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AGLO 1971 No. 112 - September 24, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                              September 24, 1971
 
 
 
Honorable Gerald L. Sorte
Legislative Auditor
Legislative Budget Committee
Legislative Building
Olympia, Washington 98504
                                                                                          Cite as:  AGLO 1971 No. 112 (not official)
 
 
Dear Sir:
 
            By letter previously acknowledged you requested an opinion of this office on several questions pertaining to the legal authority of the state to levy a tax on property to support state reclamation activities.  We paraphrase your questions as follows:
 
            (1) May the state presently, pursuant to RCW 89.16.120, levy a tax of one‑half mill on all property subject to taxation for the purpose of raising revenue to carry out the provisions of the State Reclamation Act?
 
            (2) If question (1) is answered in the affirmative, is it mandatory that such a tax be levied?
 
            (3) If question (2) is answered in the affirmative, must the levy be for the full one‑half mill or may such lesser millage be levied as will bring the reclamation revolving account to the five million dollar level and reimburse other state treasury funds from which money has been appropriated for the reclamation fund, in accordance with RCW 89.16.030?
 
            We answer question (1) in the negative and, therefore, consideration of questions (2) and (3) is unnecessary.
 
                                                                     ANALYSIS
 
            Question (1):
 
            RCW 89.16.120 as it now appears, reads as follows:
 
            "For the purpose of raising revenue for the carrying out of the provisions of (the State Reclamation Act, chapter 89.16 RCW), the state equalization committee shall, beginning the fiscal year of 1919, and annually thereafter, except in the years 1933 and 1934, at the time of levying taxes for state purposes, levy upon all property subject to taxation, and the proper officers shall collect, a tax of one‑half of one mill.  The revenue so raised shall be paid onto the state treasury and credited to the state reclamation revolving fund."
 
             [[Orig. Op. Page 2]]
            In order to determine whether this statutory provision has any present vitality, a review of legislative history is required.  The section was initially enacted as Sec. 12, chapter 158, Laws of 1919.  Subsequently in 1925, 1927, 1929, 1931 and 1933, the section was amended to suspend the imposition of the levy in the years 1926 through 1934.  (Sec. 1, chapter 151, Laws of 1925, Ex. Sess.; Sec. 1, chapter 218, Laws of 1927; Sec. 1, chapter 94, Laws of 1929; Sec. 1, chapter 80, Laws of 1931; Sec. 1, chapter 24, Laws of 1933.) No legislation explicitly dealing with RCW 89.16.120 has been approved since 1933.
 
            However, in 1934, an initiative measure dealing with the subject of state levies on taxable property was approved by the voters of the state.  Initiative 94, which became chapter 2, Laws of 1935, reaffirmed a limitation on the aggregate of all tax levies upon real and personal property of 40 mills on the dollar of assessed valuation which had initially been established by Initiative 64 in 1932.  In addition this popularly-approved measure stated that "the levy by the state shall not exceed two mills to be exclusively for the support of the University of Washington, Washington State College and the Normal Schools of the state . . ." (emphasis added).  See Sec. 1, chapter 2, Laws of 1935.
 
            The levy contemplated in RCW 89.16.120 is, by the terms thereof, a levy by the state.  There arose, thus, an evident conflict, by virtue of this 1934 enactment.  RCW 89.16.120 authorized a levy by the state for the support of reclamation.  Initiative 94 required that the levy by the state on property be used exclusively for higher education.
 
            For the purposes of considering the effect of Initiative 94 on the statute now codified as RCW 89.16.120, it is of no significance that the former was a law passed directly by the people rather than by their elected representatives.  Indeed, in Love v. King County, 181 Wash. 462, 469, 44 P.2d 175 (1935), which upheld the validity of Initiative 94, the Washington Supreme Court stated:
 
            "The passage of an initiative measure as a law is the exercise of the same power of sovereignty as that exercised by the legislature in the passage of a statute."
 
            The use of the word "exclusively" in Initiative 94 is clear and unambiguous.  Obviously, a levy to be used exclusively for one thing cannot be used for another.  Initiative 94, then, either impliedly repealed RCW 89.16.120 or effectively suspended its implementation.  However, in light of subsequent legislative developments, it doesn't matter, at the present time, which of these two effects this initiative had.  The ultimate legal result is the same.  The state is currently precluded from levying a tax pursuant to RCW 89.16.120.
 
            It may be that approval of Initiative 94 in 1934 impliedly repealed RCW 89.16.120.  Repeals by implication are not favored.  Griggs Land Co. v. Smith, 46 Wash. 185, 89 Pac. 477 (1907); State v.  [[Orig. Op. Page 3]] Ensminger, 77 Wn.2d 535, 463 P.2d 612 (1970).  But the Washington court has also frequently said that such a repeal can occur if two acts are "so clearly inconsistent or repugnant that they cannot by fair and reasonable construction be reconciled and both given effect."  See, e.g. Linsey v. Superior Court of King County, 33 Wn.2d 94, 204 P.2d 482 (1949).  Initiative 94 could not be given effect harmoniously and reconcilably with the reclamation levy provision.
 
            The timing of various enactments lends credence to the conclusion that RCW 89.16.120 is not effectively operative at present.  1933 was the last year in which the legislature approved any measure with respect to the reclamation levy.  1934 was the year in which it first became law that the property tax levy by the state was to be used exclusively for a non-reclamation purpose.  In the 1935 legislature there was no need to suspend the reclamation levy, as had been done in the previous five sessions, because Initiative 94 had already taken care of the problem.  Legislative history is silent, but it is plausible that the 1935 legislature considered the matter and so decided.  Tax problems were very much in the public mind in 1935 (See, Newman v. Schlarb, 184 Wash. 147, 50 P.2d 36 (1935)) and occupied considerable attention in the legislature.  Governor Clarence D. Martin, in a special tax message, called attention to problems created by Initiative 94 and proposed a variety of alternative solutions.  House Journal, 1935, pp 111-113.  The legislature responded with a far-reaching tax statute which, among other things, imposed the retail sales tax, See chapter 180, Laws of 1935.  The legislature further passed specific legislation for the levy of two mills by the state for higher education.  Chapter 131, Laws of 1935.  A bill to suspend the reclamation levy again was introduced.  It was passed by the Senate, reported favorably in the House, but never voted upon in the House.  Senate Journal, 1935, p. 444, House Journal, 1935, p. 607.  Significantly, however, the tax for reclamation was never again levied.  All of these events tend to indicate that the 1935 legislature was aware of the conflict between RCW 89.16.120 and Initiative 94 and that its failure to act on a measure suspending RCW 89.16.120‑-a suspension overwhelmingly approved in the previous five sessions‑-was a deliberate choice based on the conclusion that Initiative 94 had already either repealed or indefinitely suspended the reclamation levy.
 
            Nevertheless, RCW 89.16.120, though long unused, remains on the books.  This same situation with respect to a similar statute apparently bothered no one during the 1950's.  Chapter 131, Laws of 1935, authorizing a two mill state levy for higher education, was eventually codified as RCW 84.52.060.  In 1953, the limitation of levies section, RCW 82.52.050, was amended by Sec. 1, chapter 175, Laws of 1953, to provide that the levy by the state not exceed two mills to be used exclusively for public assistance.  In the same session a special statute authorizing a two mill state levy for public assistance was approved.  Sec. 43, chapter 174, Laws of 1953; RCW 74.04.150.  But, RCW 84.52.060 remained on the books until 1961 when it was rather subtly stricken from the statutes in a massive codification measure, chapter 15, Laws of 1961.  See RCW 84.98.040 (125).  It is apparent,  [[Orig. Op. Page 4]] however, that after 1953, while still on the books, RCW 82.52.060 was a dead letter.
 
            Initiative 94 was a forerunner of the present RCW 84.52.050.  An earlier initiative, approved in 1932, chapter 4, Laws of 1933, imposed the 40 mill limitation, but on the levy by the state it imposed a limit of five mills without specifying the use of the state levy.  Initiative 94 in 1934 was the first legislation on the subject to specify that the state levy must be used exclusively for a particular purpose.  Since 1934 sixteen pieces of legislation on the subject of aggregate limitation on levies and limitation on the levy by the state have become effective.  Chapter 1, Laws of 1937; chapter 2, Laws of 1939; Sec. 1, chapter 83, Laws of 1939; Sec. 1, chapter 176, Laws of 1941; Sec. 1, chapter 253, Laws of 1945; Sec. 1, chapter 11, Laws of 1950, Ex. Sess.; Sec. 1, chapter 255, Laws of 1951; Sec. 2, chapter 23, Laws of 1951, 2nd Ex. Sess.; Sec.1, chapter 175, Laws of 1953; Sec. 1, chapter 262, Laws of 1957; Sec. 84.52.050, chapter 15.  Laws of 1961; Sec. 1, chapter 143, Laws of 1961; Sec. 3, chapter 133, Laws of 1967, 1st Ex. Sess.; Sec. 1, chapter 216, Laws of 1969, 1st Ex. Sess.; Sec. 4, chapter 8, Laws of 1970, 2nd Ex. Sess.; Sec. 5, chapter 92, Laws of 1970, 2nd Ex. Sess.  As we have seen, in 1953, the use of the two mill state levy was changed from support of higher education to support of public assistance.  In 1967, an additional two mills was allowed in the state levy for 1967 and 1968 for common schools.  In 1969, allowance of this extra two mills for common schools was extended to 1969 and 1970.  But in each of the numerous enactments since 1934, there has remained the requirement that the levy by the state be used exclusively for a particular purpose or for particular purposes and reclamation has never been one of the stated purposes.
 
            In 1944, by their approval of H.J.R. No. 1 of the 1943 legislature, the voters brought into being a constitutional 40 mill limit, Art. VII, Sec. 2 (Amendment 17).  The Supreme Court in Carkonen v. Williams, 76 Wn.2d 617, 458 P.2d 280 (1969) clarified that, contrary to past practice, it is legally mandatory under this constitutional amendment for property to be assessed at 50% of its true and fair value.  Therefore, in order to prevent a potential doubling of property taxes, the legislature reacted by enacting chapter 92, Laws of 1970.  Section 5 of this act amended RCW 84.52.050 to lower the statutory limit on aggregate property taxes from 40 to 22 mills with respect to levies made in 1970 and 21 mills with respect to levies in subsequent years.1/   (Certain adjustments were provided for in the event that a then pending proposed constitutional amendment was approved by the voters, but the amendment was rejected at the polls and implementing legislation based on it never became effective.) Thus, at the present time, Washington State has one overall millage limit in its Constitution and another, lower, limit in its statute law.  However, the critical thing to be understood with respect to the question here considered is that, regardless of the aggregate millage limit or the specific millage limit applicable to the levy by the state, the state's levy is still "to be  [[Orig. Op. Page 5]] used exclusively" for explicitly stated purposes other than reclamation.  Therefore, we answer your first question in the negative, rendering consideration of your remaining questions unnecessary.
 


            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
WICK DUFFORD
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Amended by section 24, chapter 299, Laws of 1971, 1st Ex. Sess., to continue the 22 mill limit through 1972.
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