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AGO 1968 No. 21 - May 22, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS - COUNTY CLERK - ADDITIONAL $1.00 FEE IN DOMESTIC RELATION CASES.

(1) RCW 36.18.020 (1), as amended by § 9, chapter 26, Laws of 1967, does not apply retroactively; therefore, the additional $1.00 fee collectible in divorce, annulment or separate maintenance actions under the provisions of this 1967 amendment can be collected only in those cases that have been filed subsequent to January 1, 1968 (the effective date of the act).

(2) The additional $1.00 fee provided by § 9, chapter 26, Laws of 1967, must be collected in the case of every divorce, annulment or separate maintenance filed subsequent to January 1, 1968.

(3) Where a county clerk collects an additional $1.00 filing fee provided by § 9, chapter 26, Laws of 1967, and the divorce, annulment or separate maintenance action is not consummated by a court decree, the clerk is without authority to refund any portion of the filing fee.

                                                              - - - - - - - - - - - - -

                                                                   May 22, 1968

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

                                                                                                                 Cite as:  AGO 1968 No. 21

Dear Sir:

            By letter previously acknowledged you have asked the opinion of this office on three questions regarding the additional one dollar filing fee in divorce, annulment, or separate maintenance actions, as provided for by § 9, chapter 26, Laws of 1967.  We paraphrase your questions as follows:

            (1) Does RCW 36.18.020 (1), as amended by § 9, chapter 26, Laws of 1967, apply retroactively so as to make the additional one dollar fee collectible in divorce, annulment, or separate maintenance actions filed prior to January 1, 1968 (the effective date of the act)?

            (2) Must the additional one dollar fee be collected in the case of every divorce, annulment, or separate maintenance action filed subsequent to the January 1, 1968, effective date?

             [[Orig. Op. Page 2]]

            (3) Where the county clerk collects the additional one dollar filing fee and the divorce, annulment, or separate maintenance action is not consummated by court decree, may the clerk refund the additional one dollar provided for under § 9, chapter 26, Laws of 1967?

            We answer questions (1) and (3) in the negative and question (2) in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 26, Laws of 1967, provides for a system of registering marriages and, as well, decrees of divorce, annulment and separate maintenance with the state registrar of vital statistics.  It is not necessary for the purposes of this opinion to describe all of the provisions of the act.  Suffice it to say that § 11 of the act requires that the clerk of the superior court granting a decree of divorce, annulment, or separate maintenance,

            ". . . On or before the tenth day of each month . . . shall forward to the state registrar of vital statistics the certificate of each decree of divorce, annulment, or separate maintenance granted during the preceding month."

            Directly related to this provision is § 9 of the act, which (in so far as is pertinent) amends RCW 36.18.020 (1), relating to filing fees in superior court, to read as follows:

            "Clerks of superior courts shall collect the following fees for their official services:

            "(1) The party filing the first or initial paper in any civil action, including an action for restitution, or change of name, shall pay, at the time said paper is filed, a fee of fifteen dollars:  PROVIDED,That if the action be one of divorce, annulment, or separate maintenance, an additional fee of one dollar shall be paid which shall cover the transmittal of a record of the decree of divorce, annulment, or separate maintenance, if granted, to the state registrar of vital statistics."

             [[Orig. Op. Page 3]]

            It is the proviso, which we have underscored, which comprises the amendment in question.  Under the terms of § 12 of the act, this proviso like the rest of the act became effective on January 1, 1968.

            Question (1):

            Your first question relates to the retroactive effect of § 9, chapter 26, Laws of 1967.  Generally, retroactive operation of a statute is not favored by the courts, and a law will not be construed as retroactive unless the act clearly, by express language or necessary implication, indicates that the legislature intended a retroactive application.  2 Sutherland, Statutory Construction, (3rd ed.) § 2201, p. 115.  See,Bodine v. Dept. of Labor & Ind., 29 Wn.2d 879, 190 P.2d 89 (1948), wherein it is stated at pages 888, 889 as follows:

            "It is the general rule that statutes have no retroactive effect unless the legislative intent is so expressed therein, and we so held in Nelson v. Department of Labor & Industries, 9 Wn.2d 621, 115 P.2d 1014, which follows the general rule of statutory construction announced inHeilig v. Puyallup City Council, 7 Wash. 29, 34 Pac. 164, where we said:

            "'The law is to be construed prospectively, of course, unless by its express or clearly implied terms it is to have a retrospective effect.'

            "InEarle v. Froedtert Grain & Malting Co., 197 Wash. 341, 85 P.2d 264, we said:

            "'It is a fundamental rule of statutory construction that a statute is presumed to operate prospectively and ought not to be construed to operate retrospectively in the absence of language clearly indicating such a legislative intent.  Teed v. Brotherhood of American Yeomen, 111 Wash. 367, 190 Pac. 1005;Hanford v. King County, 112 Wash. 659, 192 Pac. 1013;State ex rel. Chapman v. Edwards, 161 Wash. 268, 295 Pac. 1017;State ex rel. French v. Seattle, 187 Wash. 58, 59 P.2d 914.'

             [[Orig. Op. Page 4]]

            "In construing the medical lien law (Rem. Rev. Stat. (Sup.), § 1209-1 [P.P.C. § 181-1]et seq.), in Layton v. Home Indemnity Co., 9 Wn.2d 25, 113 P.2d 538, we followed the rule that statutes will be construed to be effective in futuro only, unless a contrary intent clearly appears.  We said:

            "'It is now the universally accepted rule that retroactive legislation is looked upon with disfavor, and that statutes will be construed to be effectivein futuro only, unless a contrary intent clearly appears.

            "'"The general rule is that statutes will be construed to operate prospectively only, unless an intent to the contrary clearly appears.  It is said 'that a law will not be given a retrospective operation, unless that intention has been manifested by the most clear and unequivocal expression.'  And in another case [Bauer Grocer Co. v. Zelle, 172 Ill. 407, 50 N.E. 238;Cleary v. Hoobler, 107 Ill. 97]: 'The rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it will admit of no other construction.'  The rule is supported by numerous cases.  [Citations given]. . . . It is always presumed that statutes were intended to operate prospectively, and all doubts are resolved in favor of such a construction."  2 Lewis' Sutherland, Statutory Construction, (2d ed.), 1157, § 642.

            "'. . . It may be conceded that the statute is remedial in its nature, in the sense that it affords an additional remedy for the collection of a debt.  However, the medical lien statute is in derogation of the common law, and, therefore, under the rule obtaining in this state, it is to be strictly construed.

            "'. . . In the absence of any light from the statute itself upon that subject, our only safe course is to follow the rule to which  [[Orig. Op. Page 5]] this court has definitely committed itself, and to hold that, since by its terms no contrary intent clearly appears, the statute is to be given prospective effect only.'"

            A reading of chapter 26, Laws of 1967, does not reveal any express intent by the legislature to give retroactive effect to the fee schedule as set out in § 9.  The legislation is completely silent on this issue.  Thus, we must necessarily presume that the additional one dollar fee to be collected for the filing of divorces, annulments and separate maintenance actions can be collected only in those cases which have been filed subsequent to the effective date of January 1, 1968.

            Question (2):

            Next you have asked whether this additional one dollar fee must be collected in each and every divorce, annulment and separate maintenance action filed subsequent to January 1, 1968.

            Prior to the enactment of § 9, chapter 26, Laws of 1967, supra, there was a mandatory fifteen dollar fee for the filing of an initial paper in every civil action.  RCW 36.18.020 (1).  As we have noted, the only change made to this statute by the 1967 amendment was the addition of the proviso requiring an additional one dollar fee for the filing of a divorce, annulment, or separate maintenance action.

            It is a well-established canon of statutory construction and interpretation that the legislative intent is first to be deduced from what it said, and where the language is plain, there is no room for construction, since meaning will be discovered from the wording of the statute itself.  State ex rel. State Ret. Bd. v. Yelle, 31 Wn.2d 87, 201 P.2d 172 (1948); State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949);Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965).  See, also, 2 Sutherland, Statutory Construction (3rd ed.), § 4502, pp. 316, 317.  Thus, we must presume that the legislature intended what it said in this amendatory language and therefore, conclude that in every divorce, annulment, or separate maintenance action filed, a sixteen dollar filing fee must be collected.

             [[Orig. Op. Page 6]]

            Question (3):

            By your final question you have asked whether, where the county clerk has collected the additional one dollar filing fee and the divorce, annulment or separate maintenance action is not consummated by court decree, the clerk may refund the additional one dollar provided for in the amendment?

            County clerks as elected officials of the respective counties are servants of the counties in which they serve, and as such, have only those powers which have been expressly delegated to them by specific statutory language or by necessary implication therefrom.  See,State ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 98 P.2d 985 (1940), and cases cited therein.

            In the instant case, the county clerk is required by RCW 36.18.020 (1) to collect filing fees in every civil action filed.  We can find no provision in our statutes which would allow a refund of the fees so collected, nor can it be implied from a reading of RCW 36.18.020 (1) that such authority exists.

            Additionally, it should be noted that under the provisions of RCW 36.18.1401/ the county clerk is required to pay into the county treasury monthly the fees so collected.  Thus, for all practical purposes, once the clerk has collected the filing fees as required by RCW 36.18.020 and paid into the county treasury the fees so collected as required by RCW 36.18.140, his official duties and obligations have ended in relation thereto.

             [[Orig. Op. Page 7]]

            Accordingly, we conclude: (1) That the additional one dollar filing fee to be collected as provided under § 9, chapter 26, Laws of 1967, can be collected only in those cases that have been filed subsequent to January 1, 1968; (2) that the additional one dollar filing fee must be collected for every divorce, annulment, or separate maintenance action filed; and (3) that the additional one dollar filing fee in such cases may not be refunded where an action has not been consummated by court decree.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This statute provides:

            "All salaried county officers shall charge and collect for the use of their respective counties, and pay into the county treasury on the first Monday in each month, all the fees now or hereafter allowed by law, paid or chargeable in all cases during the preceding month except such fees as are a charge against the county or state.  No officer may retain to his own use any money paid him by virtue of his office."

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