COUNTIES ‑- WHETHER IT IS LAWFUL FOR THE BOARD OF COUNTY COMMISSIONERS TO DECLARE AN EMERGENCY FOR THE PURPOSE OF ALLOCATING FUNDS TO RECORD INSTRUMENTS IN A LEGAL MANNER, IF SUCH INSTRUMENTS TO BE...

COUNTIES ‑- WHETHER IT IS LAWFUL FOR THE BOARD OF COUNTY COMMISSIONERS TO DECLARE AN EMERGENCY FOR THE PURPOSE OF ALLOCATING FUNDS TO RECORD INSTRUMENTS IN A LEGAL MANNER, IF SUCH INSTRUMENTS TO BE PUT OF RECORD WERE SUBMITTED TO THE COUNTY AUDITOR IN OTHER THAN THE PRESENT FISCAL YEAR

Where a County Auditor has recorded instruments over a period of years not in accordance with the law, in good faith but erroneously, resulting in the expenditure of additional funds to correct the situation, which has exhausted or will soon exhaust the funds in his current budget which was unforeseen at the time the current budget was adopted, an emergency exists within the meaning of RCW 36.40.140.

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                                                                  August 4, 1952

Honorable Richard A. Perry
Prosecuting Attorney
Ferry County
Republic, Washington                                                                                                              Cite as:  AGO 51-53 No. 362

Dear Sir:

            Receipt is hereby acknowledged of your letter of July 21, 1952, in which you direct our attention to certain facts:

            "* * * Under the authority of Chap. 223, Laws of 1949, Remington 1949, Supp. Sec. 1257-4, the County Auditor of Ferry County microfilmed instruments left in his custody to be recorded.  These instruments were put of record on microfilm only.

            "In my capacity as Prosecuting Attorney of Ferry County, I questioned the legality of this procedure.  On March 4, 1952, your office issued an opinion that instruments to be put of record must be recorded as outlined in the recording statute and that microfilm copy alone did not satisfy the statute.

             [[Orig. Op. Page 2]]

            "The County Auditor of Ferry County has had photographic copies of all the instruments in his office made and is now binding these copies into books.  This procedure will satisfy the recording statute.

            "The expenditure of having the microfilmed copies printed for binding has exhausted or will soon exhaust the funds in the County Auditor's office for such work."

            You request our opinion as to whether it is lawful for the Board of County Commissioners to declare an emergency for the purpose of allocating funds to record instruments in a legal manner, if such instruments to be put of record were submitted to the official charged with recording the same in other than the present fiscal year.

            It is our conclusion that where a county auditor who has recorded documents delivered to him over a period of years in a manner not in accord with the law, but did so in good faith, although erroneously, resulting in the expenditure of additional funds to correct the situation, which exhausted, or will soon exhaust the funds in the current budget for the county auditor's office, which was unforeseen at the time of the adoption of the current budget, that an emergency exists within the meaning of RCW 36.40.140 (Rem. Rev. Stat., § 3997-6).

                                                                     ANALYSIS

            RCW 36.40.140 (§ 6, chapter 164, Laws of 1923; § 2, chapter 143, Laws of 1925, Ex. Sess.; Rem. Rev. Stat. § 3997-6) insofar as it is pertinent here states:

            "When a public emergency, other than such as are specifically described in RCW 36.40.180, and which could not reasonably have been foreseen at the time of making the budget, requires the expenditure of money not provided for in the budget, * * *."

            The portion of the statute quoted above concerns itself with the last budget prior to the happening of the event or occurrence, and specifically whether that event, or occurrence, could, or should have reasonably been foreseen at the time of the adopting of the last budget, regardless of the number of budget periods in which the wrongful practice has been carried on, resulting in an emergency.

             [[Orig. Op. Page 3]]

            The particular factual situation that we are here confronted with would seem to be clearly withinState ex rel. Porter v. Superior Court, 145 Wash. 551, 261 Pac. 90, which upheld an emergency resolution providing funds for the budget of the county sheriff's office which had been exhausted by negligent expenditure.

            In the above cited case the court said:

            "It clearly appears that the funds provided in the regular budget for the sheriff's office had been exhausted; and that, unless funds were provided in the manner directed by the statute, the sheriff's office would necessarily cease to function.  * * *

            "It is not sufficient to say that the sheriff has been remiss.  * * * If an emergency in fact exists, the county commissioners must so find and must provide funds in order that the necessary functions of the governmental agencies under their control shall continue.  Otherwise, we shall have chaos."

            We therefore conclude that where a county auditor who has recorded documents delivered to him over a period of years in a manner not in accord with the law, but did so in good faith although erroneously, resulting in the expenditure of additional funds to correct the situation, which has exhausted, or will soon exhaust the funds in the current budget for the county auditor's office, which was unforeseen at the time of the adoption of the current budget, is an emergency within the meaning of RCW 36.40.140.

Very truly yours,

SMITH TROY
Attorney General

STEPHEN C. WAY
Assistant Attorney General