Oregon Advisory Opinions March 06, 1952: OAG 52-26 (March 6, 1952)

Oregon Attorney General Opinions

1952.

OAG 52-26.

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369

Gentlemen: Election judges and clerks are public officers, authorized to function within the respective election precincts in which they are appointed. Their duties and responsibilities are restricted to a single service and are discharged, under ordinary circumstances, not more than twice during the two years of their term. See §§ 81-202 and 81-203, O.C.L.A. Their statutory compensation, authorized by § 81-205, O.C.L.A., as amended by § 1, chapter 228, Oregon Laws 1951, is not more than 75 cents per hour "and not less than $4 per election, while holding elections".

Compensation paid to members of an election board for their services may be termed "fees" within the meaning of that word as applied by the courts to "compensation paid for particular acts or services". If any such officer fails to perform his duties, he can not collect the compensation prescribed, but it is payable to the substitute chosen by the remainder of the election board to act in his stead. See §§ 81-1602 and 81-1603, O.C.L.A.

In Landis v. Lincoln County, 31 Or. 424, 426, the court thus characterized "fees":

"* * * By the ordinary acceptation of the term 'fees,' as heretofore and now used in the statute, we understand it to signify compensation or remuneration for particular acts or services rendered by public officers in the line of their duties, to be paid by the parties, whether persons or municipalities, obtaining the benefit of the acts, or receiving the services, or at whose instance they were performed ( Musser v. Good, 11 Serg. & R. 247; Tillman v. Wood, 58 Ala. 578), while the term 'salary' denotes a recompense or consideration to be paid a public officer for continuous, as contradistinguished from particular, services, and may be denominated 'annual or periodical wages or pay' Cowdin v. Huff, 10 Ind. 83; Black. Law Dictionary). Lexicographers and some authorities class 'salary' and 'wages' as synonymous (see Webster, and Rapalje & Lawrence's Law Dictionary, and Commonwealth v. Butler, 99 Pa. St. 535); but not so with the terms 'salary' and 'fees,' as they appear generally to be distinguished very much as is indicated above. * * * The term 'fees' is not so inflexible as that it may not have been used in the sense of 'salary' or 'wages.' * * *"

And in Burrows v. Balfour, 39 Or. 488, 493, the court applied the term "fees" to "both mileage and per diem". One section of the law therein concerned authorized the payment of witness fees "and mileage". Another section of the law provided for "double fees". The court held that such provision required the payment of double witness fees and double mileage, so that the word "fees" covered the entire compensation of witnesses. This has become the established rule for interpreting the questioned provision: Ogilvie v. Stackland, 92 Or. 352, 359, 179 P. 669; Brown v. McCloud, 96 Or. 549, 554, 190 P. 578.

The United States Supreme Court in Benedict v. United States, 176 U.S. 357, 361, 44 L. Ed. 503, 504, in distinguishing between fees and salary made the following observation (citing in support thereof Landis v. Lincoln County, supra):

"* * * The word 'salary' may be defined generally as a fixed annual or periodical payment for services, depending upon the time, and not upon the amount, of services rendered. * * *"

The compensation of election clerks and judges can not be termed "salary" as so defined, because it is not fixed, and the amount thereof does depend upon the amount of service rendered. Moreover, it is not paid for continuous service, which the court in the Landis case viewed as characteristic of salary. In this connection, see also vol. 16, Words and Phrases, pages 311, 313.

It is our opinion that judges and clerks of election are compensated "on a fee basis". Consequently such officers are not to be included in any agreement for social security coverage. Not only are they excluded by subdivision (a), section 5, Article I, of the agreement between the state and the federal security administrator, but if considered as employed "on a retainer basis", they are similarly excluded by subdivision (e) of the same section.