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AGO 1956 No. 181 - January 03, 1956
AGO Opinion Header Image
Don Eastvold | 1953-1956 | Attorney General of Washington

COUNTY TAX TITLE LANDS, RESALE OF ‑- POWERS OF COUNTY COMMISSIONERS ‑- SUBDIVISION OF TAX TITLE LANDS

Under § 3, chapter 172, Laws of 1945 (RCW 36.34.010) county commissioners are expressly authorized to direct the resale of tax title land in parcels of a size less than that in which it was acquired.

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                                                                  January 3, 1956

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County Court House
Everett, Washington                                                                                                              Cite as:  AGO 55-57 No. 181


Attention:  !ttMr. John N. Leavitt

            Deputy

Dear Sir:

            You have requested our opinion upon the following question:

            With respect to the resale of tax title property held by a county, may the county subdivide such property into parcels of a size less than that in which it was acquired?

            Your question is answered in the affirmative.

                                                                     ANALYSIS

            InSasse v. King County, 196 Wash. 242, the court said at page 249:

            "When a county purchases land at a general tax foreclosure sale, for want of other purchasers, the county takes and holds the land, not in its proprietary capacity, but in trust for the state and the various taxing municipalities within which the  [[Orig. Op. Page 2]] land lies.  Gustaveson v. Dwyer, 78 Wash. 336, 139 Pac. 194;Shelton v. Klickitat County, 152 Wash. 193, 277 Pac. 839.

            "A resale of the land by the county is but a part of the statutory tax collecting process, which is not complete until such resale is finally made by the county, to the end that the proceeds thereof shall be justly apportioned to the various funds entitled thereto.  Shelton v. Klickitat County, 152 Wash. 193, 277 Pac. 839.  See alsoTacoma v. Fletcher Realty Co., 150 Wash. 33, 272 Pac. 43, andWilson v. Salt Lake County Corp., 57 Utah 274, 194 Pac. 125."

            The court also said at 196 Wash. 247:

            "Boards of county commissioners have only such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of the state, * * *"

            With these basic principles in mind, we proceed to a determination of whether the legislature has authorized the county to dispose of its tax title land by subdividing a given parcel thereof into smaller units where such a procedure, in the judgment of the county commissioners, will be to the best advantage of the county and its taxing units.

            RCW 84.64.270 provides in part:

            "Real property acquired by any county by foreclosure of delinquent taxes may be sold by order of the board of county commissioners of the county, when in the judgment of the members of the board it is for the best interests of the county to do so.  When the board desires to sell any such property it may, if deemed advantageous to the county, combine several lots and tracts in one or more units,  [[Orig. Op. Page 3]] and reserve from sale coal, oil, gas, gravel, minerals, ores, fossils, timber, or other resources on or in the lands, and the right to mine for and remove the same.  * * *"

            This section contains express authority for the resale of tax title property.  Furthermore, it expressly grants to the county commissioners the power to combine given lots and tracts into larger units for resale, the legislative intent apparently being to facilitate the process of reserving various profits a prendre in favor of the county.  However, there is here no express power granted to subdivide a given piece of tax title real property into lesser units, either to facilitate the making of reservations or for any other purpose.  Inasmuch as the legislature did specifically authorize a combination of lots and tracts, we are compelled to conclude that the power to subdivide may not fairly or necessarily be implied from the express authorization to accomplish the very opposite result, a combination.

            In reaching the conclusion that RCW 84.64.270 does not empower the county to subdivide tax title lands to facilitate resale, we hasten to limit that conclusion to the statutory provision cited.

            It appears, however, that RCW 84.64.270 does not constitute the sole authority for the resale by a county of tax title lands, although it does deal with such lands to the exclusion of lands held by a county in its proprietary capacity.  A wider grant of authority is contained in § 3, chapter 172, Laws of 1945, which states in part:

            "Whenever it shall appear to the Board of County Commissioners of any county in this state that it is for the best interests of such county and the taxing districts and the people thereof that any part or parcel, or portion of such part or parcel, of the property, whether real, personal, or mixed, belonging to said county,including tax title land, should be sold, it shall be the duty of such Board, and they are hereby authorized and empowered, to sell and convey such property, under the limitations and restrictions and in the manner hereinafter provided.  * * *"  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            The above statute is codified as RCW 36.34.010.  However, the codifier omitted the phrase "including tax title land".

            We believe the statute quoted constitutes express authority for the county commissioners to subdivide county land, including tax title lands, into portions of a size less than that in which it was acquired in order to facilitate resale of the property.  An examination of the entire statute shows that the "limitations and restrictions" referred to concern only procedural matters respecting the mechanics of making the sale.  There is no statutory limitation whatever restricting the sale of a "portion" of the county lands, "including tax title lands".  Thus, as a matter of statutory interpretation alone, we must conclude that a subdivision of tax title lands is expressly authorized by the legislature.

            We should be content to let the matter rest at this point were it not for the decision of our court in the case of State ex rel. Lockwood v. Glover, 20 Wn. (2d) 124, 146 P. (2d) 188 (1944), which may appear, at least, to militate against the result we have reached.  We are convinced, however, that upon analysis, the Lockwood decision does not require a change in our conclusion.

            In order to understand the rationale of the Lockwood opinion, it is necessary to give some attention to the statutory antecedents of the two code sections we have discussed heretofore, i.e., RCW 84.64.270, relating to sale of tax title lands only, and RCW 36.34.010, relating, at least in terms of the session law upon which the section is based, toall county lands, both proprietary and tax title.  Prior to the 1943 meeting of the legislature, the counterparts of these two code sections respectively were Rem. Rev. Stat. Sup. § 11294, (§ 1, chapter 68, Laws of 1937) and Rem. Rev. Stat. § 4007 (§ 1, chapter 76, Laws of 1891).

            Rem. Rev. Stat. Sup. § 11294 at that time provided:

            "Real property hereafter or heretofore acquired by the several counties of the State of Washington for taxes shall be subject to sale by order of the board of county commissioners of the several counties of this state at any time after the counties shall have  [[Orig. Op. Page 5]] received a deed therefor, when in the judgment of the board of county commissioners they deem it for the best interests of the county to sell the same.  When the board of county commissioners desires to sell any property so acquired, it may, if deemed advantageous to the county, combine any or all of the several lots and tracts of land so to be sold in one or more units, and it shall then enter an order on its records fixing the unit or units in which the property shall be sold and the minimum price for each of such units, and directing the county treasurer to sell such property in the unit or units and at not less than the price or prices so fixed by said board:  * * *"

            Rem. Rev. Stat. § 4007 at the same time provided:

            "Whenever it shall appear to the board of county commissioners of any county in this state that it is for the best interests of such county and the people thereof that any part or parcel, or portion of such part or parcel, of the property, whether real, personal, or mixed, belonging to said county should be sold, it shall be the duty of such board, and they are hereby authorized and empowered, to sell and convey such property, under the limitations and restrictions and in the manner hereinafter provided."

            Thus, one could conclude without hesitation that Rem. Rev. Stat. Sup. § 11294 applied to the resale of tax title lands, while Rem. Rev. Stat. § 4007 applied to the sale of county lands held in a proprietary capacity.  Moreover, counties were empowered to sell only the fee interest in either type of county lands.  Obviously there was no conflict between these statutory provisions at all.  For the sale of tax title land, the county treasurer would make the sale.  For the sale of county lands held in a proprietary capacity, the sale would be conducted by the sheriff.  See Rem. Rev. Stat. § 4010.

            An obvious problem arose when the legislature enacted chapter 19, Laws of 1943, which amended Rem. Rev. Stat. § 4007.  This amendment inserted the phrase "including tax title land", immediately following the words  [[Orig. Op. Page 6]] "property, whether real, personal, or mixed, belonging to said county," Thus, the resale of county tax title lands was first introduced into a statutory section heretofore believed to apply only to proprietary lands.  As we have noted, the phrase "including tax title land" remains in this section, though this crucial language was omitted by the codifier from RCW 36.34.010.

            The problem, of course, was in reconciling the two statutes, each of which applied by its terms to the sale of tax title lands.  Where Rem. Rev. Stat. Sup. § 11294 directed on the one hand that the treasurer sell such lands, Rem. Rev. Stat. § 4007, as amended, directed that the sale be made by the sheriff.

            Confronted with this statutory conflict our court in 1944 was called upon in theLockwood case to decide which county officer should sell tax title lands.  The court clearly indicated its desire to reach a result that would harmonize the two statutes, remove the conflict, and thus avoid the conclusion that Rem. Rev. Stat. Sup. § 11294 had been impliedly repealed by the recent amendment to Rem. Rev. Stat. § 4007.  Such a result would permit both statutes to stand as alternatives.

            The court discovered a basis for such a reconciliation.  The 1943 amendment had also introduced a new provision permitting the sale of timber rights and other profitsa prendre.  This provision became a part of Rem. Rev. Stat. § 4007.  It constituted a new and an additional grant of power respecting the county's authority to sell its land.

            If it could be reasoned that the phrase "including tax title land" was applicable under Rem. Rev. Stat. § 4007 only when the commissioners desired to exercise the newly granted power to reserve profits in tax title lands, then a conflict could be avoided; both sections could stand together under such an interpretation.  The court adopted this reasoning saying at 20 Wn. (2d) 128:

            "In the present case, it is possible for both Rem. Rev. Stat. (Sup.), § 11294, and Rem. Rev. Stat., § 4007, as amended by the Laws of 1943, chapter 19, to have concurrent operation without conflict.  Thus, in the case  [[Orig. Op. Page 7]] where the county desires to sell all rights which it holds in tax title land, the sale should be held under Rem. Rev. Stat. (Sup.), § 11294.  In a case where the county desires to sell less than a fee to tax title land, such as the timber only, or where it desires to sell property held in its proprietary capacity, such sales should be held in accordance with the provisions of Rem. Rev. Stat., § 4007, as now amended.  The additional grant of power in the latter statute does not necessarily create an inconsistency.  Since the statutes can be harmonized, it is our duty to do so."  (Emphasis supplied)

            Subsequent to theLockwood decision, however, both the statutory sections in question have received further consideration from the legislature.  The following amendments were passed, resulting in the present law as set out in the beginning of this analysis.

            (1) Rem. Rev. Stat. Sup. § 11294 (RCW 84.64.270) was amended to grant the county commissioners power to reserve various profits a prendre.  Section 1, chapter 172, Laws of 1945.  This amendment alone has the effect of destroying the conflict which gave rise to theLockwood rationale.

            (2) Rem. Rev. Stat. § 4007 (RCW 36.34.010) was amended to dispense with the requirement of notice of sale in an instance irrelevant to the matter under consideration here.  Section 3, chapter 172, Laws of 1945.  It should be emphasized however that the legislature did not remove the phrase "including tax title land" from the section even though the power to reserve profits was added to Rem. Rev. Stat. Sup. § 11294.  It may be reasoned, therefore, that had the language of the Lockwood case been regarded as setting forth a rule of general application rather than a mere rationale to reach a result permitting the resolution of a conflict in the statutory provisions regarding sales of tax title property, the legislature would have removed the "including tax title land" phrase from Rem. Rev. Stat. § 4007.  This would follow, because the function of the inclusionary phrase under the Lockwood rationale had been destroyed by the amendment adding the power to make reservations under Rem. Rev. Stat. Sup. § 11294.

             [[Orig. Op. Page 8]]

            (3) Rem. Sup. 1945, § 4014-7 (RCW 36.34.080) was added by § 7, chapter 254, Laws of 1945.  This provision designated the county treasurer as the proper party to conduct "all sales of county property".  By the same act, the legislature repealed Rem. Rev. Stat. § 4010 which had assigned this function to the sheriff.

            We would conclude by observing that at the present time there exists no conflict whatever between the two statutory sections.  Both relate to tax title land by their terms.  Both permit reservations of profits a prendre.  Both designate the treasurer as the party to conduct the sale.

            The only difference now apparent is that RCW 84.64.270 permits the commissioners tocombine lots, while RCW 36.34.010 (as it should read) permits the sale of a "portion" of a part or parcel, that is, the subdivision of tax title lands to facilitate resale.  Applying the rationale of the Lockwood case, we reach the position that no conflict exists.  Thus, when a subdivision is desirable, the commissioners are authorized to subdivide under RCW 36.34.010 (as corrected).  When a combination is desired to facilitate the reservation of profits, the commissioners are permitted to combine lots under RCW 84.64.270.  We believe that any other conclusion would result in reading out of § 3, chapter 172, Laws of 1945 (upon which RCW 36.34.010 is based) the phrase "including tax title land."  Certainly there is nothing in theLockwood opinion indicating that the court intended to extirpate the inclusionary phrase, and we are therefore convinced that, under the present state of the statutory law, the opinion does not militate against our conclusion that, under RCW 36.34.010 (as corrected), the county commissioners may subdivide tax title land incident to resale.

Very truly yours,

DON EASTVOLD
Attorney General


J. CALVIN SIMPSON
Assistant Attorney General

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