COURTS ‑- SUPERIOR ‑- CLERKS ‑- STATUTE GOVERNING FEES

COURTS ‑- SUPERIOR ‑- CLERKS ‑- STATUTE GOVERNING FEES.

The clerks of the superior courts, effective June 8, 1961, shall charge $2.00 for the approval of bonds in other than ordinary civil actions or probate proceedings in accordance with the provisions of § 1, chapter 304, Laws of 1961.

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                                                               November 15, 1961

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
Tacoma, Washington

                                                                                                                Cite as:  AGO 61-62 No. 77

Dear Sir:

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

            In view of the fact that § 5, chapter 51, Laws of 1951 (cf. RCW 36.18.020), relating to the fees of clerks of the superior courts, was twice amended by the 1961 legislature, what is the fee to be charged for the approval of bonds in other than ordinary civil actions or probate proceedings?

            In our opinion a fee of $2.00 is to be charged in such cases, for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Prior to amendment by the 1961 legislature, § 5, chapter 51, Laws of 1951 (cf. RCW 36.18.020), read as follows:

            "Clerks of superior courts shall collect the following fees for their official services:  The plaintiff, or other party instituting any civil action or proceeding, or the appellant on appeal from justice court, when the case is entered in the superior court or when the first paper on his part is filed therein, shall pay a fee of five dollars;

            "For defendant, or other adverse party, or any one or more of several defendants or other adverse parties, or interveners, appearing  [[Orig. Op. Page 2]] separately from the others, or a respondent on appeal from justice court, shall pay when his or their appearance is entered in the cause, or when his or their first appearance is filed therein, a fee of three dollars;

            "For preparing and certifying copies, or transcripts of records, with or without seal for the first legal size page, one dollar; for each additional legal size page, fifty cents;

            "For the certifying of copies furnished or transcripts of records furnished which copies or transcripts are not prepared by the clerk, one dollar for the first legal size or smaller page and twenty-five cents for each additional legal size or smaller page;

            [5] "For the entry of judgment or dismissal in all civil actions, with or without costs, three dollars shall be paid if no adverse party has appeared; otherwise six dollars;

            "In probate proceedings, the party instituting such proceedings shall pay, at the time of the filing of the first paper therein, a fee of six dollars; upon the filing of a petition for the sale of real estate, there shall be paid at the time of filing such petition a fee of three dollars; upon the filing of a final account in the settlement of the decedent's estate, there shall be paid a fee of six dollars; for filing any petition to contest a will admitted to probate, there shall be paid a fee of twenty-five dollars;

            "For filing the transcript of a judgment from any United States court held in this state, or from the superior court of another county or from a justice court, the clerk shall collect three dollars;

            "For issuing a commission to take a deposition, the clerk shall collect one dollar, which shall be in addition to other fees in civil matters;

             [[Orig. Op. Page 3]]

            "For approving a bond in an ordinary civil action or in a probate proceeding there shall be no charge; in all other cases the charge shall be one dollar;

            "For taking an affidavit, for filing any paper, not related to or a part of any proceeding, civil or criminal, or any probate matter, required or permitted to be filed in his office for which no other charge is provided by law, the clerk shall collect one dollar."  (Emphasis supplied.)

            This section was twice amended by the 1961 legislative session.

            By chapter 41, Laws of 1961, the legislature merely added a proviso to the fifth paragraph [5] of the section, causing said paragraph to read as follows:

            "For the entry of judgment or dismissal in all civil actions, with or without costs, three dollars shall be paid if no adverse party has appeared; otherwise six dollars:  PROVIDED, That no fee shall be assessed if an order of dismissal on the clerk's record be filed as provided by rule of the supreme court;" (Emphasis supplied.)

            Thus, so much of § 5, chapter 51, Laws of 1951, as established the fee for approval of bonds was in no way altered by chapter 41, Laws of 1961.

            However, by chapter 304, Laws of 1961, and specifically § 1 thereof, § 5, chapter 51, Laws of 1951, was completely rewritten to provide 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.

            "(2) Any party filing the first or initial paper on an appeal from justice court or on any civil appeal, shall pay, when said paper is filed, a fee of fifteen dollars.

             [[Orig. Op. Page 4]]

            "(3) The party filing a transcript or abstract of judgment or verdict from a United States court held in this state, or from the superior court of another county or from a justice court in the county of issuance, shall pay at the time of filing, a fee of five dollars.

            "(4) For the filing of a tax warrant by the tax commission of the state of Washington, a fee of five dollars shall be paid.

            "(5) The party filing a demand for jury in a civil action, shall pay, at the time of filing, a fee of twenty-five dollars, and in the event that the case is settled out of court not less than twenty-four hours prior to the time that such case is called to be heard upon trial, such fee shall be returned to such party by the clerk.

            "(6) For filing any paper, not related to or a part of any proceeding, civil or criminal, or any probate matter, required or permitted to be filed in his office for which no other charge is provided by law, the clerk shall collect two dollars.

            "(7) For preparing, transcribing or certifying any instrument on file or of record in his office, with or without seal, for the first page or portion thereof, a fee of two dollars, and for each additional page or portion thereof, a fee of one dollar.  For authenticating or exemplifying any instrument, a fee of one dollar for each additional seal affixed.

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

            "(9) For the filing of an affidavit for garnishment a fee of five dollars shall be charged.

            "(10)For approving a bond, including justification thereon, in other than civil actions and probate proceedings, a fee of two dollars shall be charged.

            "(11) In probate proceedings, the party instituting such proceedings, shall pay at the time of filing the first paper therein, a fee of fifteen  [[Orig. Op. Page 5]] dollars:  PROVIDED, HOWEVER, A fee of two dollars shall be charged for filing a will only, when no probate of the will is contemplated

            "(12) For filing any petition to contest a will admitted to probate or a petition to admit a will which has been rejected, there shall be paid a fee of fifteen dollars.

            "(13) For the issuance of each certificate of qualification and each certified copy of letters of administration, letters testamentary or letters of guardianship there shall be a fee of two dollars.

            "(14) For the preparation of a passport application there shall be a fee of two dollars.

            "(15) Upon conviction or plea of guilty or upon failure to prosecute his appeal from a lower court as provided by law, a defendant in a criminal case shall be liable for a fee of fifteen dollars.

            "(16) With the exception of demands for jury hereafter made and garnishments hereafter issued, civil actions and probate proceedings filed prior to the effective date of this amendatory act shall be completed and governed by the fee schedule in effect as of January 1, 1959."  (Emphasis supplied.)

            Chapter 41, Laws of 1961, was passed by the House of Representatives on January 26, 1961; by the Senate on February 22, 1961; filed with the secretary of state on February 22, 1961, and signed by the governor on February 27, 1961.  Chapter 304, Laws of 1961, was passed by the Senate on March 6, 1961; by the House of Representatives on March 8, 1961; filed with the secretary of state on March 8, 1961, and signed by the governor on March 21, 1961.  Neither act contained an emergency clause.

            InState ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, 131 P. (2d) 943 (1942), our court held that where two acts are passed at the same session of the legislature amending the same section, the latest enactment becomes law and the earlier act never becomes effective.  However, subsequently, by § 1, chapter 162, Laws of 1955 (cf. RCW 1.12.025), the legislature modified this rule by providing as follows:

             [[Orig. Op. Page 6]]

            "If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each act shall be given effectto the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control."  (Emphasis supplied.)

            Pursuant to this statute, chapters 41 and 304, Laws of 1961, are each to be given effect to the extent that the amendments contained in each act do not conflict.  Obviously, the amendatory language contained in subsection (10) of § 1, chapter 304, Laws of 1961, relating to the fee chargeable upon approval of a bond, does not conflict with the amendment contained in chapter 41, Laws of 1961, (which relates only to fees upon dismissal of civil actions under certain designated circumstances).  Consequently, said subsection (10), § 1, chapter 304, Laws of 1961, is to be given effect.  Therefore, we conclude that as of June 8, 1961, "for approving a bond, including justification thereon in other than civil actions and probate proceedings, a fee of two dollars shall be charged."

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General