DUTY OF COUNTY TREASURER TO COLLECT DELINQUENT TAXES CERTIFIED BY TREASURER OF OTHER COUNTY

DUTY OF COUNTY TREASURER TO COLLECT DELINQUENT TAXES CERTIFIED BY TREASURER OF OTHER COUNTY.

Where personal property which has been assessed for taxes is removed from the assessing county to another county in this state before such taxes are paid, and the treasurer of the county from which the property is removed has certified to the treasurer of the county to which the property has been removed a statement of the taxes together with delinquencies and penalties, it is mandatory that the treasurer of the latter county collect or attempt to collect said taxes.  The treasurer of the county to which the delinquent taxes have been certified is subject to liability for failure or neglect to attempt to collect such taxes as provided in Rem. Rev. Stat., § 11256.

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                                                                February 11, 1952

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County
Ellensburg, Washington                                                                                               Cite as:  AGO 51-53 No. 236

Dear Sir:

            We have your letter concerning the following questions which we paraphrase as follows:

            (1) Where personal property which has been assessed for taxes is removed from the assessing county to another county in this state before such taxes are paid, and the treasurer of the county from which the property is removed has certified to the treasurer of the county to which the property has been removed a statement of the taxes and interest due, is it mandatory that the treasurer of the latter county collect or attempt to collect said taxes?

            (2) In the above situation, is the treasurer of the county to which the delinquent taxes have been certified subject to liability for failure or neglect to attempt to collect such taxes as provided in RCW 84.56.250 (Rem. Rev. Stat. Section 11256)?

             [[Orig. Op. Page 2]]

            Our conclusions are as follows:

            (1) Where taxes are certified under the conditions described above, the treasurer of the county to which they are certified must collect or attempt to collect such taxes.

            (2) The treasurer of the county to which the delinquent taxes have been certified is not liable under RCW 84.56.250 (Rem. Rev. Stat. Section 11256) for his failure or neglect to collect such taxes.

                                                                     ANALYSIS

            (1) The county treasurer of the county to which the delinquent taxes have been certified must collect or attempt to collect such taxes.

            Generally, statutes which confer upon a public officer power to perform acts which concern the public interest are regarded as mandatory, even though the language is merely permissive, since they are construed as imposing duties rather than conferring privileges.  Buffalo Library v. Wanamaker, 293 N.Y. Supp. 776, 162 Misc. 26; Lincoln Nat. Life Ins. Co. v. Fischer, 17 N.W. (2d) 273, 235 Iowa 506;Hersh v. Welsh, 18 A. (2d) 202, 179 Md. 270; 67 C.J.S. 399, 400.  See, also, the annotations in 103 A.L.R. commencing on page 812.

            By RCW 84.56.170 (Rem. Rev. Stat., section 11253), the county treasurer of a county to which taxes have been certified is empowered to collect these taxes in the same manner as he collects taxes assessed and levied upon the personal property in his county.  This statute states that

            "* * * [the county treasurer] shall have the same power to collect the taxes, penalties, and delinquencies so certified as he has to collect the personal taxes levied on personal property in his own county * * *"

            By this statute, the county treasurer is given the power to collect these certified taxes; such collection is certainly a matter of public concern and interest.  Accordingly under the above cases the treasurer of the county to which taxes have been certified as provided by statute must collect or attempt to collect such taxes.

             [[Orig. Op. Page 3]]

            (2) The treasurer of the county to which the delinquent taxes have been certified is not liable under RCW 84.56.250 (Rem. Rev. Stat., section 11256) for his failure or neglect to collect such taxes.

            That section provides that if the county treasurer refuses or neglects to collect or attempt to collect taxes, or fails to file a delinquent list then, "in his next settlement with the auditor" he shall be held liable for the amount of such uncollected taxes.  By a process of elimination, it appears to us that this statute refers to a county treasurer only in respect to the taxes assessed in his county.  The auditor of the county to which the taxes are certified from another county does not have a record in respect to such taxes; thus, the county treasurer of this county cannot have a "settlement" with him relative thereto.  Nor is there any other statute which requires the county treasurer of the county to which the taxes are certified to settle with the auditor of his county or the assessing county.  There being no procedure by which a county treasurer may have a "settlement" with a county auditor in respect to taxes certified to said treasurer, the above statute can only have reference to county treasurers in respect to taxes assessed in their counties.

Very truly yours,

SMITH TROY
Attorney General

WILLIAM G. JENKINS
Assistant Attorney General