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AGLO 1974 No. 37 - March 26, 1974
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

LIENS ‑- AGISTER ‑- AGRICULTURAL ‑- ENFORCEMENT OF ‑- ALTERNATIVE PROCEDURES

Discussion of distinction between liens arising under RCW 60.56.010 and RCW 60.56.040; enforceability of agister liens under RCW 60.56.020 in view of Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed. 2d 556, 92 S.Ct. 1983 (1972).

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                                                                  March 26, 1974

Honorable James E. Carty
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington 98660                                                                                                               Cite as:  AGLO 1974 No. 37

Dear Sir:

            By letter previously acknowledged you have requested our opinion on the following two questions:

            "(1) What is the distinction, if any, between liens arising under RCW 60.56.010 (1909) and those under RCW 60.56.040 (1891) and/or which section is effective in view of their similarities?

            "(2) May agister liens arising under RCW 60.56.010 be constitutionally enforced under RCW 60.56.020 in view of Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed. 2d 556, 92 S.Ct. 1983 (1972), or should RCW 60.56.050 be the enforcement proceeding?"

            We respond to these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            The first area of distinction between the two lien statutes you have cited is the respective scope of each.  RCW 60.56.010, codifying § 1, chapter 176, Laws of 1909, provides that:

            "Any farmer, ranchman, herder of cattle, tavern keeper, livery and boarding stable keeperor any other person, to whom any horses, mules, cattle or sheep shall be entrusted for the purpose of feeding, herding, pasturing, and training, caring for or ranching, shall have a lien upon said horses, mules, cattle or sheep for such amount that  [[Orig. Op. Page 2]] may be due for said feeding, herding, pasturing, training, caring for, and ranching, and shall be authorized to retain possession of said horses, mules or cattle or sheep, until said amount is paid."  (Emphasis supplied.)

            On the other hand RCW 60.56.040, codifying § 1, chapter 80, Laws of 1891, in providing for a similar lien excludes stolen livestock from its provisions and limits the right to an agister lien solely to those persons specifically enumerated therein.  This statute reads as follows:

            "Any farmer, ranchman, herder of cattle, tavern keeper, livery and boarding stable keeper to whom any horses, mules, cattle or sheep shall be entrusted for the purpose of feeding, herding, pasturing, training, caring for or ranching, shall have a lien upon said horses, mules, cattle or sheep for the amount that may be due for such feeding, herding, pasturing, training, caring for or ranching, and shall be authorized to retain possession of such horses, mules, cattle or sheep until the said amount is paid:  Provided, That these provisions shall not be construed to apply to stolen stock."  (Emphasis supplied.)

            Secondly, aside from this factor of who may obtain a lien thereunder, there is also a significant difference between these two enactments from a standpoint of enforcement.  RCW 60.56.020, codifying § 2 of the more recent 1909 act, provides that:

            "Any person having a lien under the provisions of RCW 60.56.010 for feeding, herding, pasturing, training, caring for, or ranching any horses, mules, cattle or sheep, shall retain such animal for a period of ten days, at the expiration of which time, if the owner of such animal does not satisfy such lien, the sheriff or any constable may sell such animal at public auction after giving the owner ten days' notice of the time and place of such sale by delivering a copy of such notice to the owner, or in case personal service cannot be had, by publishing same in a newspaper of general circulation in said county where said feeding, herding, pasturing, training, caring for, and ranching was furnished; if there be  [[Orig. Op. Page 3]] no paper of general circulation in said county, then by posting notices of the time and place of such sale in three conspicuous places in said county, and after satisfying the lien and costs that may accrue, any residue remaining shall be paid to the owner of said animal or person who may be lawfully entitled to the same."

            Conversely, RCW 60.56.050, which codifies § 2, of the 1891 act, provides for the enforcement of a lien obtained thereunder (i.e., under RCW 60.56.040,supra) as follows:

            "Any person having a lien under the provisions of RCW 60.56.040, may enforce the same by an action in any court of competent jurisdiction; and said property may be sold on execution for the purpose of satisfying the amount of such judgment and costs of sale, together with the proper costs of keeping the same up to the time of said sale."

            Insofar as the current effectiveness of both of these sets of statutes is concerned, we note, first, the absence of any sort of an express repealer of the 1891 act in chapter 176, Laws of 1909.  In addition, our research has disclosed a reported utilization of RCW 60.56.040 and 60.56.050 as recently as six years ago.  See, Hatley v. West, 74 Wn.2d 409, 445 P.2d 208 (1968).  Thus, it does not appear that these statutes, codifying the earlier, 1891 law, have been thought by the court to have been repealed by implication.  Accord,State, Etc. v. Spanaway Water Dist., 38 Wn.2d 393, 397, 229 P.2d 532 (1951), listing several distinct conditions not here present which must exist for such a repeal to occur.  As therein explained:

            "Thegeneral rule of statutory interpretation respecting implied repeals, as previously stated, provides that, in the absence of specific repealing language, a prior act is not repealed by the enactment of a later act relating to the same matter.  Theexception to the general rule permits a repeal by implication if the later act:

            "1.Covers the entire subject matter of the earlier legislation;

            "2. Iscomplete within itself;

             [[Orig. Op. Page 4]]

            "3. Is evidently intended to supersede the prior legislation on the subject; or

            "4. If the two acts are so clearly inconsistent with and repugnant to each other that they cannot be fair and reasonable construction be reconciled and both be given effect."1/

             Accordingly, in response to this aspect of your first question it is our opinion that both of these two agisters' lien statutes are still effective.  In those instances in which they overlap from the standpoint of who may assert a lien thereunder, the result will be an option on the part of the lien holder as to which act, and, hence, which remedy, he desires to use.2/

            Question (2):

            By your second question you have inquired as to the constitutionality of RCW 60.56.020,supra, in the light of the recent decision of the United States Supreme Court inFuentes v. Shevin, 407 U.S. 67, 32 L.Ed 2d 556, 92 S.Ct. 1983 (1972).

            In that case, the Supreme Court invalidated certain statutes providing for the replevin of property by a conditional vender or other owner without any notice to, or opportunity for hearing for, the possessor prior to the  [[Orig. Op. Page 5]] taking.  RCW 60.56.020, however, expressly provides for the giving of notice before the animals against which an agister's lien is claimed can be sold by the sheriff and, in addition, it involves no seizure because, by its terms the lien holder is already in possession of those animals.

            Beyond this, it would in any event be contrary to long-standing policy for us to declare this statute to be constitutionally defective even if these distinctions between it and those considered in Fuentes did not exist.  See, AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]], copy enclosed, wherein we said:

            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

EMANUEL E. ROSATTO
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, also, Fransen v. Board of Nat. Resources, 66 Wn.2d 672, 404 P.2d 432 (1965), and In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971).

2/In addition, by virtue of chapter 60.10 RCW (codifying §§ 2-8, chapter 82, Laws of 1969), the holder of an agister's lien may also now utilize the new methods of foreclosure provided by that act for the holder of "Any lien upon personal property excluded by RCW 62A.9-104 from the provisions of the Uniform Commercial Code . . ."   Because this 1969 act did not amend either RCW 60.56.020 or 60.56.030,supra, however ‑ as it did certain other preexisting lien foreclosure statutes ‑ it appears to us that these two statutesas above quoted are also still in effect.

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