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AGLO 1977 No. 44 - October 20, 1977
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- MOTOR VEHICLES ‑- RESPONSIBILITIES OF COUNTY AUDITOR IN LICENSING MOTOR VEHICLES

When appointed pursuant to RCW 46.01.130-46.01.140, a county auditor serves as statutory agent for the state Department of Licensing in connection with the licensing of motor vehicles.  The resulting relationship may not be unilaterally terminated by the county auditor even in the event of a work stoppage or strike, or other emergency situation; however, the state director of licensing retains the ultimate responsibility for implementation of the state motor vehicle licensing system together with full authority to exercise requisite control and supervision over county auditors as statutory agents.

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                                                                October 20, 1977

Honorable James E. Carty
Prosecuting Attorney
Clark County
P.O. Box 5000
Vancouver, Washington 98663                                                                                                               Cite as:  AGLO 1977 No. 44

Dear Sir:

            By letter previously acknowledged you requested our opinion on several questions pertaining to the legal relationship between the Clark County auditor and the Washington State Department of Motor Vehicles (now known as the Department of Licensing) in connection with the issuance of motor vehicle license plates.  We paraphrase your questions as follows:

            (1) What is the legal relationship between the Department of Licensing and a county auditor appointed as an agent of the department for the licensing of motor vehicles?

             [[Orig. Op. Page 2]]

            (2) Can this relationship be terminated by unilateral action of either party?

            (3) Does the existence of a work stoppage, or "strike," by employees of the county auditor automatically terminate his responsibilities in this area?

            (4) Can the county auditor, during such a work stoppage or other "emergency" terminate the relationship and avoid responsibility for the duties imposed thereby?

            (5) Does the Department of Licensing, during such a work stoppage or other "emergency," have an obligation to assist the county auditor in fulfilling his duties?

            (6) Does the Department of Licensing, in appointing the county auditor as his agent for the licensing of vehicles, completely relinquish its power, control and supervision over the agent?

            We answer questions (1), (2), (4), and (5) in the manner set forth in our analysis.  Questions (3) and (6) are answered in the negative for the reasons stated herein.

                                                                     ANALYSIS

            The basic statutes giving rise to your questions are RCW 46.01.130, 46.01.140 and 46.01.160 which read, respectfully, as follows:

            RCW 46.01.130:

            "The department of motor vehicles shall have the general supervision and control of the issuing of vehicle licenses and vehicle license number plates and shall have the full power to do all things necessary and proper to carry out the provisions of the law relating to the licensing of vehicles; the director shall have the power to appoint and employ deputies, assistants and representatives, and such clerks as may be required from time to time, and to provide for their operation in different parts of the state, and the director shall have the power to appoint the county auditors of the several counties as his agents for the licensing of vehicles."

             [[Orig. Op. Page 3]]

            RCW 46.01.140:

            "The county auditor, if appointed by the director of motor vehicles shall carry out the provisions of this title relating to the licensing of vehicles and the issuance of vehicle license number plates under the direction and supervision of the director and may with the approval of the director appoint assistants as special deputies to accept applications and collect fees for vehicle licenses and transfers and to deliver vehicle license number plates.

            ". . ."

            RCW 46.01.160:

            "The director shall prescribe and provide suitable forms of applications, certificates of ownership and registration, drivers' licenses and all other forms and licenses requisite or deemed necessary to carry out the provisions of Title 46 RCW and any other laws the enforcement and administration of which are vested in the department."

            By virtue of Chapter 334, Laws of 1977, 1st Ex. Sess., however, the former Department of Motor Vehicles is now known as the Department of Licensing.  Furthermore, as amended by § 2, Chapter 334, supra, RCW 46.01.020(4) now provides that:

            "(4) Any reference in the Revised Code of Washington to the director of motor vehicles or the department of motor vehicles shall be considered to be references to the director of licensing or to the department of licensing, respectively."

            Question (1):

            The answer to your first question, it seems to us, is quite clear.  The "legal relationship" between the Department of Licensing and a county auditor under the above‑quoted sections of Title 46 RCW is one of statutory agency.  In other  [[Orig. Op. Page 4]] words the agency relationship here arises not by contract but by statute; and as a consequence, one element of the common law principle agency relationship ‑ that of mutual consent to the formation of the relationship ‑ is omitted.  The authority vested in the director to create a relationship is discretionary, but once that authority has been exercised the county auditor is legally bound to accept the appointment and carry out the directives of the principal (i.e., the department) under RCW 46.01.140.

            Question (2):

            In view of the foregoing identification of the nature of the legal relationship between the Department of Licensing and a county auditor under RCW 46.01.130-46.01.160, we likewise find your second question to be readily answerable.  Simply stated, only the state director of licensing has unilateral authority to terminate the relationship once it has been established; conversely, the county auditor has no authority to relinquish the designation of agent once it has been made.

            Question (3):

            Your third, fourth and fifth questions assume the existence of a work stoppage or strike by certain employees of a county auditor who is also serving as statutory agent for the Department of Licensing under RCW 46.01.130-46.01.160.  First you have asked:

            "Does the existence of a work stoppage, or 'strike,' by employees of the county auditor automatically terminate his responsibility in this area?"

            We answer this question in the negative.  RCW 46.01.140 unqualifiedly imposes certain duties upon a county auditor as a consequence of his appointment as statutory agent for the Department of Licensing under RCW 46.01.130.  Nothing contained in that statute, nor in any other law, purports to discharge the auditor from the performance of those legal duties because certain of his employees have gone on strike or otherwise refuse to work.  In short, we do not believe that the legislature intended that the existence of such a labor dispute would terminate the auditor's responsibilities under the cited statutes.1/

             [[Orig. Op. Page 5]]

            Question (4):

            Next you have asked:

            "Can the county auditor, during such a work stoppage or other 'emergency' terminate the relationship and avoid responsibility for the duties imposed thereby?"

            As we have indicated in response to questions (1) and (2), the director of licensing has the authority under RCW 46.01.130 to make the county auditor her agent and the auditor does not have the authority to refuse that agency or terminate it.  Further, as we have said in response to the third question, the auditor's legal responsibility continues even during those times in which he may be physically unable to perform those legal responsibilities.  Therefore, insofar as your fourth question has asked about a termination of either the relationship or the responsibilities we must again answer in the negative.

            In addition, your present question makes reference to an "avoidance" of responsibility.  It is true that impossibility of performance may in some instances be a good defense to an action seeking to hold a public officer liable for failure to perform his official duties.2/   The question of whether there would in fact be an impossibility of performance, however, would be dependent upon factual considerations beyond the ambit of your opinion request and this response.

            Question (5):

            Your fifth question is related to your fourth and asks:

            "Does the Department of Licensing, during such a work stoppage or other 'emergency,' have an obligation to assist the county auditor in fulfilling his duties?"

            The overall responsibility for implementation of the motor vehicle licensing system is clearly assigned to the Department of Licensing.  See, RCW 46.16.006(1) and 46.16.230.  Also to be noted is the fact that the state motor vehicle excise tax is collected at the same time as the licensing of motor vehicles and  [[Orig. Op. Page 6]] their annual renewals.  RCW 82.44.040 refers to the creation of a schedule for use in collection of the excise tax ". . . to enable the department of motor vehicles and its agents to ascertain readily the amount of the tax applicable to any particular motor vehicle."  Also RCW 82.44.060 states, with reference to the motor vehicle excise tax, that it is ". . . due and payable to the department of motor vehicles or its agents at the time of registration of a motor vehicle."  Finally, as previously noted, under RCW 46.01.130 the director has the general supervision and control over the issuing of vehicle licenses and has the authority to appoint such persons as may be required from time to time to provide for the licensing of motor vehicles in different parts of the state.

            The overall responsibility, then, is that of the director of licensing who must determine whether an adequate level of service is being provided.  Appointment of a county auditor is but one mechanism available to meet the director's responsibility.  If the county auditor is unable or refuses to provide an adequate level of services to the public, the director must then determine which of the other options available will be pursued.  However, we find nothing to suggest that the director would be required to provide assistance to the auditor in contrast to pursuing other solutions.

            With the exception of RCW 46.01.160, which requires the director to "prescribe and provide suitable forms," we find no statutory provision requiring affirmative action by either the director or the department in order to provide direct assistance to a county auditor in fulfilling his duties.

            We also here take note of the second paragraph of RCW 46.01.140,supra, which we did not quote earlier.  By that portion of the statute the legislature has provided for the assessment of an additional licensing fee of $1 for each application,

            ". . . which fee of one dollar, if paid to the county auditor as agent of the director, . . . shall be paid to the county treasurer in the same manner as other fees collected by the county auditor and credited to the county current expense fund. . . ."

            Apparently, the legislature established this mechanism to compensate the several counties for any additional costs incurred by their auditors in fulfilling their responsibilities  [[Orig. Op. Page 7]] as statutory agents of the state.  But in view of this provision, coupled with the absence of any other statutory requirement for the provision of assistance by the department, we are constrained to answer your fifth question, supra, in the negative.

            Question (6):

            Your final question, as above paraphrased, asks:

            "Does the Department of Licensing, in appointing the county auditor as his agent for the licensing of vehicles, completely relinquish its power, control and supervision over the agent?"

            Once again, RCW 46.01.140, supra, provides that:

            "The county auditor, if appointed by the director of motor vehicles, shall carry out the provisions of this title . . . under the direction and supervision of the director. . . ."  (Emphasis supplied)

            This statutory language, together with the broad authority vested in the department by RCW 46.01.130 and RCW 46.01.160, leads us to conclude that the appointment of the county auditor as agent for the director does not divest either the Department of Licensing or its director of the power to control and supervise the agent.  Therefore, we answer your sixth question in the negative as well.

            This completes our consideration of our several question. We trust that you will find the foregoing to be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

EDWARD B. MACKIE
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/The particular responsibilities imposed upon the county auditor as the statutory agent for the Department of Licensing are in this respect legally comparable to the general duties imposed upon county auditors by RCW 36.22.010.   Those duties and responsibilities likewise continue to exist even when the auditor may not physically be able to perform the same.

2/See, 63 Am.Jur. 2d., Public Officers and Employees, § 296.

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