Gus J. Jaspers in 1938, and C. R Worrel in 1940.

The commissioners, upon a date not disclosed in the record, passed a resolution which reads as follows:

'* * * Public Utility District No. 1 of Wahkiakum County, Washington shall pay each of its commissioner-compensation at the rate of Six Dollars ($6.00) per day, or major part thereof, devoted to the business of the district, and for days upon which he attends meetings of the Commission of Public Utility District No. 1 of Wahkiakum County; or meetings attended by one or more commissioners of two or more districts called to consider business common to them.'

Claims and vouchers were then approved allowing each appellant, as commissioner, per diem compensation in the amount of six dollars for the session held May 5, 1941, and warrants were issued by the auditor of the district therefor. When the warrants were presented to the respondent he refused payment.

This action was then instituted, based upon § 6, chapter 245, Laws of 1941, Rem.Supp.1941, § 11616-5, which reads: 'Each public utility district may provide by resolution for the payment of compensation to each of its commissioners at a rate not exceeding $10.00 for each day or major part thereof devoted to the business of the district, and days upon which he attends meetings of the Commission of his own district or meetings attended by one or more Commissioners of two or more districts called to consider business common to them. Each Public Utility District Commissioner shall be reimbursed for reasonable expenses actually incurred in connection with such business and meetings, including his subsistence and lodging while away from his place of residence and mileage for use of personal automobile at the rate of five cents (5¢) per mile.'

The law, Rem.Rev.Stat. § 11612, in force at the time of the election of appellants, provided 'commissioners shall serve without compensation.'

The question presented in this case is whether, under the provisions of our state constitution, appellants could be allowed the compensation as provided for by the act of 1941.

Article II, § 25, of our state constitution 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.'

Article XI, § 8, provides: 'The salary of any county, city, town, or municipal officers 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.' It is appellants' contention that the type of compensation contemplated by the constitutional prohibitions is that type wherein the payment is dependent upon the time and not the amount of the services rendered, and that the per diem remuneration mentioned in the act is compensation for the amount of services rendered.

As a basis for their contention, they call our attention to the following cases. State ex rel. Thurston County v. Grimes, 7 Wash. 445, 35 P. 361; Cox v. Holmes, 14 Wash. 255, 44 P. 262; State ex rel. Stratton v. Maynard, 35 Wash. 168, 76 P. 937, and Gobrecht v. City of Cincinnati, 51 Ohio St. 68, 36 N.E. 782, 23 L.R.A. 609.

In the Grimes case, supra, this court held that the provision of Article II, § 25, did not apply to officers who receive specific fees for specific services. The decision cited with approval Board of Supervisors v. Hackett, 21 Wis. 613, 620, which held that a constitutional provision such as ours applies only to those officers who 'receive a fixed salary from the public treasury' of the state. It must be noted that neither in the Grimes case, nor any case subsequently decided, has this court followed the rule laid down in Wisconsin.

The decision in the Cox case, supra, interpreted Art. XI, § 8. In that case a county superintendent of schools sought to recover additional compensation of three dollars for each school visited, as provided by a legislative act which allowed three dollars for each school visited and ten cents per mile traveled in making the visits. This court affirmed the superior court in holding that the superintendent could recover the charges for travel but could not, under the constitutional provision, recover the per diem charge. In deciding the case, it was said:

'We think that the system which the framers of the constitution intended to provide by section 8, supra [Art. XI], was that of 'fixed' and established 'compensation by time' ( State [ex rel. Murphy] v. Barnes, , 3 So. 433), as distinguished from the system of specific fees for specific services which had theretofore prevailed; and, although the word 'salary' is sometimes used to denote compensation paid for a particular service, it was used in the constitution to mean 'a payment dependent on the time, and not on the amount of the service rendered' by the officer. Thompson v. Phillips, 12 Ohio St. 617.'

In the Stratton case, supra [35 Wash. 168, 76 P. 939], this court held that the attorney general could not obtain ten per cent of the amount of all judgments collected by legal process in addition to his annual salary. The percentage allowance had been provided by the territorial legislature. In passing upon the question presented, this court declared: 'So we think here that the whole idea of the Constitution was of compensation by salary, as distinguished from the fee system, which had theretofore prevailed, and that the word 'salary' was used in the Constitution to mean a payment dependent on the time and not upon the amount of the services rendered, or, in other words, when the salary for a year was prescribed, it was meant that the prescribed salary should be the compensation for a year.'

In Gobrecht v. City of Cincinnati, supra, it was held that an increase in the compensation of an officer increased during his term was not prohibited by a constitutional provision which stated: 'The general assembly, in cases not provided for in this constitution, shall fix the term of office, and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.'

The cases just cited with the exception of the Ohio case do not sustain the theory advanced by appellants. Our cases do no more than hold that fees charged for specific services do not come within the constitutional prohibition and may be changed at any time.

A person who accepts a public office does so with the full knowledge of the statute providing the compensation. If the law does not provide a compensation or make a definite provision that no compensation shall be allowed, the office is deemed to be an honorary one and the services gratuitous. 22 R.C.L. 532; Mechem on Public Officers, 577, § 856.

The statement that each commissioner shall be compensated 'at a rate not exceeding $10.00 for each day or major part thereof devoted to the business of the district' is synonymous with the statements in the constitutional provisions relative to extra compensation and salary. The terms salary and compensation import the idea of compensation for personal services and not the repayment of money necessarily expended in the discharge of the duties of the office. Throop on Public Officers, 428, § 441.

We are not inclined to adopt the theory advanced by appellants for the reason that the framers of the constitution had clearly in mind that compensation for services rendered must not be changed during the term regardless of whether the official is paid by the year, month, or upon a per diem basis. 22 R.C.L. 526, § 218.

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