OFFICES AND OFFICERS - COUNTY ‑- TREASURER ‑- DUTY TO CHECK TAX ROLLS AT REQUEST OF MORTGAGEE AND TO PREPARE AND SIGN STATEMENT OF TAX OWING ‑- FEE ‑- LIABILITY

OFFICES AND OFFICERS ‑- COUNTY ‑- TREASURER ‑- DUTY TO CHECK TAX ROLLS AT REQUEST OF MORTGAGEE AND TO PREPARE AND SIGN STATEMENT OF TAX OWING ‑- FEE ‑- LIABILITY.

(1) It is the duty of the county treasurer to check the tax rolls upon the request of mortgagees and to give a statement as to what real property taxes, if any, are owing on property in which the mortgagee has an interest.

(2) Same:  The treasurer may not charge any fee for such service.

(3) Same:  The treasurer would be subject to liability if he fails to exercise reasonable care in making a search.

(4) Same:  There is no duty upon the treasurer to sign the report he prepares, but because liability may arise as the result of negligently prepared reports, it may be advisable to sign the report for authentication purposes.

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                                                                   April 22, 1963

Honorable Lincoln E. Shropshire
Prosecuting Attorney
Yakima County
Court House
Yakima, Washington

                                                                                                                Cite as:  AGO 63-64 No. 19

Dear Sir:

            In your letter previously acknowledged, you have requested the opinion of this office on the following questions:

            (1) Is it the duty of the county treasurer to check the tax rolls upon the request of mortgagees and to give a statement as to what real property taxes, if any, are owing on property in which the mortgagee has an interest?

            (2) If it is the duty of the county treasurer to give such a report to mortgagees, what fee, if any, should be charged for this service?

            (3) What possible liability is imposed on the county treasurer in the making of these reports?

             [[Orig. Op. Page 2]]

            (4) If it is the duty of the county treasurer to give such a report, is it necessary that he sign a statement that the taxes owing are as reported?

            (5) If it is not the duty of the treasurer to give such a report, may he turn the request over to clerks in his office to search the records and make the requested reports on their own time, the clerk to be paid for this service by the mortgagee requesting the report?

            The manner in which we have answered your first four questions in the analysis renders unnecessary an answer to your fifth question.

                                                                     ANALYSIS

            (1) Regarding your first, second and third questions, our search discloses no legal authority in opposition to the conclusions reached in our previous opinion to the prosecuting attorney of Spokane county, May 12, 1916 [[1915-16 OAG 303]].  In that opinion we concluded that it is the duty of the county treasurer to check the tax rolls upon the request of mortgagees, to give a statement as to what real property taxes, if any, are owing on property on which the mortgagee has an interest, without cost or charge; and that the treasurer is liable if he fails to exercise reasonable care in making such a search.  We affirm those conclusions, finding further support for them as follows: (1) The tax rolls are public records and the county treasurer, being the custodian thereof, must render them available to interested parties.  RCW 84.56.330 expressly provides that the treasurer is ". . . the sole collector of all delinquent taxes and all other taxes due and collectible on the tax rolls of the county: . . ."  RCW 84.56.310 and RCW 84.56.330 provide for the payment of property taxes by any person having an interest in an estate or claim to real property, including owners, mortgagees, and others.  It would be inconsistent with the intention of those statutes, and in derogation of that right, to say that such owner, mortgagee or other interested person should satisfy himself as to the existence of unpaid taxes, without any assistance from the treasurer who is the official keeper of the rolls.

            (2) The law does not provide a fee to the treasurer for the service in question.  With respect to fees it is settled law that

            "Fees are collectible only when and to the extent authorized by law, . . ." 67 C.J.S. § 90, p. 328.

            There is specific statutory authority for the collection of certain fees by county treasurers.  See, for instance, RCW 36.18.045, which provides as follows:

             [[Orig. Op. Page 3]]

            "County treasurers shall collect the following fees for their official services:

            "For preparing and certifying copies, with or without seal for the first legal size page, two dollars, for each additional legal size page, one dollar."

            The rule of statutory construction, expressio unius est exclusio alterius‑-that the expression of one thing excludes others not expressed ‑-is applicable.  See,State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951).  There being no other statutory authority for fees, the county treasurer may not impose any charge or fee for requests to search the record.

            The problem of noncompensated record searches has been before the courts before.  Notwithstanding the argument that the costs of performing these searches create a heavy economic burden on public offices, the courts have held almost unanimously that no fees are collectible unless authorized by statute.  See,Furnia v. Grays Harbor County, 158 Wash. 619, 291 Pac. 1111 (1930);McQuay, Inc. v. Hunter, 234 Miss. 84, 105 So. (2d) 376 (1958); Mechem on Public Officers, § 738 (1890), and footnotes thereto.  We suggest therefore that any necessary corrective action be directed towards the legislature.

            With reference to your third question regarding possible liability of the county treasurer in making these reports, the opinion expressed in 16 AGO 801 [[1915-16 OAG 303?]]is still applicable.  A copy of this opinion is enclosed for your information.  It was our opinion that a ministerial officer is liable if he fails to exercise reasonable care in making a search.  This view is further expressed in Mechem on Public Officers, §§ 661, 664 and 799 (1890).

            Regarding your fourth question, we cannot answer in the affirmative or negative, as a legal matter.  There is no statutory or common law duty that requires a county treasurer to sign a statement that the taxes owing are as reported.  However, inasmuch as liability may arise as a result of negligently prepared reports, it may be advisable for reports to be signed, if for no other reason than merely authentication of the report.

            Having concluded that the county treasurer has the duty of checking the tax rolls upon the request of a mortgagee, without cost or charge, your fifth question requires no answer.

             [[Orig. Op. Page 4]]

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HERBERT GELMAN
Assistant Attorney General