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AGO 1952 No. 396 - September 08, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

FIRE PROTECTION DISTRICTS ‑- TAXES ‑- MAXIMUM LEVIES

The maximum levy, exclusive of any levy for retirement of general obligation bonds, which may be made by a fire protection district is six mills unless by a special election the voters of the district authorize an excess levy.

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                                                               September 8, 1952

Honorable R. A. Hensel
Prosecuting Attorney
Douglas County
Waterville, Washington                                                                                                              Cite as:  AGO 51-53 No. 396

Dear Sir:

            We have your letter of August 12, 1952, requesting an opinion as to the maximum levy to which a fire protection district is entitled.

            Our conclusion is that the maximum levy, exclusive of any levy for retirement of general obligation bonds, which may be made by a fire protection district is six mills unless by a special election the voters of the district authorize an excess levy.

                                                                     ANALYSIS

            Preliminarily it should be stated that the laws concerning fire protection districts have been frequently changed; consequently, opinions of this office rendered prior to the last legislative enactment have necessarily been relegated to obsolescence.  The answer to your inquiry lies largely in chapter 52.16 RCW.  Pursuant to RCW 52.16.080 through 52.16.120 the electors of a fire protection district may vote to authorize a levy of any size they desire to retire general obligation bonds which are issued for capital purposes or issued to refund outstanding coupon warrants which were originally issued for capital purposes.  This is one distinct levy fire protection districts may make.

             [[Orig. Op. Page 2]]

            Another levy is provided for by RCW 52.16.130 which we shall both paraphrase and quote.  This section states that to carry out the purposes of such districts, their boards are " * * * hereby authorized to levy each year, in addition to the levy or levies provided for the payment" of outstanding bonds and "the levies necessary to pay the principal and interest of any coupon warrants heretofore issued and outstanding" a tax not to exceed two mills.  Provided, further, "That in no case may the total general levy for all purposes, except retirement of general obligation bonds, exceed four mills."  This section permits a two mill levy for general operating expense of the districts in addition to all levies for retirement of outstanding general indebtedness bonds and coupon warrants.  But the proviso places a four mill limit on levies for all purposes except retirement of general indebtedness bonds.  We interpret this to mean that the amount of this operating expense levy, added to the levy which is required for payment on the retirement of outstanding coupon warrants, cannot be in an amount which would make the sum of those two levies greater than four mills, and further, the general levy must, in no event, exceed two mills.  To illustrate, if the levy for the warrants should be three mills, the operating expense levy can be no more than one mill; if the levy for the warrants should be one mill, then the operating expense levy can be no more than two mills.  Also, the levy under this section is subject to proration as provided in RCW 84.52.010 (last paragraph).

            A third fire district levy is provided for by RCW 56.16.140 which states that, and again we paraphrase, "Notwithstanding the limitation of millage contained in RCW 52.16.130" the board is hereby authorized "to levy, in addition to any levy for the payment of the principal and interest of any outstanding general obligation bonds, and levies necessary to pay the principal and interest of any coupon warrants heretofore issued and outstanding" a tax "not to exceed two mills when such levy will not take millage which other taxing districts may lawfully claim and which will not cause the combined levies to exceed the forty mill limitation and such additional levy, or any portion thereof, may also be made when millage of other taxing units is released therefor by agreement with the other taxing units from their authorized levies."

            This section permits an additional two mill levy in excess of the possible four mill levy permitted by the prior section if the levy will not take "millage which other taxing districts may lawfully claim."  So this levy may be added to the tax roll when the combined levies of all the taxing units of the area concerned do not reach the forty mill limit.  While the section says the levy of the fire districts must not take millage which other units "may lawfully claim", it appears that such units cannot "lawfully claim" millage to any extent to which levies for such units have not been made, although said units may nevertheless have been empowered to make levies where none were made or make larger levies than were made.  There can be no "lawful claim" to any millage until the  [[Orig. Op. Page 3]] levy for such millage is actually perfected.  If, after the budgets of all the taxing units have been provided for in the combined levies, the total should be thirty-eight mills, then this additional two mill levy for the fire protection district may be added.  If the combined levies should total thirty-nine mills, then only one mill could be allocated to the fire protection district by this section and, of course, if the combined levies should total forty mills, then no levy under this section could be made unless, pursuant to the last clause of this section, some other taxing unit could be persuaded to release millage from its authorized levy.

            Finally, it must be noted that RCW 84.52.052 permits fire protection districts to make a levy which would bring the aggregate levies of the property within the district above the forty mill limit if in a special election called pursuant to this section the required number of voters of the district approve the excess levy.

            In summary, it appears that the fire protection districts are authorized to make three distinct classes of levies.  The first‑-which has not statutory limit‑-is imposed to retire general obligation bonds.  The second class of levy cannot exceed four mills and is imposed to defray general expenses and retire outstanding coupon warrants.  This class is subject to proration should the combined levy of taxes in the particular area exceed the forty mill limit.  The third class of levy cannot exceed two mills and can be made only when the combined levies of all other taxing units, including the levy made pursuant to RCW 52.16.130, total less than forty mills.  Should the combined levies of all the taxing units total forty mills, this third class of levy may nevertheless be made if the total of the combined levies can be reduced below forty mills by securing from other taxing units a release of their levies.  A levy in excess of the forty mill limit may be made if approved by the voters of the district in a special election.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General

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