COUNTIES; POWERS, AGENCY; TAX TITLE SALES, TENANCY IN COMMON.
A county may not act as agent of a private individual to sell his interest at public auction in property which he and the county hold in common.
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February 26, 1953
Honorable James E. Duree
Pacific County Prosecuting Attorney
P.O. Box 552
Raymond, Washington Cite as: AGO 51-53 No. 483
You have requested our opinion whether it would be legal for Pacific County to sell its one‑third interest in certain tax title property at public auction and, as agent for the owner of the remaining interest in the same property, also sell his interest in the property.
We conclude that it would be improper for Pacific County to act as agent at a public auction sale for an individual who owns an interest in the property in common with the county which is selling its interest at the sale.
You relate that Pacific County owns a one‑third interest in some 192 lots situated within the county which originally had been purchased by two individuals, one holding a one‑third interest in the lots and the other holding a two-thirds interest in the lots. Because of failure to pay taxes, the county ultimately acquired the interest of the person originally holding the one‑third interest. Since acquisition by the county, timber has grown up on the lots until there is now about three and a half million board feet on the property. The individual owning the remaining two-thirds interest in the property is willing to sell at whatever price the county receives for the lots.
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Counties are but arms or agencies of the state, organized to carry out or perform some functions of state government. They, as instrumentalities of the state, have no powers except those specifically conferred by the Constitution and state laws or those which are reasonably or necessarily implied from the granted powers. State v. Superior Court, 2 Wn. (2d) 575, 98 P. (2d) 985 (1940); Carpenter v. Okanogan County, 163 Wash. 18, 299 Pac. 400 (1931).
The powers of a county can only be exercised by the County Commissioners or by agents or officers acting under their authority or authority of law. RCW 36.01.030. There appears no express authority either in the Constitution or under statute permitting a county to act as the agent of an individual to effect the sale of his interest in property together with the interest of the county in the property which is held by both in common. Since the interest of the county may be sold separately and without reference to the interest and without the necessity of concurrence of the other owner, it is in no way necessary to the exercise of the county's power of sale that the other owner's interest in the property be sold at the same time. Consequently, it could not be said that such power (to act as agent) is impliedly granted within the express power given to the county to sell tax title land at public auction, for powers arising by implication arise only when they may be reasonably or necessarily implied from expressly granted power.
Creation of the relationship of agent and principal between the county and an individual would necessarily raise questions as to the scope of the county's authority, scope of its liability, and the precise terms and provisions of the agency agreement. Considering the many consequences which could result from such a relationship, it would seem clearly beyond the power of the county to enter into such relationships without express or clearly implied statutory authorization.
You have asked in the alternative, if the agency relation is not permissible, what other procedure we might suggest. What follows should not be considered as an official expression or opinion; we include it only by way of suggestion.
The purchaser of the county's interest would be perfectly free to bargain with the holder of the two-thirds interest on whatever terms as between themselves they could arrange. From a practical standpoint it would seem that any prospective purchaser interested in purchasing the property at public auction could enter into an option agreement with the holder of the two-thirds interest, conditioning the option upon being the successful bidder at the public auction sale, thereby assuring himself of eventual ownership of the entire interest in the tract of land. While this method perhaps would not be as expedient as would the unavailable method of permitting the county to act as agent of the individual [[Orig. Op. Page 3]] owner in the sale of the land, it should result in a bidding price at the public sale approximate to a normal bidding price at a forced sale. Furthermore, the individual owner of the two-thirds interest in the property could advertise the fact that he was willing to sell his two-thirds interest to a successful bidder at the public auction.
In conclusion we must state again that the county is not authorized to act as agent of a private individual for the sale of his interest in property in which the county holds an interest which it is selling. While a higher price might be obtained if this relationship were permissible, that fact cannot cure the absence of statutory authority.
Very truly yours,
Assistant Attorney General