OFFICES AND OFFICERS - COUNTY - SHERIFF - MOTOR VEHICLES - LIENS - RECOVERY AND DISPOSITION OF STOLEN VEHICLES

OFFICES AND OFFICERS - COUNTY - SHERIFF - MOTOR VEHICLES - LIENS - RECOVERY AND DISPOSITION OF STOLEN VEHICLES.

(1) Where a sheriff finds a reported stolen vehicle abandoned on a public highway or at some other place in his county, he may, in the absence of available public equipment and facilities for such purposes, employ the operator of a private towing and storage service to tow and store such vehicle until the owner appears and claims it.

(2) In such a case, the private towing and storage operator who has been thus employed may assert a lien in the vehicle against the owner for payment of such towing and storage charges as are due at the time the owner appears to claim the vehicle.

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                                                                February 20, 1968

Honorable Gilbert Valley
Prosecuting Attorney
Lewis County
P.O. Box 775
Chehalis, Washington 98532

                                                                                                                   Cite as:  AGO 1968 No. 9

Dear Sir:

            By letter previously acknowledged, you have requested our opinion on two questions concerning the recovery and disposition of stolen vehicles.  We paraphrase your questions as follows:

            (1) Where a sheriff finds a reported stolen vehicle abandoned on a public highway or at some other place in his county, may he, in the absence of available public equipment and facilities for such purposes, employ the operator of a private towing and storage service to tow and store such vehicle until the owner appears and claims it?

            (2) If question (1) is answered in the affirmative, may the private towing and storage operator who has been thus employed assert a lien in the vehicle against the owner for the payment of such towing and storage charges as are due at the time the owner appears to claim the vehicle?

             [[Orig. Op. Page 2]]

            We answer both questions in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            RCW 46.52.110 contains the following provision with respect to the duty of a sheriff or other police officer upon finding an abandoned vehicle within his jurisdiction:

            "It shall be the duty of the sheriff of every county, the chief of police or chief police officer of each incorporated city and town, members of the Washington state patrol and constables to report to the chief of the Washington state patrol all vehicles found abandoned on a public highway or at any other place and the same shall be taken into the custody of the sheriff of the county wherein found abandoned and stored and the same shall, for the purposes of listing the same, be considered as a recovered vehicle. . . ."

            This duty clearly applies in the case of any abandoned vehicle, irrespective of whether it has been reported as stolen in the manner set forth in earlier paragraphs of this same statute.1/   However, the statute contains no directions as to how this duty is to be performed, in terms of the manner in which the abandoned vehicle is to be taken into custody and stored until disposed of as provided for in ensuing sections of RCW 46.52.110.  Accordingly, the applicable rule to be applied is the rule which was stated by our court inState ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 585, 98 P.2d 985 (1940), as follows:

            ". . . It is a well recognized rule that a general grant of power or statutory direction to perform official duties, unaccompanied by  [[Orig. Op. Page 3]] definite directions as to how the power is to be exercised or the duty performed, implies the right and duty to employ the means and methods necessary to comply with the statutory requirements.  [Citations omitted.]"

            Where public equipment and facilities are not available for the towing and storage of abandoned vehicles, it follows from application of this rule to the statute in question that the sheriff or other police officer who has recovered the vehicle has implied authority to employ such means and methods as are necessary to carry out the statutory direction including, in our opinion, the authority to employ private towing and storage services.

            This conclusion, it is to be noted, finds further support in one of the ensuing provisions of RCW 46.52.110, supra, itself.  In the case of abandoned vehicles which have not been reported as stolen, the statute provides for their sale at a public auction in the event that they are not claimed by the registered legal owner within twenty days after notice to him that his vehicle has been found abandoned.  With respect to distribution of the proceeds arising from such sale, the statute provides:

            ". . . Any surplus accruing at said sale after deducting the cost of placing the vehicle in custody, advertising and selling the same, shall be held for the owner a period of ten days and if not claimed by the expiration thereof shall be certified one half to the county treasurer of such county to be placed in the county current expense fund and one half to the state treasurer to be credited to the highway safety fund.

            "If no bids are received at said sale the sheriff shall deliver the vehicle to the garage operators who may be entitled to reimbursement for towing and storing the vehicle.  In this event such garage operators may dispose of all or any part of the vehicle as they may determine."

            It seems quite obvious from this portion of the statute that  [[Orig. Op. Page 4]] the legislature contemplated that the sheriff or other police officer, in taking custody of an abandoned vehicle, might find it necessary to employ the services of a private towing and storage operator, and made these provisions for utilizing the vehicle itself, or the proceeds derived from its sale, as a source for payment of his charges if other provision for their payment has not been made.

            Question (2):

            By your second question you have asked whether the operator of the private towing and storage service who is thus employed may assert, as against the owner of the stolen abandoned vehicle, a lien for payment of his towing and storage charges.  The problem here in the past has been that RCW 46.52.110, supra, which as we have seen gives the private operator a right to share in the proceeds of sale of an abandoned vehicle, does not to this extent apply to an abandoned vehicle which has been reported as stolen.  This deficiency was pointed out in AGO 59-60 No. 16, copy enclosed, in which we said, with respect to the then existing state of the law,

            "If an owner appears and claims the vehicle before sale by the sheriff, the garage owner has a lien if the vehicle was stored by the owner (not necessarily the registered owner) or an authorized agent.  In other words, a garage owner does not have a lien for storage where the vehicle was stolen and placed in storage.  In addition, when the sheriff takes a vehicle into custody and places it in the hands of the garage for storage and safekeeping, the garage owner does not thereby acquire a lien on the vehicle as he is not acting as a public custodian, but only as custodian of property for the sheriff.  The only claim he has in such a case is against the sheriff on his contract for acting as custodian."

            This conclusion was reached by implicit application of the general rule that, absent statutory authority, a garage keeper who stores a vehicle pursuant to the direction of a public officer may not assert a lien against the owner of the vehicle.  See, annotation, "Lien for Storage of Motor Vehicles," 48 A.L.R. 2d 894, at page 912, which also points out that where  [[Orig. Op. Page 5]] a statute does authorize a lien under such circumstances, it may be asserted against all persons, including the true owner, in the manner provided for the by statute.  Moral Insurance Company v. Cooksey, 285 P.2d 223 (1955) (Oklahoma); In re Parking Service, 232 La. 133, 94 So.2d 7 (1957);Hodge v. Sharpe, (Kentucky) 287 S.W.2d 596 (1956); Bentinck v. Menotti, 97 Cal.App. 412, 275 Pac. 850 (1929).