AGO 1994 No. 24 - Dec 20 1994
COUNTIES-COUNTY TREASURERS-NOXIOUS WEED CONTROL BOARDS-MOSQUITO CONTROL BOARDS-Authority of county treasurers to collect service charges for special assessments
1. County treasurers are authorized to collect a service fee for collecting "special assessments, fees, rates, or charges" as defined in RCW 36.29.180, but not for general taxes.
2. Mosquito control district assessments authorized under RCW 17.28.255 are "special assessments, fees, rates, or charges" and a county treasurer may charge the district a service fee for collecting such assessments.
3. Assessments levied by a county legislative authority for noxious weed control under RCW 17.10.240 do not constitute "special assessments, fees, rates, or charges" under RCW 36.29.180, because they are levied by the county itself and not by a special district; therefore, the county treasurer has no authority to charge a service fee for collecting such assessments.
4. RCW 43.09.210, which generally requires that one local or state agency or fund be compensated for services performed for another, is superseded by more specific statutes for purposes of determining a county treasurer's authority to charge service fees for tax and assessment collection and related services.
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December 20, 1994
HonorableJeffrey C. Sullivan
Yakima County Prosecuting Attorney
128 North Second Street
Yakima, WA 98901
Cite as: AGO 1994 No. 24
Dear Mr. Sullivan:
By letter previously acknowledged, you have requested our opinion on several questions relating to the authority of county treasurers to charge and collect service fees under RCW 36.29.180. We paraphrase your specific questions as follows:
1. Under what circumstances are county treasurers authorized to charge and collect a service fee under RCW 36.29.180?
2. Do mosquito control district assessments authorized under RCW 17.28.255 constitute "special assessments, fees, rates, or charges" for purposes of the county treasurer's authority to charge a service fee under RCW 36.29.180?
3. Do noxious weed control board assessments authorized under RCW 17.10.240 constitute "special assessments, fees, rates, or charges" for purposes of the county treasurer's authority to charge a service fee under RCW 36.29.180?
4. Does RCW 43.09.210 require that the county general fund be compensated for the cost of collection and administration of mosquito control district and noxious weed control board assessments by the county treasurer?
We answer your second question in the affirmative, your third and fourth questions in the negative, and your first question as indicated in the analysis below.
Initially, it should be noted as a well established rule that non-home rule counties have no powers except those expressly conferred by the constitution and state laws, or those which are reasonably or necessarily implied from the granted powers. State ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 579, 98 P.2d 985 (1940). Further, the powers of a county can only be exercised by its commissioners, or by agents or officers acting under their authority or under authority of law. State ex rel. King Cy. v. Superior Court, 33 Wn.2d 76, 80, 204 P.2d 514 (1949).
Regarding the power of a county treasurer to charge a fee for services rendered in the collection and distribution of city and town special assessments, this office concluded in AGO 1955-57 No. 237 that such a charge could not be imposed in the absence of statutory authority. In reaching this conclusion, we noted that municipal corporations and their officers may only exercise those powers expressly granted or necessarily implied therefrom. We also noted that the statutes governing the county treasurer (RCW 36.29) did not specifically grant county treasurers authority to charge cities and towns for services rendered in handling their tax collections. By the principles first set down in AGO 1955-57 No. 237, a county treasurer may only charge a fee for services rendered in collecting and distributing taxes, assessments, fees, rates, or charges if statutorily authorized.
Subsequent to issuance of AGO 1955-57 No. 237, the Legislature enacted section 1, chapter 270, Laws of 1961, codified as RCW 36.29.180, which authorized county treasurers to charge a fee for services within certain limitations. In AGO 1961-62 No. 70, this office was asked for clarification regarding application of the new law. Analyzing the statute in light of applicable rules of statutory interpretation, the opinion concluded that the Legislature intended this statute "to apply only to the collection of special assessments (as for local improvements), rather than the collection of general taxes". Id. at 4.
By section 8, chapter 245, Laws of 1991, the Legislature amended RCW 36.29.180 to read as follows:
The county treasurer, in all instances where required by law to handle, collect, disburse, and accountfor special assessments, fees, rates, or charges within the county, may charge and collect a fee for services not to exceed four dollars per parcel for each year in which the funds are collected. Such charges for services shall be based upon costs incurred by the treasurer in handling, collecting, disbursing, and accounting for the funds.
Such fees shall be a charge against the district and shall be credited to the county current expense fund by the county treasurer.
This is the statute we have been asked to construe in providing clarification of the authority of county treasurers to charge service fees. In construing a statute, the objective is to ascertain and give effect to the Legislature's intent and purpose as expressed in the language of the act as a whole. In re Eaton, 110 Wn.2d 892, 757 P.2d 961 (1988); Burlington Northern, Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977).
Applying the rules of statutory construction to RCW 36.29.180, especially in light of our previous opinions, we conclude that this statute authorizes a county treasurer to charge a fee for services only if "required by law to handle, collect, disburse, and account for special assessments, fees, rates, or charges within the county" and not otherwise. The authority granted in the 1991 amended version of RCW 36.29.180 is similar to the original statute enacted in 1961 as they both authorize the collection of a service fee for handling, collecting, disbursing, and accounting for "special assessments". See AGO 1961-62 No. 70. The current language of RCW 36.29.180, however, unlike the 1961 statute, provides additional authority for the county treasurer to charge a service fee for handling, collecting, disbursing, and accounting for "fees, rates, or charges" within the county. However, as with the original statute, the current language of RCW 36.29.180 does not authorize a county treasurer to charge a service fee for handling, collecting, disbursing, and accounting for "general taxes".
At this point, it may be helpful to provide some background on the distinction between general taxes, special assessments, and rates, fees, and charges. The distinction between general taxation and special assessments is well stated in the following quotation from an early case:
The theory upon which general taxation proceeds is entirely distinct from that of local assessments. General taxation is sought to be enforced against all classes of property upon anad valorem basis, while local assessments are limited to real property within a given district, and are based entirely upon the theory of special benefit by which the value of property is enhanced in excess of the general good. General taxation is enforced to serve the necessary purposes of government, while local assessments are enforced to serve mere local convenience, and for the additional benefit of private property holders. These differences make it necessary to recognize taxation and local assessments as distinct subjects. . . .
Philip A. Trautman, Assessments in Washington, 40 Wash. L. Rev. 100, 102 (1965),quotingMcMillan v. Tacoma, 26 Wash. 358, 361, 67 P. 68 (1901). See alsoHeavens v. King Cy. Rural Library Dist., 66 Wn.2d 558, 563, 404 P.2d 453 (1965).
InSeattle v. Rogers Clothing, 114 Wn.2d 213, 223-226, 787 P.2d 39 (1990), the court held that benefits for special assessments need not be permanent in nature. Rather, the court noted several instances in which services have been held to be a local improvement benefiting specific property. The court concluded "that as a general proposition the determination of what kind of a benefit will support a special assessment is a decision best left to the legislative process so long as the assessment is for a local improvement and does not exceed the benefit to the property". Id. at 226.
With this background discussion, we turn now to your first question.
Under what circumstances are county treasurers authorized to charge and collect a fee for services under RCW 36.29.180?
As discussed above, the Legislature has authorized county treasurers to charge and collect a fee for services only if "required by law to handle, collect, disburse, and account for special assessments, fees, rates, or charges within the county". RCW 36.29.180 (emphasis added). This language clearly provides that a county treasurer is authorized to charge a fee for handling, collecting, disbursing, and accounting for any special assessments "within the county" if "required by law" to do so. The phrase "within the county" is broad in nature, implying no limitation regarding entities that may be charged. Additionally, the phrase "required by law" indicates an intent that services be expressly required by statute. Accordingly, unless "required by law" to handle, collect, disburse, and account for a special assessment within the county, the county treasurer is not authorized to charge a fee for those services.
It has been suggested that use of the word "district" in the second paragraph of RCW 36.29.180 places a strict limitation on the authority of county treasurers to charge service fees only against entities that the Legislature has named as "districts". This paragraph of RCW 36.29.180 reads as follows: "Such fees shall be a charge against the district and shall be credited to the county current expense fund by the county treasurer." (Emphasis added.) Such a conclusion, however, does not comport with the general rules of statutory construction. First, when reading RCW 36.29.180 as a whole, the intent and purpose appears to be the granting of authority to county treasurers to charge a service fee for handling, collecting, disbursing, and accounting for special assessments "within the county" when required by law to do so. The statutory language granting authority places no restrictions on the type of entities within the county that may be charged a service fee, other than to indicate that the entity must be separate from the county. In this context, the county treasurer merely needs to be (1) required by law to (2) handle, collect, disburse, and account for (3) special assessments (4) within the county. See RCW 36.29.180.
Second, absent ambiguity or statutory definition, the term "district", as used in RCW 36.29.180, should be given its ordinary meaning. Garrison v. State Nursing Bd., 87 Wn.2d 195, 550 P.2d 7 (1976). Here, the term district is not defined and appears to be used in a general sense rather than making reference to a specific matter or organization. In this context, the ordinary meaning of the word "district", as provided by Webster's Dictionary, is "a geographical or political division made for a specific purpose". Webster's New World Dictionary 410 (2d ed. 1976). Thus, the first clause of the second paragraph merely requires that the fees charged by the county treasurer under RCW 36.29.180 be a charge against the separate geographical or political division that is related to the special assessment. This clause does not otherwise place any limitation on the authority of county treasurers to charge a service fee under RCW 36.29.180.
Do mosquito control district assessments authorized in RCW 17.28.255 constitute "special assessments, fees, rates, or charges" for purposes of the county treasurer's authority to charge a service fee under RCW 36.29.180?
As noted below, we conclude that the assessments authorized by RCW 17.28.255 meet the definition of "special assessments, fees, rates, or charges" and that the county treasurer may therefore charge a service fee for collecting such assessments.
In AGO 1959-60 No. 132, this office recognized that chapter 17.28 RCW "provides several methods whereby a mosquito control district may obtain the necessary monies for the operation of the district and for capital purposes". AGO 1959-60 No. 132, at 1. First, RCW 17.28.100 provides for the levy of a general tax on all property located within the mosquito control district if approved by the voters at the election to form the district. As a general tax, it is not subject to the service fee authorized by RCW 36.29.180.
Second, after formation of the mosquito control district, RCW 17.28.260 authorized the district to issue general obligation bonds for authorized capital purposes and provide for their retirement by excess property tax levies. For the reasons stated above, this general tax would not be subject to the service fee authorized by RCW 36.29.180.
Third, a mosquito control district may also raise money for capital or other authorized purposes by voting the levy of additional taxes in excess of constitutional and/or statutory limitations as provided in RCW 17.28.252. As a general tax, this also would not be subject to the service fee authorized by RCW 36.29.180.
A fourth method is provided in RCW 17.28.255. Under RCW 17.28.255, a mosquito control district is required to finance the operations of the district by annual assessments on the property within the district in proportion with benefits derived by the property from district operations. RCW 17.28.255 reads as follows:
The board of trustees shall annually determine the amount of money necessary to carry on the operations of the district and shall classify the property therein in proportion to the benefits to be derived from the operations of the district and in accordance with such classification shall apportion and assess the several lots, blocks, tracts, and parcels of land or other property within the district, which assessment shall be collected with the general taxes of the county or counties.
RCW 17.28.255 clearly refers to financing operations of the district by special assessment. First, in the language of the statute itself the Legislature recognizes the distinction between mosquito control district assessments and general taxes. For example, RCW 17.28.255 provides that the "assessment shall be collected with the general taxes of the county". Second, the word "assessment", as used in RCW 17.28.255, refers to classification of the property in proportion to benefits derived. This language indicates a special assessment based on benefit to property rather than a general tax imposed on an ad valorem basis. Third, RCW 17.28.258 and .270 recognize a distinction between mosquito control district assessments and taxes for purposes of collection and disposition. In this regard, RCW 17.28.258 provides as follows: "The county treasurer shall collect all mosquito control district assessments . . . The collection and disposition of revenue from such assessments and the depositary thereof shall be the same as for tax revenues of such districts as provided in RCW 17.28.270." Based on these factors, therefore, we conclude that RCW 17.28.255 refers to special assessments, and, as such, the county treasurer is authorized under RCW 36.29.180 to charge a service fee for the costs associated with handling, collecting, disbursing, and accounting for these special assessments.
While we recognize that a special assessment must be for a local improvement that brings a special benefit to specific land, we presume here that such a benefit exists; no facts to the contrary have been presented. The Legislature has provided in RCW 17.28.255 that the assessments in question are to be based upon benefits derived by specific property from the operations of the district, and has provided a mechanism for classifying and assessing the property in accordance with such benefits. Accordingly, we conclude that the assessments authorized by RCW 17.28.255 are special assessments.
We have also been informed of a concern that because the assessments authorized in RCW 17.28.255 are "to carry on the operations of the district", such assessments could not have been intended by the Legislature to represent "special assessments". Based on previously cited Washington case law, we cannot agree with this contention. First, inRogers Clothing, 114 Wn.2d at 224, the court explicitly recognized that services of a nonpermanent nature may constitute benefits for purposes of special assessments. Additionally, inAnkeny v. Spokane, 92 Wash. 549, 559, 159 P. 806 (1916), the court rejected the argument that the cost of operating a local improvement cannot be charged as a special assessment so long as the operation continues to provide a special benefit to specific land. Accordingly, based on the above analysis, the operations of mosquito control districts are required to be financed by special assessment pursuant to RCW 17.28.255, and are subject to a service fee by the county treasurer under RCW 36.29.180.
Do noxious weed control board assessments authorized under RCW 17.10.240 constitute "special assessments, fees, rates, or charges" for purposes of the county treasurer's authority to charge a service fee under RCW 36.29.180?
In answering Question 1 above, we concluded that RCW 36.29.180 authorizes a county treasurer to charge and collect a service fee for handling, collecting, disbursing, and accounting for any "special assessments. . . within the county" if "required by law" to do so. (Emphasis added.) Therefore, we must determine whether (1) there is a special assessment, (2) within the county, and (3) that the county treasurer is required by law to handle, collect, disburse, and account for the special assessment.
Under RCW 17.10.240(1), a county legislative body (not, we note, the noxious weed board itself) is authorized to impose a special assessment on land within the county for noxious weed control purposes. SeeRogers Clothing, 114 Wn.2d at 224, citingAnkeny, 92 Wash. at 557 (referring to the removal of noxious weeds as a special benefit to specific land for purposes of a special assessment); AGO 1990 No. 11. Since the assessment is by the county legislative authority itself, a fair inference is that the assessment in question is by the county itself, and not by a separate district or entity. Furthermore, regarding the third element listed above, we find no law requiring the county treasurer to handle, collect, disburse, and account for the special assessments of a noxious weed control board. If the assessment is by the county itself, RCW 36.29.180 does not come into play. Alternatively, if the assessment is by a "separate" noxious weed control board, the treasurer is not obligated to collect such an assessment. Either way, no service fee charge by a county treasurer against a noxious weed control board for the costs of handling, collecting, disbursing, and accounting for special assessments is authorized by RCW 36.29.180.
Does RCW 43.09.210 require that the county general fund be compensated for the cost of collection and administration of mosquito control district and noxious weed control board assessments by the county treasurer?
RCW 43.09.210 provides as follows:
Separate accounts shall be kept for every appropriation or fund of a taxing or legislative body showing date and manner of each payment made therefrom, the name, address, and vocation of each person, organization, corporation, or association to whom paid, and for what purpose paid.
Separate accounts shall be kept for each department, public improvement, undertaking, institution, and public service industry under the jurisdiction of every taxing body.
All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another.
All unexpended balances of appropriations shall be transferred to the fund from which appropriated, whenever the account with an appropriation is closed.
The State Supreme Court has read this statute as generally requiring governments to obtain fair value for services performed for one another, unless the Legislature has specifically provided otherwise. State v. Grays Harbor Cy., 98 Wn.2d 606, 656 P.2d 1084 (1983). See also discussions in AGO 1985 No. 12 and AGO 1985 No. 17.
However, as these authorities recognize, RCW 43.09.210 merely states a general statutory principle, which yields to specific legislative enactments on a particular subject. In the case of service charges by county treasurers, the Legislature has provided (and revised from time to time) specific authority, with limitations, for such charges. In this area, we conclude that the Legislature intended the specific assessment scheme adopted to govern, even to the extent inconsistent with such a general statute as RCW 43.09.210.
Regarding mosquito control districts, as discussed earlier, the Legislature has specifically authorized a treasurer service charge for special assessments, but not for any general taxes. As to noxious weed control boards, as discussed in our answer to your third question, the legislation authorizing service charges against certain districts by implication excludes the possibility of charging other county offices and funds within the county government itself, except to the extent these might be covered by other statutes, and we are aware of none concerning noxious weed control boards. Accordingly, having concluded that the legislative scheme makes it clear when county treasurers may charge service charges and when not, we conclude that the specific service charge pattern chosen by the Legislature should be followed rather than attempting to reason from the very general principles enunciated in RCW 43.09.210.
We trust that the foregoing will be of assistance to you.
Very truly yours,
CHRISTINE O. GREGOIRE
BRIAN E. BUCHHOLZ
Assistant Attorney General
This is in accord with AGO 1959-60 No. 144, which concluded that King County could not legally compel the Port of Seattle to defray the administrative costs of refunding taxes illegally assessed and collected without specific statutory authority to impose such charges.
Special assessments, however, are not the exclusive method of financing local improvements. As illustrated in AGO 1989 No. 18, if legislatively authorized, improvements necessary to health and safety may be paid for by imposition of service or user charges that are not based on special benefit to specific property. As rates, fees, and charges are not at issue in the questions raised, further discussion of this method of financing is not necessary.
While the service fee charged and collected under RCW 36.29.180 may be up to "four dollars per parcel for each year in which the funds are collected", the actual fee charged "shall be based upon costs incurred".
This conclusion is also in accord with the "general rule that a municipality or other governmental unit, through its officers, has no right to compensation or reimbursement for legally required services rendered unless it can point to a particular statute authorizing it to impose and collect charges for the service in question". AGO 1969 No. 16, and authorities cited therein.
RCW 17.28.256 provides: "The board of trustees in assessing the property within the district and the rights, duties and liabilities of property owners therein shall be governed, insofar as is consistent with this chapter, by the provisions for county road improvement districts as set forth in RCW 36.88.090 through .110."
Additionally, in AGO 1963-64 No. 76, this office concluded that if the costs of the general governmental function of county officers, such as the county treasurer, could be allocated to other funds, it would essentially result in a tax upon those other funds for purposes of general government. "This result", the opinion observed, "should not be reached without express legislative direction to that effect."