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AGO 1963 No. 73 - December 09, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- DRAINAGE ‑- COMMISSIONERS ‑- ESTIMATES FOR TAX ASSESSMENT PURPOSES ‑- TIME FOR SUBMISSION DIRECTORY RATHER THAN MANDATORY.

The provisions of RCW 85.05.270 requiring drainage district commissioners on or before the first Monday in October to make and certify to the county auditor an estimate of the cost of maintenance and repair of the improvement for the ensuing year are directory rather than mandatory, and are intended only to secure orderly dispatch in the assessment procedures; therefore an assessment is valid if the requirements of law are satisfied and orderly procedures are followed.

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                                                                December 9, 1963

Honorable Herbert E. Wieland
Prosecuting Attorney
Pacific County
431 Second
Raymond, Washington

                                                                                                                Cite as:  AGO 63-64 No. 73

Dear Sir:

            By a previously acknowledged letter you have requested an opinion as to whether the provisions of RCW 85.05.270 are directory or mandatory in so far as they regulate the time in which drainage district commissioners can submit estimates of improvement costs to the county auditor.

            We conclude that the statute is directory only.

                                                                     ANALYSIS

            RCW 85.05.270 reads as follows:

            "On or before the first day of November of each year the diking commissioners shall, and on or before the first Monday in October of each year the drainage commissioners shall, make and certify to the county auditor an estimate of the cost of maintenance and repair of the improvement for the ensuing year.  The amount thereof shall be levied against the land in the district in proportion to the maximum benefits assessed, and shall be added  [[Orig. Op. Page 2]] to the general taxes and collected therewith.  If such estimate of the cost of maintenance and repair against any tract or contiguous tracts owned by one person or corporation is less than two dollars, then the county auditor shall levy such a minimum amount of two dollars against such tract or contiguous tracts, and upon the collection thereof as herein provided shall pay all sums collected into the maintenance and/or repair fund of the district.  In case of an emergency the commissioners may incur additional obligations and issue warrants therefor in excess of the estimate."

            You advise in your letter that the drainage district commissioners did not file the required estimate with the auditor until three or four weeks after "the first Monday in October," 1963.

            Generally, it is held that statutes which affect the public interest or are intended to protect a private citizen against loss or injury to his property, are mandatory rather than directory.  Spokane County ex rel. Sullivan v. Glover, 2 Wn.2d 162, 97 P.2d 628 (1940).

            The rule is expressed in 3 Sutherland, Statutory Construction (3rd ed.) § 5808, p. 88:

            "Provisions which, although directing action or regulating conduct of public officers, have for their purpose merely the securing of order and dispatch in the conduct of the business of such office, and on which rights of individuals or the public can not be said to depend, are directory only. . . ."

            See, also, 2 Cooley, Taxation (4th ed.) § 510.

            Further, the provisions of the statute in question contain no negative words and as was said inState v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948), at p. 154:

            "Affirmative statutory provisions relating to the time or the manner of performing official acts, unlimited or unqualified by negative words, are generally considered directory rather than mandatory."

             [[Orig. Op. Page 3]]

            It would appear that failure to certify the estimate within the time prescribed by RCW 85.05.270 would not injuriously affect the public interest or rights of private personsand you indicate in your letter that the orderly assessment procedure can still be completed without impairment.  On the other hand, the public should not be made to suffer because of the delay of the district commissioners.  3 Sutherland, Statutory Construction (3rd ed.) § 5816, p. 102.  Such might be the result if the assessment were held invalid.

            In analagous situations our supreme court has held that statutes designating the time in which tax levies shall be made are directory only and not mandatory.  Wingate v. Ketner, 8 Wash. 94, 35 Pac. 591 (1894); New Seattle Chamber of Commerce v. Seattle, 88 Wash. 620, 153 Pac. 351 (1915); and inSnohomish County v. Andrews, 144 Wash. 320, 257 Pac. 851 (1927), the court sustained the validity of an estimate made and certified under the statute in question by applying what is now codified as RCW 84.64.080, which provides that no error or informality in the proceedings by any officers connected with the assessment, levying or collection of taxes shall void or affect in any manner the taxes or the assessment thereof.

            We are therefore of the opinion that the particular provisions of RCW 85.05.270 herein discussed, are directory and not mandatory.  They are only intended to secure orderly dispatch in the assessment procedures.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HENRY W. WAGER
Assistant Attorney General

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