ASSESSMENTS ‑- HIGHWAY LANDS ‑- LIABILITY FOR

ASSESSMENTS ‑- HIGHWAY LANDS ‑- LIABILITY FOR

All lands under the jurisdiction of the Department of Highways which are situated within any incorporated city, town, diking, drainage or port district may be assessed by the authorities of such districts, for improvements specially benefiting such lands, under authority of chapter 58, Laws of 1953.  If the commission finds that such assessments are payable it may, in its discretion, order the same paid from the motor vehicle fund.

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                                                               November 25, 1953

Washington State Highway Commission
Department of Highways
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 176

Attention:  Mr. Lorenz Goetz, Secretary

Gentlemen:

            We are in receipt of your letter of November 5, 1953, in which you request our opinion with respect to the effect of chapter 58, Laws of 1953, upon liability of highway lands for assessments.

            Our conclusions may be summarized as follows:

            All lands under the jurisdiction of the Department of Highways which are situated within any incorporated city, town, diking, drainage or port district may be assessed by the authorities of such districts, for improvements specially benefiting such lands, under authority of chapter 58, Laws of 1953.  If the commission finds that such assessments are payable it may, in its discretion, order the same paid from the motor vehicle fund.

                                                                     ANALYSIS

            Chapter 58, Laws of 1953, is divided into two sections, (codified as RCW 79.44.150 and RCW 79.44.160), the first of which provides, in part:

            "Lands held by the state department of highways shall be subject to all of the provisions of chapter 79.44. [[chapter 79.44 RCW]], RCW, * * *."

            Section 2 provides, in part:

            "Whenever the state highway commission shall find that any assessments * * * are payable the commission may order the same paid from the motor vehicle fund * * *."

            The act must be read in its entirety.  Thus, the use of the term "whenever" in section 2 must be construed as having reference only to those situations in which assessments are levied by districts embraced by chapter 79.44 RCW.

             [[Orig. Op. Page 2]]

            Before the enactment of chapter 58, Laws of 1953, highway lands were not subject to the provisions of chapter 79.44 RCW, which applied only to "public lands."  RCW 79.04.010 defines "public lands" as lands

            "* * * which are not devoted to or reserved for a particular use by law, and include state lands, * * *."

            The term "state lands" is defined in the same section to include various school, capitol building and institutional lands.  The term "highway lands" is conspicuous by its absence.  This definition is in accord with the general rule.  SeeState ex rel. Town of Crescent City v. Holland, 10 So. (2d) 577, 587, 590, 591, and 592, 151 Fla. 806, and cases cited.  See also informal Attorney General's opinion to the prosecuting attorney of Grays Harbor County, dated December 12, 1952.

            Chapter 79.44 RCW, has limited application to

            "All public lands held or owned by the state * * * situated within the limits of any incorporated city, town, diking, drainage, or port district in this state, * * *."

            Since there is no general clause which would render chapter 79.44 RCW applicable to districts not enumerated, lands in such districts are not subject to assessment.  Accordingly, chapter 58, Laws of 1953, does not subject any highway lands to liability for assessments by districts not specifically enumerated in chapter 79.44 RCW.  See informal opinion of this office to the Commissioner of Public Lands, dated August 24, 1948, and formal opinion to the State Auditor, dated February 9, 1950 [[Opinion No. 49-51-216]].

            The application of chapter 79.44 RCW is further limited to assessments for

            "* * * improvements specially benefiting such lands which may be ordered by the proper authorities of any such * * * district:  * * *"

            It is well settled in this state that the following are two of the conditions which must be met before an assessment can be held to be valid under the provisions of this chapter:

            First:  Notice of intention to make the assessment must be given to the proper authorities in accordance with the provisions of chapter 79.44 RCW, and, in so far as highway department lands are concerned, in accordance with section 1, chapter 58, Laws  [[Orig. Op. Page 3]] of 1953.  See opinions of this office to Director of Highways, May 12, 1930; Director of Highways, February 24, 1931; Director of Agriculture, December 6, 1935; Director of Department of Finance, Budget and Business, January 27, 1941.

            Second; There must be a determination that the proposed improvement will specially benefit the lands which are sought to be assessed.  See,In re Howard Avenue North, 44 Wash. 62, 86 Pac. 1117; Northern Pacific Railway Company v. Walla Walla County, 116 Wash. 684, 200 Pac. 585; State ex rel. Clancy v. Columbia Irrigation District, 121 Wash. 79, 208 Pac. 27;Union Trust Company v. Carnhope Irrigation District, 132 Wash. 538, 232 Pac. 341, 234 Pac. 277, (cited and distinguished inState ex rel. Wells v. Hartung, 150 Wash. 590, 274 Pac. 181); andHargreaves v. Mukilteo Water District, 143 Wash. Dec. 300 [[43 Wn.2d 326]].

            In addition to making chapter 79.44 RCW applicable to highway lands, chapter 58 also provides a means for immediate payment of assessments which the highway commission finds "are payable."  A finding by the commission that the assessments "are payable" must be based upon a determination of whether all conditions precedent to liability for the assessments have been met.  Once the commission has found that the assessments "are payable," it becomes discretionary with the commission to order, or not to order, such assessments paid from the motor vehicle fund.  The act imposes no mandatory duty upon the commission to pay any assessments from the motor vehicle fund.

            It should be noted, however, that once the assessment roll has been approved and confirmed, and the treasurer of the district has certified and forwarded to the highway department a statement of the lands charged, all in accordance with RCW 79.44.050, the department must charge such lands with the amount so assessed, and then must certify the statement to the state auditor.  This is a mandatory duty upon the department, which must be distinguished from the discretionary authority of the commission, to make immediate payment from the motor vehicle fund.

            Chapter 79.44 RCW applies only to assessments for improvements "which may be ordered" (see RCW 79.44.010).  This clause makes the chapter, as amended, applicable only to assessments which arise after the effective date of the 1953 act.  It has no application to assessments which have been made upon highway lands prior to that time, either before or after acquisition by the state.

            We express no opinion respecting the liability, if any, of lands devoted to highway purposes pursuant to special statutes relating to particular districts.

Very truly yours,

DON EASTVOLD
Attorney General

WILLIAM C. HALLIN
Assistant Attorney General