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AGO 1981 No. 11 - August 11, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DISTRICTS ‑- PORT ‑- TAXATION ‑- BUDGET ‑- TIMING OF CERTAIN PORT DISTRICT PROPERTY TAX LEVIES 

If a port district board of commissioners elects to conduct its annual budget hearing on the first Monday in December as permitted by RCW 53.35.045 instead of conducting that hearing as provided by RCW 53.35.020, the board may then lawfully fix the amount of the district's property tax levy necessary to fund the budget at that later time; and a county assessor may not, under those circumstances, require the port district to certify the amount of taxes to be levied ". . . on or before the second Monday in October . . ." 

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

                                                                 August 11, 1981 

Honorable Robert v. Graham
State Auditor
Legislative Building
Olympia, Washington 98504

Cite as:  AGO 1981 No. 11                                                                                                                

 Dear Sir:

             By recent letter you requested our opinion on the following two questions:

             "1. If a port district board of commissioners elects to conduct its annual budget hearing on the first Monday in December as permitted by RCW 53.35.045, instead of conducting that hearing as provided by RCW 53.35.020, may that board then lawfully fix the amount of the district property tax levy necessary to fund the budget at that later time rather than on the second Monday in October as apparently mandated by RCW 84.52.070?

             "2. If the answer to (1) is yes and a port elects to conduct its annual budget in December as permitted by  [[Orig. Op. Page 2]] RCW 53.35.045, may a county assessor, nevertheless, require a port to certify the amount of taxes levied on or before the second Monday in October in each year as apparently mandated by RCW 84.52.070?"

             We answer question (1) in the affirmative and question (2) in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             Chapter 53.35 RCW relates to the annual budget-making process for public port districts.  It largely codifies the provisions of chapter 159, Laws of 1959, § 4 of which (now RCW 53.35.040) reads as follows:

             "It shall be the duty of the commissioners of port districts, for the purpose of levying port district taxes, to file with the clerk of the board of county commissioners on or before the Wednesday next following the first Monday in October in each year a certified copy of such final budget which shall specify the amounts to be raised by taxation on the assessed valuation of the property in the port district."

             In addition, however, by its later enactment of § 1, chapter 19, Laws of 1974, 1st Ex. Sess. (now codified as RCW 53.35.045) the legislature provided that:

             "Notwithstanding any provision of law to the contrary, the board of commissioners of a port district may file with the clerk of the county legislative authority a certified copy of the port district final budget, provided for in RCW 53.35.040, on the first Monday in December.  The board of port commissioners may also set other dates relating to the budget process, including but not limited to the dates set in RCW 53.35.010 and 53.35.020 to conform to the alternate date for final budget filing."

              [[Orig. Op. Page 3]]

            The other statute cited in your questions is a part of the law relating to the imposition of property taxes by counties, cities and towns and other taxing districts (including port districts).  That statute1/ reads, in material part, as follows:

             "It shall be the duty of the board of county commissioners of each county, on or before thesecond Monday in October in each year, to certify to the county assessor of the county the amount of taxes levied upon the property in the county for county purposes, and the respective amounts of taxes levied by the board for each taxing district, within or coextensive with the county, for district purposes, . . ."  (Emphasis supplied)

             In AGLO 1976 No. 70, copy enclosed, we considered a question similar to those which you have now asked‑-from the standpoint, however, of a county's own property tax levy.  After noting the above‑quoted language of RCW 84.52.070, we then turned to RCW 36.40.071 which was added to the county budget law (chapter 36.40 RCW) by § 1, chapter 136, Laws of 1971, 1st Ex. Sess. and reads as follows:

             "Notwithstanding any provision of law to the contrary, the board of county commissioners may meet for the purpose of holding a budget hearing, provided for in RCW 36.40.070, on the first Monday in December.  The board of county commissioners may also set other dates relating to the budget process, including but not limited to the dates set in RCW 36.40.010, 36.40.050, and 36.81.130 to conform to the alternate date for the budget hearing."

             Obviously, this last quoted provision (which is still in effect insofar as counties are concerned) is for all practical purposes identical to RCW 53.35.045,supra, except the latter, instead, makes reference to port districts and their budget law provisions in chapter 53.35 RCW.  Therefore, what we said in AGLO 1976 No. 70 should, likewise, be pertinent here.  And what we said, in summary, was this:

              [[Orig. Op. Page 4]]

            ". . . If a county elects to conduct its budget hearing on the first Monday in December of a given year, as now permitted by RCW 36.40.071, it may then levy whatever property taxes are required to fund the budget following the adoption thereof, even though the levy is thus made later than the time designated by RCW 84.52.070, supra."

             Our first basis for reaching that conclusion was, quite simply, a determination that RCW 84.52.070, supra, is a directory rather than a mandatory statute;i.e., a statute that directs a given act to be performed at a particular time but does not divest the officer or agency which is required to perform of the authority to do so later.  Accord,Wingate v. Ketner, 8 Wash. 94, 35 Pac. 591 (1894) and State ex rel. Ross v. Headlee, 22 Wash. 126, 60 Pac. 126 (1900); and see also,State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948), further explaining the difference between a directory and a mandatory statute.  Secondly, we also noted the continuing existence of another section of the county budget law, RCW 36.40.090 which still contemplates ". . . that a county property levy is only to be fixed after the county budget has been adopted. . . ."

             We think the same reasoning is equally applicable here.  RCW 84.52.070, being directory and not mandatory, does not have the effect of preventing the responsible officials involved from lawfully fixing a port district property tax levy‑-to fund the district's budget‑-at some point in time later than the second Monday in October.  Furthermore, although there is admittedly no statute in chapter 53.35 RCW which is comparable to RCW 36.40.090, we think it nevertheless implicit that in a case of port districts, as well, their tax levies are to be fixed only after their budgets have been adopted.  The stated reason, under RCW 53.35.040, supra, for filing a port district budget with the clerk of the board of county commissioners is ". . . for the purpose of levying port district taxes, . . ."  And thus, in authorizing a port district to delay that filing until the first Monday in December, the legislature‑-by its 1974 adoption of RCW 53.35.045, supra‑-should logically be deemed to have intended to permit a corresponding deferral of the district's tax levy itself.

             [[Orig. Op. Page 5]]

            We therefore answer your first question in the affirmative and your second question in the negative.  If a port district board of commissioners elects to conduct its annual budget hearing on the first Monday in December as permitted by RCW 53.35.045,supra, instead of conducting that hearing as provided by RCW 53.35.020,supra, the board may then lawfully fix the amount of the district's property tax levy necessary to fund the budget at that later time.  And a county assessor may not, under those circumstances, require the port district to certify the amount of taxes to be levied ". . . on or before the second Monday in October . . ."

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

Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 84.52.070.

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