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AGO 1965 No. 24 - June 15, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CITIES AND TOWNS ‑- THIRD CLASS ‑- LOCAL IMPROVEMENT DISTRICTS ‑- ASSESSMENTS ‑- PRIORITY OVER SUBSEQUENT ASSESSMENT OF AN IRRIGATION AND REHABILITATION DISTRICT.

(1) Prior assessments of a local improvement district of a city of the third class take priority over subsequent assessments of an irrigation and rehabilitation district.

(2) Foreclosure for delinquent assessments by an irrigation and rehabilitation district does not extinguish the lien of prior assessments of a local improvement district of the third class which are still outstanding but not delinquent.

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                                                                   June 15, 1965

Honorable Paul A. Klasen, Jr.
Prosecuting Attorney
Grant County Court House
Ephrata, Washington 98823

                                                                                                                Cite as:  AGO 65-66 No. 24

Dear Sir:

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

            1. Do prior assessments by an L.I.D. of a city of the third class take priority over subsequent assessments of an irrigation and rehabilitation district?

            2. Does a foreclosure for delinquent assessments by an irrigation and rehabilitation district extinguish prior assessments which are still outstanding but not delinquent by a local improvement district of a city of the third class?

            We answer your first question in the affirmative and your second question in the negative.

                                                                     ANALYSIS

            When a city pays for a local improvement by assessments against the property benefited, it is required to establish a local improvement district.  See, RCW 35.43.080.  Thereafter, in making and collecting such assessments, the city  [[Orig. Op. Page 2]] proceeds under the provisions of chapters 35.44 through 35.54 RCW.

            Under RCW 35.50.010, the assessment by a city for the cost of a local improvement constitutes a lien upon the property assessed from the time the assessment roll is placed in the hands of the city or town treasurer for collection, as a general rule.  With respect to the priority of such lien, RCW 35.50.010, supra, provides in pertinent part as follows:

            "The assessment lien shall be paramount and superior to any other lien or encumbrance theretofore or thereafter created except a lien for general taxes."

            Therefore, unless the assessments by an irrigation and rehabilitation district are "general taxes" or unless there is some statutory language pertaining to such assessments which overcomes the specific language of RCW 35.50.010,supra, the city's local improvement district assessment lien is ". . . paramount and superior to any other lien or encumbrance theretofore or thereafter created . . ." by an irrigation and rehabilitation district.  RCW 35.50.010,supra; Seattle v. Algar, 122 Wash. 367, 210 Pac. 664 (1922).

            Assessments by an irrigation and rehabilitation district are authorized under the provisions of chapter 87.84 RCW.  RCW 87.84.070 provides as follows:

            "The directors shall be empowered to specially assess land located in the district for benefits thereto taking as a basis the last equalized assessment for county purposes:  Provided, That such assessment shall not exceed one mill upon such assessed valuation without securing authorization by vote of the electors of the district at an election called for that purpose.

            "The board shall give notice of such an election, for the time and in the manner and form provided for irrigation district elections.  The manner of conducting and voting at such an election, opening and closing polls, canvassing the votes,  [[Orig. Op. Page 3]] certifying the returns, and declaring the result shall be nearly as practicable the same as in irrigation district elections.

            "The special assessment provided for herein shall be due and payable at such times and in such amounts as designated by the district directors, which designation shall be made to the county auditor in writing, and the amount so designated shall be added to the general taxes, and entered upon the assessment rolls in his office, and collected therewith."  (Emphasis supplied.)

            This statute expressly recognizes the distinction between special assessments and general taxes, and refers to an assessment by an irrigation and rehabilitation district as a "special assessment."  This is a distinction recognized by the constitution itself.  See, Article VII, § 9, and Article XI, § 12, Washington State Constitution; also,Smith v. Seattle, 25 Wash. 300 (1901).  It is also notable that RCW 87.84.070, supra, makes no provision for priority of such special assessment by an irrigation and rehabilitation district.  The statute merely provides a method of collection without assigning priority to or creating a lien for such assessments.  See,Keene v. Seattle, 31 Wash. 202 (1903); also, 30 OAG 700 [[1929-30 OAG 700 to Prosecuting Attorney, Pierce County on June 13, 1930]], copy enclosed.  Therefore, under (1903); also, 30 OAG 700, copy enclosed.  Therefore, under RCW 35.50.010, supra, the liens of city L.I.D. assessments are paramount and superior to those which subsequently may arise by reason of irrigation and rehabilitation district assessments, because these latter assessments clearly do not produce "a lien for general taxes."

            With regard to your second question, a foreclosure for delinquent assessments by an irrigation and rehabilitation district would not have the effect of wiping out prior outstanding (but not delinquent) city L.I.D. assessments.  Assuming,arguendo, that irrigation and rehabilitation district assessments constitute a lien under RCW 87.84.070, supra, or any other statute, the foreclosure of this inferior and subordinate lien cannot extinguish the paramount and superior lien of outstanding L.I.D. assessments, not yet overdue, unless there is clear and specific statutory language to that effect.  See,Keene v. Seattle, supra.  Otherwise, the words "paramount" and "superior" would be meaningless.  In cases of foreclosure of subsequent liens, prior lien holders are generally protected.  See, 53 C.J.S., Liens, §§ 13-22.

             [[Orig. Op. Page 4]]

            The conflict with which your letter is concerned will not always arise as a practical matter.  RCW 87.84.070,supra, provides for adding the amount of the assessment to the general taxes, and collecting the amount of the assessment with the taxes.  In the event the lien for taxes is foreclosed, there are procedures for utilizing surplus proceeds for payment of outstanding liens, which would include both the lien of the irrigation and rehabilitation district and that of the city L.I.D.  See, RCW 87.64.420.  The problem arises, however, if a property owner pays his taxes but refuses or neglects to pay the portion representing irrigation and rehabilitation district assessments.

            It may be argued that the procedures applicable to irrigation district assessments are applicable to irrigation and rehabilitation district assessments.  If that were correct, foreclosure of the assessment would in all probability destroy the lien of the prior L.I.D. assessment.1/   The argument that the irrigation district assessment procedure is applicable has some support in the provisions of RCW 87.84.060, which provides in pertinent part as follows:

            "The directors of the irrigation and rehabilitation district shall be the same as of the irrigation district and the directors shall retain all power, rights and authority heretofore granted to them or hereafter granted to them as directors of an irrigation district under any provision of Title 87 or any amendments thereto or any authority granted to directors of irrigation districts under any other law of the state of Washington.  The irrigation and rehabilitation district shall also retain all power, rights and  [[Orig. Op. Page 5]] authority heretofore or hereafter granted to irrigation districts under Title 87 or any other law or laws of the state of Washington, and use said power and authority including local improvement district provisions to further irrigation and rehabilitation district purposes and in addition shall have authority to rehabilitate or improve all or a portion of any inland body of water including adjacent shore lines located in the district and shall have the further power of modifying or improving any existing or planned water control structure located in the district in order to further the health, recreation, and welfare of the residents in the district."

            However, that statute is manifestly a general statute relating to the powers and duties of the directors in general, while RCW 87.84.070, supra, is a special statute relating to the powers of the directors in assessing land for benefits.  These statutes must be read together as one.  See,State ex rel. American Piano Co. v. Sup'r Ct., 105 Wash. 676, 178 Pac. 827 (1919).  Where two sections of a statute are conflicting, that which is more specific will take precedence over that which is more general.  Braicks v. Henricksen, 43 F.Supp. 254 (1942).  In other words, where a statute expresses first a general intent and afterwards an inconsistent particular intent, such particular intent will be taken as an exception from general intent and both will stand.  In re North River Logging Co., 15 Wn.2d 204, 130 P.2d 64 (1942).

            If one compares the collection procedures of irrigation district assessments, culminating in the issuance of the deed mentioned above, with the simple collection procedures established for irrigation and rehabilitation districts, it becomes clear that the legislature did not intend to adopt irrigation district collection procedures by reference, for the collection of irrigation and rehabilitation district assessments.  InKeene v. Seattle, supra, the supreme court construed a statute relative to city L.I.D. assessments.2/    The statute, which permitted an alternative method of collecting such assessments, provided in pertinent part as follows:

             [[Orig. Op. Page 6]]

            ". . . the same shall be a part of the tax due on such property and with interest shall be collected as other taxes, separate account being kept thereof, and if not paid within the time fixed for the payment of other taxes, shall be collected as other taxes are collected, together with the additional charges, penalties and interests authorized to be charged and collected, on other delinquent taxes; and all other proceedings shall be taken thereon as if the same were originally a part of the general tax assessed against such property."

            The language of the court, pertinent to the present problem, is as follows (31 Wash. 202, 205):

            "It is argued by appellant that the provisions of the above section, permitting cities of the first class to adopt the method of general tax collecting as that of collecting special assessments, have the effect to place special assessments for local improvements upon an equality with general taxes.  Emphasis is placed by appellant upon the words, 'and the same shall be a part of the tax due on such property and with interest shall be collected as other taxes, . . . and all other proceedings shall be taken thereon as if the same were originally a part of the general tax assessed against such property.'  We think a fair interpretation of the language last quoted, and of the whole section, is that it relates to the method of collection which the city may adopt if it shall choose to do so.  It is not stated that the lien for local assessments shall be of equal rank with the general tax lien, and, when construed with other statutory provisions relating to priority of the general tax lien, as reviewed in McMillan v. Tacoma, supra, we think it cannot be held that such was intended, and especially so in the absence of a specific statement to that effect. . . ."

             [[Orig. Op. Page 7]]

            This language supports a conclusion that the legislature did not intend chapter 87.84 RCW to create a lien comparable in status either to the lien of an irrigation district assessment or the lien for general taxes.  See, also,State ex rel. Craver v. McConnaughey, 31 Wash. 207 (1903).

            In summary, we conclude that:

            (1) Prior assessments by an L.I.D. of a city of the third class are paramount and superior to subsequent assessments of an irrigation and rehabilitation district.

            (2) Under existing statutes, a foreclosure for delinquent assessments by an irrigation and rehabilitation district cannot have the effect of wiping out prior assessments which are still outstanding but not delinquent, by a local improvement district of a third class city.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The deed issued pursuant to a foreclosure for nonpayment of irrigation district assessments, when its grantee is a party other than the irrigation district or the county, ". . . conveys to the grantee the absolute title to the lands described therein, free from all encumbrances, except general taxes, drainage or diking district assessments, drainage or diking improvement district assessments, and all existing irrigation district assessments."  RCW 87.03.370.

2/Chapter 71, page 167, Laws of 1893.a

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