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AGO 1966 No. 112 - October 11, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- SECRETARY OF STATE ‑- FEES ‑- COUNTIES ‑- MOTOR VEHICLES.

(1) A county, as a plaintiff commencing suit against a nonresident motorist under RCW 46.04.040, is liable for payment of the fee provided for by this statute when making service on the secretary of state.

(2) A prosecuting attorney is required to pay the fees provided for by RCW 43.07.120 when he requests copies or certification of corporate documents from the secretary of state, except where the documents of certification are supplied in connection with a prosecution under a law which it is the duty of the secretary of state to administer and enforce.

                                                              - - - - - - - - - - - - -

                                                                October 11, 1966

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington

                                                                                                              Cite as:  AGO 65-66 No. 112

Dear Sir:

            By letter previously acknowledged you requested the advice of this office on two questions which we paraphrase as follows:

            1. Is a county, as a plaintiff commencing suit against a nonresident motorist under RCW 46.64.040, liable for payment of the fee provided for by this statute when making service on the secretary of state?

            2. Is a prosecuting attorney who requests copies or certification of corporate documents required to pay the fees therefore to the secretary of state, pursuant to RCW 43.07.120?

            We answer question (1) in the affirmative, and question (2) in the affirmative subject to the qualification noted in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1):

            RCW 46.64.040 relates to the commencement of suit against nonresident motorists,

            ". . . growing out of any accident, collision, or liability in which such nonresident may be involved while operating a vehicle upon the public highways . . ."

            The statute among other things, makes the secretary of state the statutory agent for service of process on such nonresident motorists.  Service of process may be made by "leaving two copies thereof with a fee of two dollars" (emphasis supplied) with the secretary of state.  The statute further provides that the fee of two dollars paid by the plaintiff to the secretary of state shall be taxed as part of his costs if he prevails in the action.

            Your question, as we view it, is governed by the provisions of RCW 4.84.170.  This statute reads as follows:

            "In all actions prosecuted in the name and for the use of the state, or in the name and for the use of any county, and in any action brought against the state or any county, and on all appeals to the supreme court of the state in all actions brought by or against either the state or any county, the state or county shall be liable for costs in the same case and to the same extent as private parties."

            InState ex rel. Hamilton v. Ayer, 194 Wash. 165, 77 P.2d 610 (1938), the court held that by virtue of this statute the state (and, by analogy, a county) is liable to pay such filing or similar fees (in connection with litigation) as are required of private litigants in the same situation.  Accord,Dept of Labor & Industries v. Ayer, 185 Wash. 310, 54 P.2d 1019 (1936).

            The rule of the twoAyer cases seems to be that if the officer's fee is properly a cost item, it is payable by the plaintiff state or county to the officer demanding payment.  Since RCW 46.64.040,supra, expressly makes the fee of the secretary of state a cost item, we conclude that the fee is due when the plaintiff commencing an action under this statute is a county, just as where the plaintiff is a private party.

             [[Orig. Op. Page 3]]

            Question (2):

            Next you have asked whether a prosecuting attorney who requests copies or certification of corporate documents is required to pay the fees therefor which are provided for by RCW 43.07.120.  This statute reads as follows:

            "The secretary of state shall collect the fees herein prescribed for his official services:

            "(1) For a copy of any law, resolution, record, or other document or paper on file in his office, fifty cents per page for the first ten pages and twenty-five cents per page for each additional page;

            "(2) For any certificate under seal, two dollars;

            "(3) For filing and recording trademark, ten dollars;

            "(4) For each deed or patent of land issued by the governor, if for one hundred and sixty acres of land, or less, one dollar, and for each additional one hundred and sixty acres, or fraction thereof, one dollar;

            "(5) For recording miscellaneous records, papers, or other documents, five dollars for filing each case.

            "No member of the legislature, state officer, judge of the supreme court or of a superior court, shall be charged for any search relative to matters pertaining to the duties of his office; nor may he be charged for a certified copy of any law or resolution passed by the legislature relative to his official duties, if such law has not been published as a state law.

            "All fees herein enumerated must be collected in advance."

            It is a recognized rule that general legislation is inapplicable to the state or its political subdivisions, unless the statute expressly applies to them, or unless they must be included by necessary implication.  Port of Seattle v.  [[Orig. Op. Page 4]] Inter. etc. Union, 52 Wn.2d 317, 324 P.2d 1099 (1958);West Norman Timber, Inc. v. State, 37 Wn.2d 467, 224 P.2d 635 (1950);State v. Gorham, 110 Wash. 330, 188 Pac. 457, (1920).

            However, in our opinion, for the reasons hereinafter indicated, neither the state (or its officers) nor a political subdivision (or its officers) are excluded from application of RCW 43.07.120, supra, except to the extent expressly stated in the next-to-last paragraph thereof.

            Our court has said that the primary purpose in construing a statute is to ascertain and give effect to the intention of the legislature which enacted the statute.  Public Hospital District No. 2. v. Taxpayers, 44 Wn.2d 623, 269 P.2d 594 (1954);Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948);Lynch v. Dept. of Labor & Industries, et al., 19 Wn.2d 802, 145 P.2d 265 (1944).  A fundamental rule of construction is that in arriving at the intent of the legislature, first resort is to be made to the context and subject matter of the legislation because the intention of the lawmakers is to be deduced from what they have said.  Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957); see also,Driscoll v. City of Bremerton, 48 Wn.2d 95, 291 P.2d 642 (1955).  Legislative intent must be gleaned from a consideration of the whole act by giving effect to the entire statute and every part thereof.  SeeDeGrief v. Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956);State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).  A statute should, if possible, be so construed that no clause, sentence or word shall be held to be superfluous, void or insignificant.  SeePublic Hospital District No. 2 v. Taxpayers, supra; Group Health Cooperative of Puget Sound v. King County Medical Society, 39 Wn.2d 586, 237 P.2d 737 (1951).  And finally, it has generally been held that an express exception in a statute excludes all other exceptions and cannot be extended by implication.  City of Spokane v. State, 198 Wash. 682, 89 P.2d 826 (1939); Monroe Calculating Machine Co. v. Dept. of Labor & Industries, 11 Wn.2d 636, 120 P.2d 466 (1941); Sandona v. City of Cle Elum, 37 Wn.2d 831, 226 P.2d 889 (1951).

            Applying these rules, with particular emphasis on the rule last noted, it would seem to follow that RCW 43.07.120, supra, was intended to apply to services performed by the secretary of state on behalf of all persons, including public officials such as prosecuting attorneys, except those expressly excepted by so much of the statute as reads:

             [[Orig. Op. Page 5]]

            "No member of the legislature, state officer, judge of the supreme court or of a superior court, shall be charged for any search relative to matters pertaining to the duties of his office; nor may he be charged for a certified copy of any law or resolution passed by the legislature relative to his official duties, if such law has not been published as a state law."

            Resort to legislative history buttresses this conclusion.  The first act, following statehood, authorizing the secretary of state to charge fees appears in the Laws of 1890 at page 633.  This early statute expressly applied to certain state officers.  Moreover, it contained the following exclusion:

            ". . . But no member of the legislature, or state officer, orprosecuting attorney, supreme court or superior court judge can be charged for any search relative to matters appertaining to the duties of their offices; nor must they be charged for a certified copy of any law or resolution . . ."  (Emphasis supplied)

            When, in 1893, the legislature substituted therefor the comprehensive act pertaining to fees which is the source of RCW 42.07.120, supra, (chapter 130, Laws of 1893), it apparently saw fit to exclude prosecuting attorneys from the exceptions previously listed.  Reflecting upon this type of legislative omission, our court, in Alexander v. Highfill, 18 Wn.2d 733, 140 P.2d 277 (1943), has said:

            "'When a statute is revised, and a provision contained in it is omitted, the inference to be drawn from such a course of legislation is that a change in the law was intended to be made. . . .  The omitted provision is not to be revived by construction.'"  (18 Wn.2d at 744)

            We therefore conclude that, in general terms, the fees provided for by RCW 43.07.120,supra, are applicable in the case of services rendered by the secretary of state (including the furnishing of copies of, or certification of corporate documents) to a prosecuting attorney.  We recognize in so concluding that a contrary statement was made by this office in a 1928 opinion (OAG 27-28, p. 485) to the secretary of state.  However, the proposition there under consideration was limited to the furnishing of copies of corporate documents by the secretary of  [[Orig. Op. Page 6]] state to a prosecuting attorney in connection with enforcement of chapter 69, Laws of 1923, the so-called "blue sky" or securities act.  We said:

            "Since the duty of enforcing the act devolves upon the secretary of state, we are of the opinion that the secretary of state, as a part of such law enforcement, may prepare and furnish to the prosecuting attorneys necessary certified copies for the use of such prosecuting attorneys in prosecutions growing out of such act without making any charge to the prosecuting attorneys for such service."

            This was all that was necessary in order to decide the question presented.  The ensuing broad statement,1/ which you have called to our attention, was accordingly, dicta.  It obviously failed to take into account the matters of legislative history and the scope of the express statutory exceptions as described above.

            Accordingly, this 1928 opinion should be regarded as limited to the case of a prosecution under a law which it is the duty of the secretary of state to administer and enforce.2/   Subject to this qualification, it is our opinion that a prosecuting attorney who requests copies and/or certification of corporate documents is required to pay the fees therefor to the secretary of state, pursuant to RCW 43.07.120, supra.

             [[Orig. Op. Page 7]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

RICHARD A. MATTSEN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/"We are further of the opinion that the fees provided for by section 10993, Rem. Comp. Stat., are fees which should be charged to the general public and should not be charged to other branches of the state government and counties in the absence of special statutory enactment."

2/Notably, the securities act of 1923 (chapter 69, Laws of 1923) was repealed by § 68, chapter 282, Laws of 1959, a comprehensive new securities act which is administered not by the secretary of state but rather by the director of the department of motor vehicles (formerly department of licenses).

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