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AGO 1949 No. 182 - December 15, 1949
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Smith Troy | 1941-1952 | Attorney General of Washington

FEDERAL GOVERNMENT FURNISHING BOND TO SECURE DUPLICATE WARRANTS

Sections 11010, 11011 and 11012 Rem. Rev. Stat. do not require the furnishing of a bond by the United States Government in case of a lost or destroyed state warrant previously issued to the Federal Government before the execution of a duplicate warrant by the state auditor, but the state auditor should comply with statutes in all other respects.

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                                                               December 15, 1949

Honorable W. A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 182

Dear Sir:

            We have your letter of December 8, 1949, in which you ask the following question:

            Do sections 11010, 11011 and 11012 Rem. Rev. Stat. require the furnishing of a bond by the United States Government in the case of a lost or destroyed state warrant previously issued to the Federal Government before the execution of a duplicate warrant by the state auditor.

            The conclusions may be summarized as follows:

            The United States Government is not required to furnish such a bond, but the state auditor should comply with statutes in all other respects.

                                                                     ANALYSIS

            Your letter states in part:

            "Some time ago the State Auditor issued State warrant No. 445442 in the amount of $40.26, in favor of the United States Department of the Interior, drawn against Motor Vehicle Funds, in payment of operating and maintenance costs  [[Orig. Op. Page 2]] due U.S. Indian Irrigation Service relative to costs incidental to the purchase of lands for a portion of Secondary State Highway No. 3-A, Wapato to Prosser.

            "We were recently informed by the U.S. Department of the Interior, U.S. Indian Irrigation Service at Wapato, Washington, they had never received the warrant.  The Washington State Treasurer informs us the subject warrant has never been cashed.  * * *"

            You further advise us that the Federal authorities object to giving a bond and then ask as to the proper procedure in this case.

            Section 15, page 639, Laws of 1889-90, [11010 Rem. Rev. Stat.] provides for the issuance of duplicate warrants "In case of the loss or destruction by fire or any other cause, of any state warrant or warrants * * *."

            Section 16 of the same act [11011 Rem. Rev. Stat.] provides:

            "Before any such duplicate warrant shall be issued, as provided in the last preceding section, the state auditor shall require from the person making application for the issue of such duplicate warrant, to file in his office a written affidavit specifically alleging on oath that he is the proper owner, payee, or legal representative of such owner or payee of the original warrant for which a duplicate is required, giving the date of issue, the number, amount and for what services or claim said original warrant was issued, and that the same has been lost or destroyed, and has not been paid; and shall also require the person so making application to give a sufficient bond, with one or more sufficient sureties, conditioned to save the state harmless from the payment of the original warrant, and all costs and charges on account thereof."

            Section 17 [11012 Rem. Rev. Stat.] provides:

             [[Orig. Op. Page 3]]

            "The state auditor shall keep a full and complete record, for identification, of all warrants alleged to have been lost or destroyed, and of the issue of any duplicate therefor; and upon the issuance of any such duplicate, he shall enter the cancellation upon the books of his office of the original warrant, and immediately notify the state treasurer of such cancellation."

            Our question involves what meaning shall be given to the word "person" as used in § 16, [11011 Rem. Rev. Stat.] supra.  Is such word, "person", to be construed as including the United States Government?  For the reasons hereinafter given, we think not.

            The word "person" in its ordinary legal meaning does not embrace a state or government.  West Coast M. & I. Co. v. West Coast Imp. Co., 25 Wash. 627 at page 642;McBride v. Pierce County Commrs., 44 Fed. 17;In re Fox, 52 N.Y. 535;U.S. v. Fox, 94 U.S. 315.  However there are cases where the word "person" when used in a particular statute is held to embrace the state or sovereign.  West Coast M. & I. Co. v. West Coast Imp. Co., supra; Longview Co. v. Cowlitz County, 1 Wn. (2d) 64, 95 P. (2d) 376.  The rule of distinction is stated in U.S. v. Cooper Corporation, 312 U.S. 600, Sup. Ct. 742, 85 L.Ed. 1071, as follows:

            "Since, in common usage, the term 'person' does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it.  But there is no hard and fast rule of exclusion.  The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law."

            In an opinion to the state treasurer, dated April 11, 1945, we held that where the state itself had lost a warrant issued by a county in favor of a state, that no bond was required.  In a letter to the state auditor, dated March 2, 1945, we held that where counties had lost state warrants and had requested duplicate warrants that no bond was required.

            As mentioned in your letter, the Acting Comptroller General of the United States on April 1, 1938, held that where the state of Utah had lost or had not received a warrant issued by the United States, that no bond was required by the state of Utah.  Decisions of the Acting Comptroller General of the United States, Volume 17, p. 801.  It is to be noted that the Federal  [[Orig. Op. Page 4]] statutes give to the Federal authorities a much greater amount of discretion than is given to our state auditor by sections 11010 et seq. Rem. Rev. Stat., supra.  However, the reasons given for the decision are especially applicable herein.

            "As checks or warrants drawn to the order of a State could only be negotiated by endorsement of a proper State official and generally only for the purpose of collection through banking facilities, and possibility of the presentation of a duplicate claim by a State of by a bona fide holder as transferee of a State are too remote to warrant serious consideration.  In view thereof no bond of indemnity will hereafter be required in support of claims for the proceeds of lost checks or warrants which have been covered into outstanding liabilities when presented by or in behalf of a State."

            Considering the elements specifically mentioned in the quotation from theCooper case,supra, we believe that the Washington Legislature, in passing sections 11010, 11011 and 11012 Rem. Rev. Stat., supra, did not intend that the Federal Government should be required to give a bond to the state of Washington where a warrant of the state, issued in favor of any branch of the Federal Government has been lost or destroyed before being presented for payment, in order to secure a duplicate warrant.  The state auditor, however, should require proof of such loss or destruction, and should take all the other statutory steps, before actually issuing the duplicate warrant.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General

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