COUNTY TREASURER -- DUTY TO DISTRAIN FOR PERSONAL PROPERTY TAX -- AUTHORITY TO CHARGE REALTY FOR PERSONAL PROPERTY TAX -- LIABILITY FOR PENALTY AND LOSS THROUGH NON-FEASANCE [[NONFEASANCE]] -- REM

COUNTY TREASURER --  DUTY TO DISTRAIN FOR PERSONAL PROPERTY TAX --  AUTHORITY TO CHARGE REALTY FOR PERSONAL PROPERTY TAX --  LIABILITY FOR PENALTY AND LOSS THROUGH NON-FEASANCE [[NONFEASANCE]] --  REMEDIES FOR LOSS, PENALTY OR NON-FEASANCE [[NONFEASANCE]].

Treasurer:
1. Cannot refuse to distrain where facts require;
2. May charge realty in addition but not as alternative;
3. Is subject to penalty for non-feasance [[nonfeasance]]on statutory complaint;
4. Is personally liable in addition for loss to county through his non-feasance [[nonfeasance]]in civil action by prosecuting attorney;
5. May be compelled to perform duty by mandamus after demand and refusal, by prosecutor, citizen, or in extreme case by attorney general or governor.

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

                                                                    July 16, 1953

Honorable Don G. Abel
Prosecuting Attorney
Becker Building
Aberdeen, Washington                                                                                                                Cite as:  AGO 53-55 No. 94

Dear Sir:

            You request our opinion whether

            (1) the County Treasurer may refuse to distrain for personal property taxes and in lieu thereof charge the personal property tax against real property.

            (2) If not, what civil liabilities has the County Treasurer incurred, particularly if loss to the County has occurred.

             [[Orig. Op. Page 2]]

            (3) What various remedies exist.

            We conclude:

            (1) The Treasurer has no such discretion; and

            (2) depending upon the facts, the Treasurer is liable:

                        (a) for statutory nonfeasance penalties, and

                        (b) personally, for loss to the taxing bodies.

            (3) Various remedies are:

                        (a) Statutory complaint for the penalty;

                        (b) a civil action by the prosecuting attorney for the loss (or in extreme instances the Attorney General); and

                        (c) a writ of mandamus

                        (i) by the prosecutor;

                        (ii) by a citizen after a demand and refusal of action by the prosecutor;

                        (iii) or in extreme instances by the Attorney General.

                                                                     ANALYSIS

            I. AUTHORITY TO DELAY DISTRAINT

            (a) Necessity of Immediate Distraint:

            Relative to the collection of personal property taxes RCW 84.56.070 (PTC sec. 252) provides:

            "On the fifteenth day of February, succeeding the levy of taxes, the county treasurer shall proceed to collect all personal property taxes.  He shall give notice by  [[Orig. Op. Page 3]] mail to all persons charged with personal property taxes, andif such taxes are not paid before they become delinquent, he shall forthwith proceed to collect them.  If he is unable to collect themwhen due heshall prepare papers in distraint * * * and heshall without demand or notice distrain sufficient goods and chattels belonging to the person charged with such taxes to pay them, with interest at the rate provided by law from the date of delinquency, together with all accruing costs."  (Emphasis supplied)

            Such taxes become delinquent after

            "the thirtieth day of April in each year."  (RCW 84.56.020 ‑ PTC sec. 248)

            The duty can hardly be more specific to "forthwith" collect personal property taxes when due.  "Forthwith" means "immediately" or "without delay, "Webster's New Inter. Dict. (2d Ed., 1939) 994.

            We fully agree with and advise you that the Treasurer must forthwith distrain and sell sufficient personal property to pay the personalty taxes.  He has no authority to grant an extension of time since the statute itself makes the tax due and payable on a date certain.  However, the Treasurer does and must have a reasonable period of time for the carrying out of the distraint process particularly when a large number of delinquencies exist.  A period of time necessary to abona fide effort to distrain is of course valid.

            (b) Charging the Realty:

            Pursuant to RCW 84.60.040 (PTC sec. 293) the county treasurer, when "in his opinion" it is "necessary," may charge the personalty tax against real property.  This is in no sense a substitute manner of collection.  Rather, it provides additional protection to the county.  It is not a method by which the Treasurer, in his discretion, may extend the time for payment of personal taxes.  Thus, even though the realty of the taxpayer is charged with the tax, the Treasurer is still charged with the duty to "forthwith" collect and must in good faith attempt to distrain.

             [[Orig. Op. Page 4]]

            The reason is clear.  If the collection of personalty taxes must pend the tax collection procedures applicable to real property, the tax, instead of being collected forthwith, will remain uncollected for up to five years, RCW 84.64.030 and 84.64.040.

            Taxation is but the proportional contribution of citizens to the support of their government.  If some pay less, others must pay more.  Oklahoma Tax Commission v. United States, 319 U.S. 598, 609 (1943).  The budgeted expenses and obligations of counties, municipalities, and other taxing districts are based upon the tax revenues that will be collected.  Even as you and I, they may not meet their obligations with uncollected moneys.

            Such delayed collection as you mention not only can result in a loss but a basic unfairness.  Taxpayers who have real property obtain an extension of time to pay their personal property tax not accorded to others.  Such is contemplated neither by constitution nor statute.

                        CIVIL LIABILITY OF COUNTY TREASURER

            (a) Statutory Nonfeasance Penalties:

            RCW 84.56.410 (PTC sec. 286) provides

            "Every * * * county treasurer who in any case refuses or knowingly neglects to performany duty enjoined on him with respect to taxation, * * * shall, for every such neglect, * * * pay to the state not less than two hundred nor more than one thousand dollars, at the discretion of the court, * * *" (Emphasis supplied)

            This penalty shall be recovered in any court of competent jurisdiction upon the complaint of

            "any citizen who is a taxpayer;"

            and

            "the prosecuting attorney shall prosecute such suit to judgment and execution."  (Emphasis supplied)

             [[Orig. Op. Page 5]]

            The penalties apply whether or not the county has actually suffered loss.  Thus the penalties apply if personalty taxes are notforthwith collected, by distraint if necessary, unless legal justification for non-action [[nonaction]]exists.

            The presumption which we all do and should indulge, until the contrary is shown, is that public officials perform their duty, 3 Cooley, Taxation, (4th Ed. 1924) sec. 1011.

            (b) Civil Liability:

            If the county suffers a loss by virtue of the treasurer's failure to perform his duty, he is personally liable for such loss.  Pierce County v. Newman, (treasurer) 26 Wn. (2d) 63 at 66, 173 P. (2d) 127 (1946):

            "Upon the broad ground of public policy, persons charged with handling funds should be held to strict accountability for such funds irrespective of the cause of their loss, hence it was unimportant that respondent treasurer is not charged with personal conversion of the funds lost by the county."

            The court further states:

            "* * * If the county treasurer refuses or neglects to collect any taxes assessed upon personal property where same is collectible, or to file, as required by the statute, the delinquent list and affidavit with the auditor when unable to collect personalty taxes, the treasurer shall be liable for the whole amount of such taxes uncollected."  (Emphasis supplied)

            Such public officers, dealing as they do with public funds, are held to a high degree of accountability.  See alsoSpokane County v. Prescott, (treasurer) 19 Wash. 418, 53 Pac. 661 (1898);Skagit County v. American Bonding Co., (auditor) 59 Wash. 1, 109 Pac. 197 (1910); Hillyard ex rel. Tanner v. Carabin, (city treasurer, engineer and clerk) 96 Wash. 366, 165 Pac. 381 (1917).  The bond is only collateral security to the personal liability of the Treasurer.

             [[Orig. Op. Page 6]]

            On similar tax problems see Pacific National Bank v. Bremerton Bridge Co., 2 Wn. (2d) 52 at 60-61, 97 P. (2d) 162 (1939); Monroe Logging Co. v. Department of Labor and Industries, 21 Wn. (2d) 800 at 803, 153 P. (2d) 511 (1944); and In re Elvigen's Estate, 191 Wash. 614 at 622, 71 P. (2d) 672 (1937).

                        REMEDIES

            Upon the complaint of any taxpayer, the prosecuting attorney should investigate.  If the complaint is accurate, he "shall" prosecute the suit to judgment and execution.  RCW 84.56.410 (PTC § 286).  Upon demand and refusal of the prosecutor to act, a proper suit may lie to require him to bring the action.  State ex rel. Evans v. B. O. F., en banc, 141 Wash. Dec. 120 [[41 Wn.2d 133]](Sept. 2, 1952).  Such an action by a private citizen is but the general duty of his citizenship ‑-in no sense can he be considered an intermeddler.  The presumption of proper performance of duty applies also to the prosecuting attorney.

            If, in an extreme case, the Attorney General learns of a failure of duty not only on the part of the Treasurer but of the prosecuting attorney, we cannot conceive it other than less than our duty, if this office did not institute proper steps.

            The Attorney General's

            "paramount duty is made the protection of the interest of the people of the state"State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433 at 440.  249 Pac. 996 (1926).

            See alsoState ex rel. Clithero v. Showalter, 159 Wash. 519 at 521-522, 293 Pac. 1000 (1930);Sasse v. King County, 196 Wash. 242 at 250, 82 P. (2d) 536 (1938);State v. Gattavara, 182 Wash. 325 at 329, 47 P. (2d) 18 (1935) andReiter v. Wallgren, 28 Wn. (2d) 872, 184 P. (2d) 571 (1947).

            There may even be situations arising where the Governor may act.  State ex rel. Hartley v. Clausen, 146 Wash. 588, 264 Pac. 403 (1928).

                        CONCLUSION

            (1) The county treasurer may not substitute a charge against the realty for his duty to collect personal property taxes immediately by distraint if necessary; (2) In his discretion, where necessary in order to secure payment of the tax, he should charge the realty.  However, this is an additional, not a substitute protection to the county; (3) If the facts of a particular situation disclose that he  [[Orig. Op. Page 7]] has failed to do his duty, he is liable to the penalty provided by RCW 84.56.410, whether or not loss occurs to the county; (4) If the county does sustain loss, he is also personally liable for the amount of the loss.  His bond is but collateral security to his own personal liability; (5) The first and primary obligation to insure proper performance of the Treasurer's duty is imposed upon the Prosecuting Attorney; and (6) In the event of his failure, others may either bring the action themselves or force him to do so.

            The people whom we all serve have a right to good government.  That right is never without a remedy.

Very truly yours,

DON EASTVOLD
Attorney General

JENNINGS P. FELIX
Assistant Attorney General