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AGO 1976 No. 16 - September 22, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- TREASURER ‑- TAXATION ‑- FUNDING COSTS OF PROPERTY TAX FORECLOSURES

All reasonably necessary costs of foreclosure, distraint and sale of property for delinquent taxes that can be traced by a reliable accounting method to the particular taxpayer and property involved may be (1) charged against the revolving fund created by RCW 82.56.020 and (2) recovered as costs of foreclosure or costs of distraint against the taxpayer or other party against whom that statute authorizes the charging of "costs."

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                                                              September 22, 1976

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201

                                                                                                                 Cite as:  AGO 1976 No. 16

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) May a county treasurer make expenditures from the operation and maintenance fund created by RCW 84.56.020 to defray office operation costs incurred by foreclosure, distraint, and sale of real or personal property for delinquent taxes?

            (2) If the answer to question (1) is affirmative, may the county treasurer seek to recover such office operation costs from the delinquent taxpayer?

            We answer both questions in the affirmative for the reasons, and subject to the qualifications, set forth in our analysis.

                                                                     ANALYSIS

            Your questions involve the Title 84 RCW procedures under which a county treasurer proceeds against persons who are  [[Orig. Op. Page 2]] delinquent in the payment of real or personal property taxes.  An overview of those procedures is set forth immediately below to provide a framework for our analysis of those questions.

            RCW 84.56.070 provides that in the event of delinquency in the payment ofpersonal property taxes the treasurer shall distrain and sell the personal property involved.  RCW 84.64.030 provides that in the event of a delinquency in the payment ofreal property taxes an action shall be brought to foreclose the county's tax lien against the realty.

            If the treasurer distrains personal property for delinquency in the payment of taxes, the taxpayer, to regain possession of the personalty, must pay the taxes, interest and "accruing costs of distraint" prior to sale thereof.  RCW 84.56.070.  Where the treasurer has provided a taxpayer with notice and summons in an action to foreclose a tax lien against real property, the delinquent taxpayer, in order to redeem the realty, must pay the taxes, interest and "costs accrued in foreclosure" prior to sale thereof.  RCW 84.64.030.

            In carrying out his duties regarding the distraint of personalty and foreclosure against realty, the treasurer has a comprehensive range of duties.  Among other things he records tax liens, provides notice to delinquent taxpayers, seizes personalty, conducts title searches with respect to realty, and performs other administrative tasks necessary to carry out such duties.  The treasurer is vested with broad discretion in carrying out those duties.  See,Metzger v. Quick, 46 Wn.2d 477, 282 P.2d 812 (1955).

            Question (1):

            The portion of RCW 84.56.020 that is relevant to your question regarding which costs of the county treasurer may be defrayed from the operation and maintenance fund reads as follows:

            ". . .  All collections of interest on delinquent taxes shall be credited to the county current expense fund; but the cost of foreclosure and sale of real property, and the fees and costs of distraint and sale of personal property, for delinquent taxes, shall, when collected, be credited to the operation and maintenance fund of the county treasurer prosecuting the foreclosure or distraint or sale; and shall be used by the county treasurer as a revolving fund to defray the cost of further foreclosure, distraint and sale for delinquent taxes without regard to budget limitations."

             [[Orig. Op. Page 3]]

            You have asked whether the broad range of office operation expenses traceable to the treasurer's foreclosure and distraint duties constitute "costs of foreclosure and sale of real property" or "costs of distraint and sale of personal property" within the meaning of this statute.1/   The above‑quoted language clearly and unambiguously provides that certain fees and costs, when collected, shall be used by the county treasurer as a revolving fund to defray the cost of further foreclosure, distraint and sale for delinquent taxes without regard to budget limitations.

            It is well settled that where the language of a statute is clear and unambiguous on its face, there is no room for construction; see, e.g.,Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 494 P.2d 216 (1972).  Also, words of a statute will be understood in their usual and ordinary sense in the absence of any special statutory definition.  City of Kent v. Lamb, 1 Wn.App. 737, 463 P.2d 661 (Ct.App.Div. 1, 1969).

            Accordingly, since the term "cost" within the phrase "cost of further disclosure, distraint and sale for delinquent taxes" is not defined in the statute, that term should be given the ordinary meaning it will receive in everyday usage.  Webster's Third New International Dictionary provides a definition of "cost" as follows:

            ". . . whatever must be given . . . or foregone to . . . accomplish a result . . ."  Webster's Third New International Dictionary (1971 ed.), p. 515.

            There is an alternative reason for concluding that the term "cost" should be given a broad interpretation.  The Washington  [[Orig. Op. Page 4]] Supreme Court has held that in the absence of explicit restraints, a broad range of discretion will be read into statutory provisions which govern the actions of independent elective officials.

            "The individuals holding these offices are required by law to perform certain definite governmental duties.  It is a well recognized rule that a general grant of power or statutory direction to perform official duties, unaccompanied by definite directions as to how the power is to be exercised or the duty performed, implies the right and duty to employ the means and methods necessary to comply with the statutory requirements.  2 Lewis' Sutherland Statutory Construction 942, § 508; Throop on Public Officers, 515, § 542."  State ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 585, 98 P.2d 985 (1940).

            Because the legislature has not placed a limitation in RCW 84.56.020 upon the extent of expenditures allowed, it follows, under the foregoing rule, that the defraying of reasonably necessary expenditures which are within the general purposes of the statute should be sustained.

            Faced with the above‑excerpted language of chapter 84.56 RCW and guided by the principles of construction cited above, this office, in a March 31, 1964, letter opinion to the Lewis county prosecutor, copy enclosed, advised that expenditures from the revolving fund for an automobile might be permissible in appropriate circumstances.  In that opinion, at page 2, we concluded:

            ". . .  Consequently, if an expenditure out of this particular fund is reasonably necessary for the carrying out of specific statutory purposes for which the fund exists, its propriety should be sustained. . . ."

            In the instant situation it would appear that all of the office operations expenditures you have mentioned in your letter requesting our opinion2/ are reasonably necessary to  [[Orig. Op. Page 5]] enable the treasurer to perform his duties of foreclosure, distraint or sale in collecting delinquent property taxes.  For these reasons, we conclude that, as a general rule, all such expenditures incurred and directly traceable under a reliable accounting method to the performance of such duties may be defrayed from the revolving fund established by RCW 82.56.020.3/

             Question (2):

            The issue raised by your second question is whether the term "cost" within the references to "cost of distraint and sale" and "costs of foreclosure and sale" discussed above should be given the same meaning throughout chapter 84.56 RCW and chapter 84.64 RCW.  Your particular question is whether such expenditures are recoverable from the taxpayer seeking to recover distrained personalty or seeking to redeem realty from foreclosure.

            RCW 84.56.070 provides that the taxpayer seeking to regain possession of distrained property must pay taxes and interest thereon "together with all accruing costs."  RCW 84.64.030 provides that in addition to taxes and interest required to be paid by a person seeking to redeem realty against which foreclosure proceedings have been instituted, "costs accrued in foreclosing" against the realty shall be part of the redemption price required to be paid.

            The relevant provisions of chapters 84.56 RCW and 84.64 RCW all relate to the same officer in the same governmental entity  [[Orig. Op. Page 6]] performing the same function ‑ i.e., the county treasurer distraining personalty and foreclosing upon realty.  It is clear that these are laws inparimateria and should be construed with reference to each other.  See, e.g.,City of Tacoma v. Perkins, 42 Wn.2d 80, 253 P.2d 957 (1953).

            Buttressing the conclusion that the statutes should be read inparimateria is the specific provision of RCW 84.56.020 which states that the enumerated "costs . . . shall, when collected. . ." go to the revolving fund to defray costs of further foreclosure.  Clearly, since such "costs" could not be collected but for the authorization provided in Title 84 RCW, all provisions relating to "costs" in chapters 84.56 and 84.64 RCW authorizing the charging of such costs to delinquent taxpayers and other interested parties must be read to reference the same "costs" as are referenced in RCW 84.56.020.  Therefore, "costs" should be given its ordinary meaning in its usage throughout both chapters.

            Thus, it is our opinion that a county treasurer may include as "costs of distraint" or "costs of foreclosure" those reasonable office operation costs which can be traced to the delinquent taxpayer and property.

                        Summary

            Under the analysis set forth above, it is therefore our opinion that all reasonably necessary costs of foreclosure, distraint and sale of property for delinquent taxes that can be traced by a reliable accounting method to the particular taxpayer and property may be (1) charged against the revolving fund created by RCW 82.56.020 and (2) recovered as costs of foreclosure or costs of distraint against the taxpayer or other party against whom the statute authorizes the charging of "costs."

            We trust that the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


JOHN R. WASBERG
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/We will assume, throughout our analysis of both questions herein, that the treasurer can identify, through use of accepted accounting methods, those portions of the various indicated office expenditures which are made for the purpose of carrying out the distraint and foreclosure duties.  Accord, RCW 43.09.210 which provides that separate accounts are to be maintained for the various legislatively-designated funds and that expenditures are to be charged and payments are to be credited only to the appropriate funds.  Thus it is clear that the legislature intended that the various designated funds pay their own way such that expenditures which can be identified with a particular program should be charged to the fund created therefor.  See, AGO 63-64 No. 76 [[to C. W. "Red" Beck, State Representative on December 19, 1963]], copy enclosed, at p. 5.

2/By way of introduction to your specific questions you have advised us in your letter as follows:

            "Various county treasurers are, in addition to charging routinely taxable costs of filing fee, service, publication fees, as well as title search fees and notice fees (84.64.030), also charging as cost of foreclosure and sale the costs of office operation in connection with the foreclosure process.

            "Office operation costs expended from the operation and maintenance fund have included capital items such as filing cabinets used for foreclosure activities, CRT (Cathode Ray Terminal), and other computer costs (essentially, an electronic filing cabinet), insofar as those uses relate to foreclosure or in some counties even automobiles used in the foreclosure process and may logically include non-capital items such as salaries of personnel and indirect maintenance costs (such as heat, light), insofar as an accounting system can allocate such to the function of foreclosure."

3/To the extent that any statements in other portions of the above‑cited 1964 letter opinion might be read as being inconsistent with this present conclusion, the earlier opinion is hereby modified.

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