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AGLO 1973 No. 43 - March 28, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

TAXATION ‑- PROPERTY ‑- PORTS AND PUBLIC UTILITY DISTRICTS ‑- INITIATIVE NO. 44

(1) The twenty mill limitation upon property taxes which is provided for in Initiative No. 44 does not apply to taxes levied by port or public utility districts.

(2) The legislature, notwithstanding Initiative No. 44, may reduce or eliminate the authority of port or public utility districts to levy property taxes.

                                                                   - - - - - - - - - - - - -

                                                                  March 28, 1973

Honorable King Lysen
State Representative, 31st District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 43

Dear Sir:

            By recent letter you have asked for our opinion on certain questions involving the effect of Initiative No. 44 on property taxes levied by port or public utility districts.  We paraphrase your questions as follows:

            (1) Does the twenty mill limitation upon property taxes which is provided for in Initiative No. 44 apply to taxes levied by port or public utility districts?

            (2) If question (1) is answered in the affirmative, does this mean that in allocating said twenty mills between taxing districts, the legislature must, nevertheless, allow port districts and public utility districts to continue levying property taxes at their currently authorized rates of two mills each so that only sixteen mills will remain for allocation between all other taxing districts?

            (3) May the legislature, notwithstanding Initiative No. 44, reduce or eliminate the authority of port or public utility districts to levy property taxes?

            We answer question (1) in the negative and question (3) in the affirmative, thereby rendering consideration of question (2) unnecessary.

                                                                     ANALYSIS

            Initiative No. 44, as approved by the voters at the November 7, 1972, general election, amended RCW 84.52.050 to read as follows:

             [[Orig. Op. Page 2]]

            "Except as hereinafter provided, the aggregate of all tax levies upon real and personal property by the state, municipal corporations, taxing districts and governmental agencies, now existing or hereafter created, shall not exceed twenty mills on the dollar of assessed valuation, which assessed valuation shall be fifty percent of the true and fair value of such property in money.

            "Nothing herein contained shall prohibit the legislature from allocating or reallocating up to twenty mills between the taxing districts of the state and its political subdivisions andnothing herein contained shall prevent levies at the rates provided by existing law by or for any port or power district."  (Emphasis supplied.)

            We have underscored the language of this measure which is determinative of your first question.  Moreover, although the constitutionality of this initiative is currently under attack in litigation now pending before our state supreme court,1/ we further note that this particular language has continuously been a part of the amended statute since it was originally placed there by means of voter approval of Initiative No. 129 in 1939.  See, § 1, chapter 2, Laws of 1939.  Thus it will be seen that irrespective of how the court rules in this pending lawsuit, this exclusion of port and power districts from the statutory millage limitation of RCW 84.52.050 will remain in effect.  And, of course, this same exclusion is also to be found in the constitutional limitation which is contained in Article VII, § 2 of our state Constitution ‑ previously known as the forty mill limit2/ - which, as most recently amended by voter approval of SJR No. 1 (also at the November 7, 1972, general election) now provides, in pertinent part, as follows:

             [[Orig. Op. Page 3]]

            "Except as hereinafter provided and notwithstanding any other provision of this Constitution, the aggregate of all tax levies upon real and personal property by the state and all taxing districts now existing or hereafter created, shall not in any year exceed ((forty mills on the dollar of assessed valuation, which assessed valuation shall be fifty)) one per centum of the true and fair value of such property in money:  PROVIDED, HOWEVER, That nothing herein shall prevent levies at the rates now provided by law by or for any port or public utility district.  The term 'taxing district' for the purposes of this section shall mean any political subdivision, municipal corporation, district, or other governmental agency authorized by law to levy, or have levied for it, ad valorem taxes on property, other than a port or public utility district. . . ."

            We are aware that some concern has been expressed over the fact that, grammatically, the clause exempting ports and power districts (unquestionably a synonym for the term "public utility districts") is contained in a separate second paragraph of the amended version of RCW 84.52.050 resulting from voter approval of Initiative No. 44, whereas before it was a part of the same paragraph as were the words of limitation themselves.  We do not, however, regard this as being of any legal significance.  The critical words of exclusion remain "nothing herein" as before, and the word "herein" as used in this provision is, to us, an obvious reference to the entire section and not merely to its second paragraph ‑ just as is the previous "nothing herein" in the same paragraph which disclaims any intent to restrain the legislature from allocating the allowable twenty mills between taxing districts.

            Thus read, this provision, as before, means to us that nothing in this section limiting regular property taxes to an aggregate of twenty mills on an assessed valuation of fifty percent of the true and fair value of all taxable property3/ is to prevent levies by port and public  [[Orig. Op. Page 4]] utility districts at the full rates provided by existing law; namely, RCW 53.36.020 and RCW 56.16.080, under which these districts are both now authorized to levy property taxes at rates not in excess of two mills on the assessed valuation of the taxable properties located therein.

            Your first question is, therefore, answered in the negative ‑ thus rendering consideration of question (2) unnecessary.

            As for question (3), we may quickly dispose of any contention that the final clause of Initiative No. 44 ‑ or for that matter, the comparable language of SJR No. 1,supra, ‑ in any way limits the power of the legislature either to reduce the present millage rates of port or public utility districts (RCW 53.36.020 and RCW 54.16.080, supra) or to eliminate their powers of property taxation altogether.

            All that either of these provisions do is to disclaim any applicability of their respective limitations to the property taxes of these districts.  In no respect do they purport to mandate the legislature to continue in effect, in perpetuity, its existing authorizations for the imposition of such taxes by these two classes of taxing districts.  Accordingly, even though the limitations contained in these provisions are inapplicable to port or public utility districts (for reasons above explained) the legislature is entirely free, if it desires to do so, either to reduce the authorized millages of these districts or to withdraw their powers of property taxation entirely.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, Department of Revenue v. Hoppe, et al., Supreme Court No. 42671.

2/See, Amendment 17 as adopted in 1944.

3/The same thing, of course, as a one percent limitation based upon full value ‑ as now provided for in the Constitution.

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