COURTS ‑- SUPERIOR ‑- CLERKS ‑- FEES ‑- STATE DEPARTMENT OF LICENSES

COURTS ‑- SUPERIOR ‑- CLERKS ‑- FEES ‑- STATE DEPARTMENT OF LICENSES.

Clerks of the superior court may not charge a fee to the state department of licenses for performing the duty required by statute of submitting to the director of licenses certified abstracts of certain traffic convictions and certified records of any judgment for damages rendered with respect to certain traffic offenses.

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                                                                   May 17, 1962

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                              Cite as:  AGO 61-62 No. 136

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office upon a question which we paraphrase as follows:

            May clerks of the superior courts charge a fee to the state department of licenses for certifying thereto abstracts of convictions and records of judgment for damages?

            We answer your question in the negative.

                                                                     ANALYSIS

            Chapter 304, Laws of 1961, establishes a schedule of clerks' fees.  Section 1 thereof provides in material part:

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

            ". . .

            "(8) For executing a certificate, with or without a seal, a fee of two dollars shall be charged."  (As codified in RCW 30.18.020 (8).)

            The question presented is whether or not this statute, which is general in nature and without any express limitation, applies to the state and its agencies.

             [[Orig. Op. Page 2]]

            It has been uniformly held that the state is not to be considered as within the purview of a statute, however general and comprehensive the language thereof, unless expressly named therein, or included by necessary implication.  Commonwealth v. Allen, 235 Ky. 728, 32 S.W. (2d) 42 (1930); State v. City of Milwaukee, 145 Wis. 131, 129 N.W. 1101 (1911);People v. Calif. Fish Co., 166 Cal. 576, 138 Pac. 79 (1913).

            As stated by our supreme court in Port of Seattle v. Inter. etc. Union, 52 Wn. (2d) 317, 321, 324 P. (2d) 1099 (1958):

            ". . . it is a well-established rule of statutory construction that general legislation is inapplicable to the state or its political subdivisions, unless the statute expressly applies to them, or unless they must be included by necessary implication.  [Citations omitted.]"

            Upon the basis of this general rule, it was contended in Dept. of Labor & Industries v. Ayer, 185 Wash. 310, 54 P. (2d) 1019 (1936), that the department of labor and industries was not liable for the cost of the clerk's transcript on appeal.  At page 311 of the opinion the court stated:

            "It will be admitted that the department of labor and industries is an agency of the state and that it is not liable for the costs of the transcript, in the absence of a particular statute authorizing such costs."

            The court, in holding that the department was liable, found that there was no "absence of a particular statute authorizing such costs" and referred to what is now codified as RCW 4.84.170, which provides as follows:

            "In all actions prosecuted in the name and for the use of the state, or in the name and for the use of any county, and in any action brought against the state or any county, and on all appeals to the supreme court of the state in all actions brought by or against either the state or any county, the state or county shall be liable for costs in the same case and to the same extent as private parties."

            Upon the authority of this same statute, it was held in State ex rel. Hamilton v. Ayer, 194 Wash. 165, 77 P. (2d) 610 (1938), that the state  [[Orig. Op. Page 3]] was liable for the clerk's filing fees when commencing an action in superior court, since such fees were properly "costs" of the action.

            RCW 46.52.100 requires clerks of the superior courts to submit to the director of licenses certified abstracts of certain traffic convictions on forms supplied by the director.  Under RCW 46.24.230, it is their further duty to forward to the director a certified record of any judgment for damages rendered with respect to certain traffic offenses.  Neither one of these certifications has any relation to litigation and thus, any charge therefor could not in any sense be deemed to be "costs" as that term is used in RCW 4.84.170, supra.

            Accordingly please be advised that it is the conclusion of this office that clerks of the superior courts may not charge the state department of licenses for certifying abstracts of convictions and records of judgment for damages for the following three reasons:

            (1) Section 1 (8), chapter 304, Laws of 1961, does not expressly apply to the state nor, in our opinion, can it be said that the state is included therein by necessary implication.

            (2) The documents with which we are here concerned have no relation to any "action prosecuted in the name and for the use of the state" or to any "action brought against the state" and therefore any charge for their certification could not be imposed under RCW 4.84.170, supra, as "costs" incurred in an action.

            (3) There exists no "particular" statute authorizing such fees against the state.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE S. STOOKEY
Assistant Attorney General