AGO 1951 No. 177 - Nov 23 1951
FEES CHARGED BY NOTARIES PUBLIC WHO ARE SALARIED PUBLIC OFFICERS OR SALARIED PUBLIC EMPLOYEES
Salaried officers and employees of the state or political subdivisions, who are notaries public, are not required to charge fees for notarial services, nor account therefor to the public treasuries.
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November 23, 1951
Mr. J. B. Gibson
Executive Department Secretary
Office of the Governor
Olympia, Washington Cite as: AGO 51-53 No. 177
Receipt is acknowledged of your letter of November 19, 1951, in which you request our opinion as to the effect of the following paragraph from section 7, chapter 51, Laws of 1951:
"All public officers who are paid a salary in lieu of fees shall collect the prescribed fees for the use of the state or county as the case may be."
Your letter propounds the following questions:
"1. Are notaries public who are salaried public officers or salaried public employees considered 'public officers who are paid a salary in lieu of fees'"
"2. Are notaries public who are salaried state officers or salaried state employees, required to charge a fee for their services as a notary public and transmit the fees so collected to the State Treasurer?
[[Orig. Op. Page 2]]
"3. Are notaries public who are salaried county officers or salaried county employees, required to charge a fee for their services as a notary public and transmit the fees so collected to the county treasurer?
"4. Are notaries public who are salaried public officers or salaried public employees of cities and political subdivisions of the state, required to charge a fee for their services as a notary public and transmit the fees so collected to the city treasurer or the treasurer of the political subdivision they work for?
"5. If such notaries public who are salaried public officers or salaried public employees are required to charge a fee for their services as a notary public, are they required to charge the prescribed fees for notary work performed for the public office they work for or any other public office?
"6. If such notaries public who are salaried public officers or salaried public employees are required to charge a fee for their services as a notary public, is the State Auditor required to audit their records?"
It is our conclusion that notaries public who are salaried public officials or salaried public employees are not "public officers who are paid a salary in lieu of fees," and salaried public officers or employees who are notaries public are not required to charge fees for their notarial services or pay the same into any public treasury.
Chapter 51, of the Laws of 1951, makes comprehensive revisions in the fee schedules of various types of public officials, including court clerks, county auditors, sheriffs, and notaries public. Section 7, which is the last section of the chapter, specifies maximum fees which notaries may charge for certain services. At the end of this section appears the language quoted in your question.
[[Orig. Op. Page 3]]
An examination of the history of the legislation will indicate that the language was intended to apply to all officers dealt with in the entire act. Chapter 51 of the Laws of 1951 amends various sections of the Revised Code of Washington, namely, RCW 2.32.070, 2.36.150, 2.40.010, 36.08.010, 36.18.020, 36.18.040, and 42.28.090. It will be found, however, that all these sections are derived from section 1, of chapter 56, of the Laws of 1907. The legislature included in one section in chapter 56, of the Laws of 1907, the schedules of fees for clerks of the supreme court, clerks of the superior court, sheriffs, constables, county auditors, coroners, jurors, witnesses, the secretary of state, and notaries public. In Remington's Revised Statutes this single section was broken down into several paragraphs which were assigned various numbers and were set out in different sections of the code, thus the Remington section relative to notaries public was assigned number 9907. That relating to the secretary of state's fees was assigned number 10993, that part of the same section, relative to sheriff's fees was made Remington 497. The writers of the Revised Code of Washington followed the same plan and broke the single section into various parts, appearing in widely separated portions of the code. In the original act there appeared at the end of the whole section the following provision:
"All officers enumerated in this section, who are paid a salary in lieu of fees, shall collect the fees herein prescribed for the use of the state or county, as the case may be, and shall pay the same into the State or county treasury, as the case may be, on the first Monday of each month."
That language was thus applicable to the entire section and to fees of all kinds. It is apparent that when chapter 51, of the Laws of 1951, was adopted, the legislature simply followed the 1907 statute but broke the section down into various numbered code sections. The language in question was, however, allowed to remain exactly at the place where the comparable language had been in the 1907 law, namely, at the end of all of the material. It is, therefore, our opinion that this language does not refer alone to notaries public but to all of the officers mentioned in the section. This language was carried in Remington's Revised Statutes as a separate section, numbered 4217. The language in section 7, chapter 51, of the Laws of 1951, in our opinion, does not introduce any new requirement into the law.
It will be noted that the language limits the applicability of the requirement to public officers who are paid the salary in lieu of fees. This requirement has never, to our knowledge, been applied to the fees of notaries public. Nowhere does the law provide for the payment of any salary to a notary public, but [[Orig. Op. Page 4]] salaried public officials desiring to become notaries public must go through the same procedure to secure their appointments in that capacity as persons not in public employment. They receive no salary for acting as notaries public but rather for performing their other public office.
There is no statutory requirement that a notary charge fees at all. Section 7 of chapter 51, of the Laws of 1951, setting notaries fees, opens with the following words:
"Notaries public may make but not exceed the following charges for their services:
"* * *"
thus the charging of fees is entirely permissive. This is unlike the requirements for sheriffs, clerks and others as to whom the statute says theyshall collect the fees set out. It is, therefore, our opinion that notaries public are not under any circumstances required to charge fees. Nowhere in the law do we find any prohibition against a person receiving a salary from a public body charging for notarial services if he is also a notary public. It is our conclusion that a notary public who receives a salary from the state government or any other public source, is not paid a salary "in lieu" of notary fees, and further, that he is not required to collect such fees or to pay them into any public treasury.
Very truly yours,
LYLE L. IVERSEN
Assistant Attorney General