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AGO 1953 No. 178 - December 03, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington


County commissioners should not levy special tax as authorized by a special school district election if sufficient funds have otherwise become available to meet all budgeted expenditures of the district including those authorized by the election.

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                                                                December 3, 1953

The Honorable James E. Duree
Prosecuting Attorney
Pacific County
South Bend, Washington                                                                                                              Cite as:  AGO 53-55 No. 178

Dear Sir:

            You have requested our opinion as to whether a subsequent accrual of a sum of money to a school district in excess of a sum voted by district electors to be specially levied invalidates the special levy or requires county or district officials to discontinue it.

            It is our conclusion that while the validity of the levy as such is not affected by this accrual, the county commissioners should not levy the tax as authorized by the election if this money which has become available is sufficient to meet all budgeted expenditures including those authorized by the election.


            You relate that a special levy was voted by a school district to raise the sum of $40,000.00, but that a few months after the election timberland within the district was sold by the county commissioners, from which sale the district's prorated share of the proceeds will exceed $40,000.00.  We assume that the affected school district is of the second or third class and thus within the applicability  [[Orig. Op. Page 2]] of RCW Chapter 28.63, and also assume that the sale was of tax-title property and that a bond issue is not involved.

            Concerning levies for second and third class school districts, RCW 28.63.150 states:

            "* * * The board of county commissioners must levy a tax on all the taxable property in the district sufficient to raise the money to meet the necessary expenditures shown by such budget, after deducting the estimated revenues from state and county funds and other miscellaneous sources, together with such cash on hand as has not been voted or allocated for other purposes or is not needed to keep the district free from an interest bearing warrant basis."  (Emphasis supplied)

            Pursuant to the above statute, unless the sale proceeds are needed to keep the district free from an interest bearing warrant basis, those proceeds are available to meet the expenses of the school district's budgeted items including the expenditures authorized by the special election.  The county commissioners should have levied taxes only to the extent necessary to satisfy the requirements of the budget after inclusion of those proceeds.

            Furthermore, it is contrary to the public policy of the state and is unlawful for municipal corporations to accumulate surpluses without legislative sanction.  Pacific First Federal Savings, etc. v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947), and see Weyerhaeuser Timber Co. v. Roessler, 2 Wn. (2d) 304, 97 P. (2d) 1070 (1940).

            While we believe that a proposition adopted by a special election, in which an excess levy is authorized, can be so phrased as to make it mandatory for district and county officials to budget for and execute the designated objective, whether the adopted proposition is mandatory or not, we do not believe such an election makes it mandatory for the county commissioners to make the authorized excess levy if sufficient funds become otherwise available to finance the stated objective.

            In other words, even though accomplishment of the objective may be made mandatory, making the levy to finance the objective is not mandatory if sufficient  [[Orig. Op. Page 3]] funds are available without the necessity of the levy.  The levy, of course, is not effected by the election itself.  It has to be made by the appropriate officials acting on the electors' authorization.  In accord, see 48 AGO 75 [[to Henry W. Wager, Prosecuting Attorney, Kittitas County on January 7, 1948]].

            We conclude that the special election remains valid to authorize a special levy up to the amount of $40,000.00, but, because of RCW 28.63.150 and the rule against accumulation of surpluses, the county commissioners should not make the authorized special levy unless the proceeds of the noticed sale, together with the usual statutory levies, fail to satisfy the requirements of the budgeted expenditures including those authorized by the special election.

Very truly yours,

Attorney General

Assistant Attorney General

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