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AGO 1954 No. 345 - November 19, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington


1. Legislation leading to the valuation of real and personal property within a county or other political subdivision by the State Legislature or any agency of State Government would be unconstitutional as such tax is a local purpose.

2. An En Banc decision of the Supreme Court remains the authoritative statement of that Court even though a department of the Court may have subsequently decided to the contrary.

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                                                               November 19, 1954

Honorable Donald C. Sampson
Executive Secretary
Legislative Council
Administration Building
University of Washington
Seattle 5, Washington                                                                                                             Cite as:  AGO 53-55 No. 345

Dear Sir:

            In your recent letter which has been previously acknowledged, you requested our opinion as to whether the Washington State Legislature may require a school levy of 14 mills to be applied to the valuation base which is determined by statutory definition or the action of the State Tax Commission.

            It is our conclusion that such an action on the part of the State Legislature would be unconstitutional.


            In your letter you set out in short form certain of the provisions that will be contained in a bill to be recommended by a subcommittee of your Council to the Council for ultimate submission to the Legislature.

            These statements read as follows:

             [[Orig. Op. Page 2]]

            1. Clearly distinguish between establishing appraisal valuations on real and personal property on the one hand, and the taxing function on the other hand.

            2. Provide that the assessed valuation on which the school levy of 14 mills shall apply shall be the valuation established by the local assessor as adjusted by the Tax Commission, or the legislature, to a level which will provide uniformity between counties.

            3. State the fact that education is a paramount responsibility of the State of Washington as provided in the state constitution.  (Art. IX, sec. 1 and 2).

            4. State the fact that local school districts operate as instrumentalities of the state in carrying out this responsibility.

            5. Authorize the school district board to levy up to but not exceeding 14 mills on the valuation as adjusted.

            6. Provide administrative machinery for transmittal of the tax receipts from the levy to the state treasurer, for re‑allocation [[reallocation]]along with any other school funds.

            The effect of the above statements would be that the state would reserve, either through its Legislature or through one of its state agencies, namely the tax commission, the ultimate authority to set property valuations both real and personal for school tax purposes in each of the counties of the state and would allocate to the applicable county and school district officers the levying and collection process.

            We think no citation of authority is needed to sustain the proposition that the legislative branch of a sovereign state has the exclusive power of taxation.  We also think that no precedent need be relied on to sustain the statement that such exclusive legislative power is, of course, subject to constitutional limitations.

            The Constitution of the State of Washington, Article XI, section 12 reads as follows:

             [[Orig. Op. Page 3]]

            "The legislature shall have no power to impose taxes upon counties, cities, towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes."

            Your letter makes it clear that the funds achieved by the 14 mill levy will ultimately be allocated to the various school districts within the state.  Our inquiry then becomes ‑ Does the proposed act amount to an attempt by the state to exercise a power that is banned by the above quoted constitutional provision?

            In the case ofState ex rel. Tacoma School Dist. v. Kelly, 176 Wash. 689 (1934) the court had before it the following factual situation:

            The assessor of Pierce County had fixed the assessed valuation of all property in that county for purposes of taxation at $55,780,370 which was alleged to be only 43% of the true and fair value of such property.  The State Board of Equalization found that the $55,780,370 figure was in fact only 43% of the assessed valuation of said property and had thus raised the amount to some $64,860,895 figure.  The board of directors of the plaintiff district had met and passed a resolution fixing the assessed valuation in Pierce County to be the $64,860,895 figure.  The directors of the school district adopted a budget in which the estimates of expenditures were fixed upon the basis of the $64,860,895 figure.  The resolution, budget and estimates of expenditures were duly certified to the county commissioners.  The county commissioners refused to make a levy of ten mills on such $64,860,895 assessed valuation.  The demurrer having been sustained to the affidavit in support of the school district's application for a writ of mandate, which application contained the above facts, the school district appealed.

            In passing upon the point with which we are here concerned, the Supreme Court said on pages 691 and 692:

            "It is contended, however, that the plaintiff district is entitled to a levy of ten mills on the latter  [[Orig. Op. Page 4]] amount, because that is the assessed valuation as fixed by the state board of equalization for state purposes.  Appellant conceives that the case of State ex rel. Showalter v. Cook, 175 Wash. 364, 27 P. (2d) 1075, supports this contention.  This is a misapprehension of the holding in that case.  It was there held that the state board of equalization, in equalizing assessments and levying taxes for state purposes, is not bound by the valuations as fixed by the county assessors.  In other words, forstate purposes the state board of equalization has the power to fix the assessed valuation of taxable property in the various counties at fifty per cent of the true and fair value of such property.  It does not follow, however, that this valuation may be used as a basis for levy of taxes for local purposes.  On the contrary, it cannot be, in view of Article XI, § 12, of the constitution which provides:

            " 'The legislature shall have no power to impose taxes upon counties, cities, towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.'

            "InState ex rel. State Tax Commission v. Redd, 166 Wash. 132, 6 P. (2d) 619, construing chapter 106, Laws of 1931, p. 306 (Rem. Rev. Stat., § 11301 et seq.), in the light of this provision of the constitution, we said:

            " 'Manifestly, the legislature not possessing such power, the state tax commission (an agency created by the legislature) can not legally assess property within the limits of a county for county purposes.  It  [[Orig. Op. Page 5]] follows that the state tax commission is likewise without authority to reassess such property for the same purpose.

            "'If the local authorities only, as we hold, have the power to list and value property within the county for local taxation purposes, no other authorities can legally relist and revalue that property for local taxation purposes.

            "'Insofar as it provides that the state tax commission may reassess for local taxation purposes property within a county, city, town, or other municipal corporation, chapter 106, Laws of 1931, is unconstitutional.'

            "It seems clear to us that to permit the appellant to make its levy on the basis of the valuation fixed by the state board of equalization would, in effect, amount to an imposition of taxes by the legislature upon counties, cities, towns or other municipal corporations" for local purposes.  The demurrer to the affidavit was properly sustained."

            It should be noted that the above opinion was en banc, before all nine Judges of the Supreme Court.  Six of the Judges concurred completely with the writer of the opinion and the other two Judges concurred in the result.

            We have not lost sight of the case of Newman v. Schlarb, 184 Wash. 147 (1935) in which, after discussing the effects of Article IX, sections 1 and 2 of the Washington State Constitution which sections provide that education is the paramount duty of the state, it was directly held that the purpose of education was a state rather than a county purpose, in the following language appearing at pages 154 and 155:

            "We hold, therefore, that the purpose of education is not merely a county purpose, but rather a state purpose, with local benefits to the county, meeting both state and local needs.  The statute, Rem. 1935 Sup., § 4936, does not impose a tax upon the county  [[Orig. Op. Page 6]] for county purposes, but for state purposes.  Hence, the statute does not violate Art. XI, § 12, of the state constitution."

            It should be noted that the Newman case was before a department of the Washington State Supreme Court and was thus the decision of only five Judges, all of whom concurred.  It should be also noted in the Newman case that it was decided almost two years later than was the case ofState ex rel Tacoma School Dist. v. Kelly.

            Despite the fact that the departmental decision in the Newman case is later than the en banc decision in the case of State ex rel. Tacoma School Dist. v. Kelly, we feel that in considering decisions of our Supreme Court we must follow anen banc decision until the same has been authoritatively overruled.  The Supreme Court of the State of Washington in the case of In Re Yakima Fruit Growers Ass'n 20 Wn. (2d) 202, said on page 212:-

            "As previously stated herein, the Cowiche case was an En Banc decision, while theBeebe case was a departmental holding.  The rule of decision declared in the Cowiche case is binding on this court until authoritatively overruled.  Mattingly v. O. W. R. & N. Co. 153 Wash. 514, 280 Pac. 46."

            Again in the case ofDupea v. Seattle, 20 Wn. (2d) 285 at page 291 the Court said:

            "On appeal here, it was vigorously argued that a driver who failed to miss a standing car under such circumstances was obviously guilty of contributory negligence.  A majority of this court, sitting En Banc, held, however, that he was not, since he was faced with an emergency.  That being the holding of the courtEn Banc, it is binding upon us, * * *"  (Emphasis ours).  See also 21 C.J.S. 346, Courts § 197, and cases cited therein.

             [[Orig. Op. Page 7]]

            We have also considered the rule that is ancillary to the one just expressed.  Namely, that if language used in an opinion was unnecessary to the conclusion it is dictum and will not be considered authoritative.  State ex rel. Todd v. Yelle, 7 Wn. (2d) 443 (1941); Gilmour v. Longmire, 10 Wn. (2d) 511 (1941);D'Amico v. Conguista, 24 Wn. (2d) 674 (1946);In Re Levas' Estate, 33 Wn. (2d) 530 (1949).

            We do not believe that the above quoted language from the case ofState ex rel. Tacoma School Dist. v. Kelly is dictum as we believe it was necessary to the decision of the case and even it were not, the question presented in the above quoted language was clearly in the case and thus could not be dictum.  In the case ofSavage v. Ash, 86 Wash. 43 (1915) it was said on page 46:

            "It may be that the case could have been rested on the first ground suggested in the opinion, namely, that the fraud alleged was not proven, but both questions were clearly in the case, and simply because the court decided both, does not necessarily mean that the one or the other is dictum."

            Thus, as above indicated, it is our opinion that any act requiring a school levy of 14 mills to be applied to a valuation base which is determined by statutory definition and the action of the State Tax Commission, would be unconstitutional.

            In view of our opinion on the above inherent feature of the suggested legislation we have not deemed it necessary to consider or to express any opinion as to any other possible constitutional objections.

             [[Orig. Op. Page 8]]

            We sincerely hope that the above will be of service to you.

Very truly yours,

Attorney General

Assistant Attorney General

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