OFFICES AND OFFICERS - COUNTY - COMMISSIONERS - AUTHORITY TO COMPEL PORT TO DEFRAY ADMINISTRATIVE COSTS OF REFUNDING TAXES ILLEGALLY ASSESSED AND COLLECTED

OFFICES AND OFFICERS - COUNTY - COMMISSIONERS - AUTHORITY TO COMPEL PORT TO DEFRAY ADMINISTRATIVE COSTS OF REFUNDING TAXES ILLEGALLY ASSESSED AND COLLECTED.

King County may not legally compel the Port of Seattle to defray the administrative costs of refunding taxes illegally assessed and collected for the Duwamish Industrial Survey.

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

                                                              September 26, 1960

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington                                                                                          Cite as:  AGO 59-60 No. 144

Dear Sir:

            By letter, previously acknowledged, you have requested the opinion of this office on the following question:

            May King County legally compel the Port of Seattle to defray the administrative costs of refunding taxes illegally assessed and collected for the purpose of the Duwamish Industrial Survey?

            We answer your question in the negative.

                                                                     ANALYSIS

            You have advised us that the tax in question was collected under the ostensible authority of chapter 265, Laws of 1957.  The proposed use of the tax, as authorized in that act, was held unconstitutional by the supreme court of this state in Hogue v. Port of Seattle, 54 Wn. (2d) 799, 341 P. (2d) 171 (1959).

            At the outset, it should be borne in mind that municipal authorities can exercise only the powers expressly granted to them by the legislature, or those necessarily implied from granted powers.  If there is a doubt as to whether the power is granted, it must be denied.  Pacific First  [[Orig. Op. Page 2]] Federal Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347, 353, 178 P. (2d) 351 (1947).

            The legislature has expressly imposed upon county treasurers certain duties with regard to the funds of various taxing districts, including port districts.  RCW 84.56.020 makes him "the receiver and collector of all taxes extended upon the tax rolls of the county, whether levied for state, county, school, bridge, road, municipal or other purposes, . . ."  See also, RCW 36.29.100 and 36.29.120, making the county treasurer ex officio tax collector for all cities.

            The county treasurer is also the custodian of the funds of some taxing districts, and particularly of port districts.  RCW 53.36.010 provides as follows:

            "The treasurer of the county in which a port district is located shall be treasurer of the district.  All district funds shall be paid to him as such treasurer and shall be disbursed by him upon warrants signed by a port auditor appointed by the port commission, upon vouchers approved by the commission."

            However, at least with regard to port districts, our research discloses no statute expressly authorizing extra compensation either to the county or its treasurer for the performance of the latter's duty as port district treasurer.

            The question remains, then, as to whether that power is necessarily implied from the powers expressly granted.  Finding no cases directly in point on the subject, we turn to the parallel situation, where the county treasurer isex officio collector of taxes or other revenues for other municipal corporations.

            As we have pointed out earlier, the county treasurer is ex officio tax collector for the various political subdivisions of the state.  RCW 36.29.100 specifically makes him the collector of city taxes for cities of the first class within his county.  RCW 36.29.150 requires each city of the first class to pay to the county one thousand dollars per annum for clerk hire.

            In State ex rel. Olmstead v. Mudgett, 21 Wash. 99 (1899), the supreme court of this state considered the validity of chapter 51, Laws of 1897, requiring the county treasurer to collect certain assessments for street improvements certified to him by cities of the first class within his county.  The court held that the act was not unconstitutional on the grounds that it rendered taxation unequal and ununiform by providing no method of reimbursement to the county for its expense in collecting such assessments,  [[Orig. Op. Page 3]] and thus tending to throw the burden of cost upon the general taxpayer of the county, whose property was not benefited by the special improvement.  In its reasoning, the court commented upon an act now codified as RCW 36.29.100 and 36.29.150, supra, as follows:

            ". . .In State ex rel. Seattle v. Carson, 6 Wash. 250 (33 Pac. 428), we held constitutional the act of March 9, 1893 (Laws of 1893 p. 167), which made the county treasurer of a county in which there is a city of the first classex officio tax collector of all taxes levied by such city, other than special assessments and special taxes for local improvements.  It is true that act provided that the city should pay the county treasurer for such services a salary of five hundred dollars, and to the county one thousand dollars per annum for clerk hire.  The case, however, was not made to depend upon this fact, nor do we think it ought to affect the principle decided . . ." (Emphasis supplied.)

            Thus in the absence of any constitutional or statutory requirement that reimbursement be made, it is difficult to imply such a requirement.  The conclusion is in accord with what appears to be the majority of cases from other jurisdictions on this point, summarized in 114 A.L.R. 1098, 1100 (Annotation) as follows:

            "Because of the commonly prevailing statutory provisions on the subject, there is found little authority on the question whether, in the absence of statutory provisions specifically allowing or denying it, a municipality or other governmental unit, or its officers, have a right to compensation or reimbursement out of the special taxes or assessments collected for another governmental unit, for the services rendered or expenses incurred by them in the collection of such taxes or assessments.  Most of what authority there is on the question, however, sustains the view, directly or inferentially, that no such right exists in the absence of statute."

            And, although the following cases are not within the particular scope of that annotation, the same authority lists the following which apply the same rule where general taxes (as distinguished from special taxes or assessments) are involved: Moscow v. Latah County, 5 Idaho 36, 46 Pac. 874 (1896); Holtsclaw v. State, 46 Ind. App. 238, 92 N.E. 121 (1910); Best Foods v. Christensen, 75 Utah 392, 285 Pac. 1001 (1930).

            Although the facts of the foregoing cases are slightly different from those presented here, we see no distinction in principle.  If a county has no  [[Orig. Op. Page 4]] implied power, in the absence of express statutory authority, to demand reimbursement for expenses in the performance of the county treasurer's duty as collector of revenue for other taxing districts, in our opinion it clearly follows that a county has no implied power to require reimbursement for expenses in keeping such revenue in its treasury or for giving it back to the taxpayers when required to do so.  At least there is a doubt as to the county's power in this regard, and under the rule of Pacific First Federal Savings and Loan Association v. Pierce County, supra, the power must therefore be denied.  Accordingly, we concur with the opinion of your office to the King County commissioners on December 31, 1959, that the county is not authorized to require the port district to assume the expense in question.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General