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AGO 1967 No. 35 - October 26, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS - IRRIGATION - COLLECTION OF DELINQUENT ASSESSMENTS.

A county treasurer is required to collect the one dollar charge prescribed by RCW 87.03.270, as amended by § 2, chapter 169, Laws of 1967, on irrigation district assessments which became delinquent prior to the effective date of the amendment where collection of the assessment occurs after that date; such a construction of the amendment does not render the act an ex post facto law.

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                                                                October 26, 1967

Honorable George A. Kain
Prosecuting Attorney
Spokane County Court House
Spokane, Washington 99201

                                                                                                                 Cite as:  AGO 1967 No. 35

Dear Sir:

            This is written in response to your request for our opinion on a question which we paraphrase as follows:

            Is the county treasurer required to collect the one dollar charge prescribed by RCW 87.03.270, as amended by § 2, chapter 169, Laws of 1967, on irrigation district assessments which became delinquent prior to the effective date of the amendment where collection of the assessment occurs after that date?

            We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 169, Laws of 1967, relates to the levy and collection of irrigation district assessments and amends portions of chapter 87.03 RCW.  Section 2 of the act (amending RCW 87.03.270) provides in part:

            "When the county treasurer collects a delinquent assessment, in addition to any other amounts due by reason of the delinquency, he shall collect an additional sum of one dollar which shall be deposited to the county current  [[Orig. Op. Page 2]] expense fund to the credit of the treasurer's office."

            This provision, together with the remainder of the act, became effective on June 8, 1967.  You have asked whether the one dollar charge provided for by this amendatory provision is to be collected after that date upon collection of assessments which became delinquent prior to this effective date.  We believe that it is.

            When determining if a statute is to be given prospective or retrospective application, one is usually faced with the rule that statutes have no retroactive effect unless the legislative intent is so expressed.  In re Cascade Fixture Co., 8 Wn.2d 263, 111 P.2d 991 (1941).  However, an exception to this general rule is that an act has a retroactive application when it relates to practice, procedure, or remedies, and does not affect a contractual or vested right.  Nelson v. Dept. of Labor & Industries, 9 Wn.2d 621, 115 P.2d 1014 (1941).

            The portion of § 2, chapter 169, Laws of 1967, quoted above is clearly a remedy to induce the payment of assessments.  In 51 Am.Jur. 851, Taxation, § 972, the following applicable statement is made:

            ". . . The state may provide a reasonable compensation for the officials charged with any duty in connection with the collection of delinquent taxes, and incorporate the charges therefor as part of the costs of the proceedings for collection. . . .  Since a statute imposing such liability relates wholly to the remedy, it may be made applicable to taxes assessed and payable prior to the enactment of the statute."

            Likewise, this additional remedy does not affect any contractual or vested rights.  As was stated inLeague v. Texas, 184 U.S. 156 (1901):

            ". . . A delinquent taxpayer has no vested right in an existing mode of collecting taxes.  There is no contract between him and the State that the latter will not vary the mode of collection. . . ."

             [[Orig. Op. Page 3]]

            Section 2 of chapter 169 makes no distinction between assessments which were already delinquent when the act went into effect and assessments becoming delinquent after the act's effective date.  The amendment reads:

            "When the county treasurer collects a delinquent assessment, . . . he shall collect an additional sum of one dollar, . . ."  (Emphasis supplied.)

            Thus, it matters not under the statute when an assessment became due.  If it is past due and unpaid, it is a "delinquent assessment."  Therefore, it follows, in accordance with the general principles set out above, that this provision of § 2, chapter 169, Laws of 1967, must be applied to current collections of assessments which were delinquent prior to June 8, 1967, as well as those becoming delinquent since that date, unless such a construction would as has been suggested in your letter make the act an ex post facto law.

            The respective provisions of the United States1/ and Washington State2/ Constitutions prohibiting the passage ofex post facto laws have consistently been held to apply only to legislation of a criminal nature.  Johannessen v. United States, 225 U.S. 227, 56 L.Ed. 1066, 325 S.Ct. 613 (1912);Carpenter v. Butler, 32 Wn.2d 371, 201 P.2d 704 (1949);State ex rel. Hagen v. Superior Court, 139 Wash. 454, 247 Pac. 942 (1926).  InState v. Lopeman, 143 Wash. 99, 254 Pac. 454 (1927), the court described and defined an ex post facto law as follows:

            ". . . Anex post facto law is

            "'. . . 1st every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.  2d. Every law that aggravates a crime, or makes it greater than it was when committed.  3d. Every law that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when  [[Orig. Op. Page 4]] committed.  4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.'  Calder v. Bull, 3 Dall. 386, 1 U.S. L.Ed. 648; 6 R.C.L. 276."

            However, neither chapter 169, Laws of 1967, nor any other law, makes nonpayment of irrigation district assessments, when due, a crime.  Therefore, the one dollar charge in question (provided for by § 2, chapter 169, Laws of 1967) even if, for purposes of argument, deemed to be a penalty, is not for punishment of a crime and, thus, does not come within the ex post facto restriction.  Bankers Trust Co. v. Blodgett, 260 U.S. 647, 67 L.Ed. 439, 43 S.Ct. 233 (1923).  Thus, we find no constitutional ex post facto restriction upon application of this 1967 amendment to current collections of irrigation district assessments which became delinquent before its effective date.

            In addition, our conclusion as to the validity of this application of the amendment is consistent with, and supported by the reasoning of the decision of the Washington court inHenry v. McKay, 164 Wash. 526, 3 P.2d 145, 77 A.L.R. 1025 (1931).  In that case the court considered the effect of chapter 113, Laws of 1931, on taxes which had become delinquent prior to the effective date of that act.  The act had lowered the interest rate to be charged for delinquent taxes.  It read in part:

            ". . . interest at the rate of ten per cent per annum shall be charged upon such unpaid taxes from the date of delinquency until paid: . . ."

            The prior law, § 83, chapter 130, Laws of 1925, had in similar language imposed a twelve percent rate of interest, and it was argued since there was nothing in the 1931 act expressly providing that the new interest rate should operate retroactively, it should not be given a retroactive effect.  However, the court held that the new ten percent rate was to be applied to all delinquent taxescollected after the effective date of the act no matter when they became delinquent.  It concluded that ten percent was the rate to be charged for the total period of delinquency even though a portion of that period was before  [[Orig. Op. Page 5]] the 1931 act became effective.  The court stated at pages 533-534:

            ". . . Not until payment is tendered is there any occasion for the treasurer to examine the statute to ascertain what rate of interest should be charged. . . .

            "The provision exacting payment of interest for delinquency in the payment of taxes does not make the interest a part of the tax, but pertains to the remedy employed to compel payment of the tax when due. . . . Though the state adopted new remedies for the collection of taxes, and applied those remedies to taxes already delinquent, such retrospective operation of the statute would not be a violation of the constitutional (state or Federal) rights of the property-owner. . . .

            "The statute makes the county treasurer the receiver and collector of all taxes extended upon the rolls, and provides that, after a tax becomes delinquent, 'interest at the rate of ten per cent per annum shall be charged upon such unpaid taxes from the date of delinquency until paid.'  That language means nothing more than that, until payment of the tax is tendered, or until the treasurer is about to collect the tax, he is not concerned with the rate of interest that should be charged upon the tax. . . .  The treasurer should look, not to the old act, but to the statute in force at the time of the tender, for computing the interest chargeable on the delinquent tax."  (Emphasis theirs.)

            Similarly here, when the treasurer collects a delinquent irrigation district assessment after June 8, 1967, he is to look to chapter 169, Laws of 1967, to determine the amount, in addition to the assessment, which is to be collected.  This act directs him to charge an additional one dollar for each delinquent assessment collected.

             [[Orig. Op. Page 6]]

            Thus, on the basis ofHenry v. McKay, supra, and the general authorities and cases cited, we conclude that the county treasurer is required to collect the one dollar charge prescribed by § 2, chapter 169, Laws of 1967, on assessments which became delinquent prior to June 8, 1967,3/ where collection occurs after that date.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

KENNETH R. AHLF
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/United States Constitution, Article I, § 10.

2/Washington State Constitution, Article I, § 23.

3/Of course, the additional one dollar is also to be charged upon the collection of delinquent assessments which did not become delinquent until after June 8, 1967.

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