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AGO 1966 No. 94 - July 15, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- FLOOD CONTROL ‑- NONAPPLICABILITY OF CONSTITUTIONAL DEBT LIMITATIONS GOVERNING MUNICIPAL CORPORATIONS.

A flood control district organized pursuant to chapter 86.09 RCW is not subject to the debt limitation provisions of Article VIII, § 6, of the Washington state constitution for the reason that it is not a "municipal corporation" within the meaning thereof.  Accord:  Board of Directors v. Peterson, 4 Wash. 147, 29 Pac. 995 (1892).

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                                                                    July 15, 1966

Honorable H. Maurice Ahlquist
Director, Department of Conservation
335 General Administration Building
Olympia, Washington 98501

                                                                                                                Cite as:  AGO 65-66 No. 94

Dear Sir:

            By letter previously acknowledged, you requested our advice with regard to a question which we have paraphrased as follows:

            Is a flood control district organized pursuant to chapter 86.09 RCW subject to the debt limitation provisions of Article VIII, § 6, of the Washington state constitution?

            We answer your question in the negative.

                                                                     ANALYSIS

            Article VIII, § 6, of our state constitution provides:

            "No county, city, town, school district, or other municipal corporation shall for any purpose become indebted in any manner to an amount exceeding one and one‑half percentum of the taxable property in such county, city, town, school district, or other municipal corporation, without the assent of three‑fifths of the voters therein voting at an election to be held for that purpose, nor in cases requiring such assent shall the total indebtedness at any time exceed five percentum on the value of the taxable property therein, to be ascertained by the last assessment for state and county purposes previous to the incurring of such indebtedness, except  [[Orig. Op. Page 2]] that in incorporated cities the assessment shall be taken from the last assessment for city purposes:  Provided, That no part of the indebtedness allowed in this section shall be incurred for any purpose other than strictly county, city, town, school district, or other municipal purposes:  Provided further, That (a) any city or town, with such assent, may be allowed to become indebted to a larger amount, but not exceeding five percentum additional for supplying such city or town with water, artificial light, and sewers, when the works for supplying such water, light, and sewers shall be owned and controlled by the municipality and (b) any school district with such assent, may be allowed to become indebted to a larger amount but not exceeding five percentum additional for capital outlays."  (Emphasis supplied.)

            The question to be determined is whether a flood control district, organized under chapter 86.09 RCW, is a "municipal corporation" within the meaning of this constitutional provision.1/

             RCW 86.09.148 characterizes a flood control district organized under the provisions of this chapter as a"body corporate"  [[Orig. Op. Page 3]] possessing

            ". . . all the usual powers of a corporation for public purposes as well as all powers that may now or hereafter be conferred by law, . . ."

            Such districts may be created

            ". . . for the protection of life and property, the preservation of the public health and the conservation and development of the natural resources of the state of Washington."  RCW 86.09.001.

            See,Weyerhaeuser Timber Co. v. Banker, 186 Wash. 332, 340, 58 P.2d 285 (1936).2/

             District revenues are obtained through the levy and collection of special assessments against the lands within the district.  RCW 86.09.151.  Special assessments are levied on the various lands within the district on the basis of the special benefits to said lands arising from the activities and operations of said district.  RCW 86.09.382.3/   See, also, RCW 86.09.445.  As an alternative method under RCW 86.09.409, special benefits for assessment purposes "may be determined in their relation to their relative values of the respective benefited lands, including the improvements thereon, and the same shall be  [[Orig. Op. Page 4]] expressed on a relative percentage basis."4/

             We are aware of no cases which deal directly with the question you have posed.  However, inBoard of Directors v. Peterson, 4 Wash. 147, 29 Pac. 995 (1892), our supreme court  [[Orig. Op. Page 5]] had occasion to deal with the same problem you have raised as it related to an irrigation district.  There the court initially observed

            ". . . that every public corporation formed by the state for the purpose of carrying out any of the duties, which the state owes to any locality and which by its terms are made alike applicable to all the inhabitants of the district or locality affected thereby, . . ."

            is a municipal corporation within the meaning of Article VIII, § 6,supra.  However, the court then proceeded to consideration of the specific section before it, as follows (4 Wash. 147 at pp. 151-152):

            ". . . It does not follow, however, that every corporation, which may be constituted by the state as an agency in the performance of some public orquasi-public duty, comes within said definition.  One of the essentials of a municipal corporation is that for the purposes for which it is organized it must affect all within its boundaries alike, and this is true even although such corporation is constituted for a single purpose; for instance, a school district, though organized only for the purpose of providing means and furnishing facilities for the education of its children, yet affects all the taxpayers of such district alike.  The same may be said of a county.  It has only limited powers, it is true, but those powers are to be exercised in the interest of all the inhabitants of the county alike.  Such is not the case with corporations formed under the provisions of the act in question, for, while it is true that its powers and privileges are subject to the will of the majority of the electors therein, yet when it acts thereunder it does not equally affect all of its inhabitants.  The act does not provide that its purposes shall be carried out by means of a tax on all the property within the district, but on the contrary expressly limits it to the real  [[Orig. Op. Page 6]]estate situated therein, and which is judged to be benefited by the improvement contemplated.  It will thus be seen that even if we are to hold that every corporation which the legislature sees fit to make use of for the purpose of aiding in the government of any district or locality, or providing for the inhabitants thereof, any right or privilege common to them all, were municipal corporations within the inhibition of said constitutional provision, yet it would not follow that corporations of the kind contemplated by this act were also municipal corporations.  The powers conferred upon these irrigation districts are not primarily that of government or regulation, or even of taxation, though such are conferred to a limited degree as necessarily incident to the main power conferred.  The primary and main power thus conferred is that of local improvement of the real estate therein for the benefit of its owners, and at their expense.  In one sense the district thus constituted is not a public corporation at all; its object has no connection with any of the public duties which the state owes to its inhabitants.  In a certain sense it is only the purely private interest of the freeholders that is sought to be subserved."  (Emphasis supplied.)

            The court's discussion of the matter then continued as follows (pp. 152-155):

            ". . . It is true that it may be extended throughout a large area and affect the rights of a large number of people, but it must be remembered that it does not affect their rights in the way that ordinary municipal corporations do.  They pay taxes, it is true, or an assessment in the nature of a tax, but it is not for the benefit of the community at large within such districts, but for the special benefit of the owners of real estate situated therein,  [[Orig. Op. Page 7]] and is proportioned to the benefits which they are to receive from the improvement.  In a certain sense no tax in the ordinary use of that word is imposed; each owner of land contributes to a common fund, and receives back from such fund the exact amount of his contribution.  Such is not the nature of a tax levied in any of the corporations which have been held to be municipal corporations.  In those every taxpayer must pay his taxes according to the value of his property, regardless of the question as to whether or not his property is directly benefited thereby.  In the contemplation of law he may be benefited, but such benefit is not the direct and immediate consequence of the payment of the tax as in the case of these districts. . . . It is practically conceded by the respondent that these districts constitute public corporations and not municipal ones, if under our constitution the words public and municipal, as thus applied, have not been made substantially synonymous.  Such words are no doubt used at times as expressing substantially the same idea, but it is conceded that in the usual and ordinary sense the word 'public' is a broader term than the word 'municipal,' and includes not only municipal corporations but others of a public character which are not in the ordinary sense municipal.  But it is claimed on the part of the respondent, that the provisions of our constitution are such as to abrogate this distinction, and make it the duty of courts in interpreting the same to construe these words as being synonymous.  This argument is gathered largely from the wording of said section six of article eight, which, as we have seen before, classes as municipal corporations school districts and counties as well as cities and towns.  The argument of respondent in this regard being that as school districts and counties belong to the class of public as distinguished from municipal corporations, that the constitution in classing them therewith intended to do away with all distinction between them.  In our opinion such a result does not follow, though it must be conceded that the effect thereof has been to enlarge the definition of 'municipal' so that corporations will fall within that class  [[Orig. Op. Page 8]] which would not otherwise have done so.  But it does not follow that there cannot be corporations which are of a public or quasi-public nature which are so different in all their powers, characteristics and objects from either counties or school districts as not to fall within the definition of 'other municipal corporations'used in connection therewith. . . . the use of terms in the constitution must be interpreted in the light of legislation existing at the time, and upon an examination of the legislation in force in this state at the date of the adoption of the constitution it will be clearly seen that a well defined distinction as between public and municipal, as applied to corporations, existed.  The constitution clearly recognizes the importance of improvements of the kind sought to be furthered by this legislation, and yet to interpret the section under consideration as contended for by the respondent would take from the legislature the power to deal with the subject in any effective manner.  The improvement contemplated in the creation of the districts is a local one in the interest of property benefited, and has nothing whatever to do with the taxing power. . . . We are, . . . satisfied to hold that these districts, although undoubtedly corporations in a certain sense, and perhaps public corporations, are not municipal corporations within the meaning of said section of the constitution.  Such seems to us the reasonable construction of such constitutional provision as applied to the act under consideration, . . ."  (Emphasis supplied.)

            The reasoning of thePeterson case is equally applicable to flood control districts for such districts are, like irrigation districts, public corporations established primarily for the construction and operation of local improvements designed to benefit lands within a designated geographical area.5/

             [[Orig. Op. Page 9]]

            Likewise, the operating revenues of such districts are derived primarily from the assessments levied on the basis of the special benefit to lands in the district from the operation of the districts' facilities.5/   Indeed these districts have no power whatsoever to tax in the usual sense of the word.6/

             It is our opinion that flood control districts organized under chapter 86.09 RCW are not "municipal corporations" within the meaning of the term as it is used in Article VIII, § 6, of the Washington state constitution.  You are therefore advised that such districts are not subject to the debt limitations of the constitutional provision in question.

             [[Orig. Op. Page 10]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/"A municipal corporation, in its strict and proper sense, is a body politic . . . established by law partly as an agency of the state to assist in the civil government of the country but chiefly to regulate and administer the local or internal affairs of the city, town or district which is incorporated."

            ". . . sometimes it [the term municipal corporation] is used in a broader sense that includes also public or quasi corporations, the principal purpose of whose creation is as an instrumentality of the state, and not for the regulation of the local and special affairs of a compact community."  Dillon on Municipal Corporations (5th ed.), vol. 1, §§ 31 and 32.  Columbia Irr. District v. Benton County, 149 Wash. 234, 270 Pac. 813 (1928).

2/See, also, RCW 86.09.010 which provides:

            "Such flood control districts may be organized or maintained for any, or all, the following general purposes:  (1) The investigation, planning, construction, improvement, replacement, repair or acquisition of dams, dikes, levees, ditches, channels, canals, banks, revetments and other works, appliances, machinery and equipment and property and rights connected therewith or incidental thereto, convenient and necessary to control floods and lessen their danger and damages.  (2) The cooperation with any agency or agencies of the United States and/or of the state of Washington in investigating and controlling floods and in lessening flood dangers and damages."

3/In this regard, RCW 86.09.394 provides:

            "For the purpose of determining said ratios of benefits, said board of appraisers shall segregate the acreage of the respective lands within the district into such number of classes as in the sole judgment of the members of the board of appraisers shall fairly represent the manifest degrees of benefits, including benefits from better sanitation, easier accessibility, facility of drainage, promotion of land development as well as from minimization of flood damages and from actual flood protection, accruing to the several lands from the organization and operation of the district and the construction and maintenance of the district works in accordance with the comprehensive plan therefor adopted by the directors of the district."

4/RCW 86.09.412 provides:

            "In case said alternative method of determining the ratio of benefits is adopted by any such district the percentage given a tract of land shall fix the class to which said tract belongs for assessment purposes."

            RCW 86.09.415 provides:

            "In determining the relative values of such lands, including improvements thereon, the assessed valuation of the same for general tax purposes last equalized shall be construed to be prima facie correct:  Provided, That nothing herein contained shall be construed to prevent the fixing of values where none are shown on the general tax roll or the revision of such values on the general tax roll in any instance where in the sole judgment of the revising officers for the district the value for general tax purposes is manifestly and grossly erroneous in its relation to value of like property in the district similarly situated:  And provided further, That in any instance where any tract of land is protected or partially protected from floods and is financially supporting the works affording such protection the revising officers for the district shall take the value of such existing flood protection into consideration and give such land equitable credit therefor."

5/In Weyerhaeuser Timber Co. v. Banker, supra, our supreme court likened flood control districts organized under chapter 86.05 RCW (now repealed) to irrigation districts.  At page 340 thereof, the court wrote:

            "The primary purpose in organizing a flood control district of the kind here is to reclaim, or save, and to benefit particular property.  Such districts are analogous to diking, drainage, levee and irrigation districts.  The purpose of the improvements contemplated by such projects is either to escape the ravages, or else to secure the benefits, of water and its effects.  The powers conferred upon such bodies corporate are not primarily those of government or regulation, or even of taxation, though such powers are conferred to a limited degree as necessarily incident to the main power conferred.  The primary and principal power thus granted is that of local improvement of the real estate in the district for the benefit of its owners. . . ."  (Emphasis supplied.)

            The court's language is, in our opinion, equally applicable to the type of flood control district in question.

5/In Weyerhaeuser Timber Co. v. Banker,supra, our supreme court likened flood control districts organized under chapter 86.05 RCW (now repealed) to irrigation districts.  At page 340 thereof, the court wrote:

            "The primary purpose in organizing a flood control district of the kind here is to reclaim, or save, and to benefit particular property.  Such districts are analogous to diking, drainage, levee and irrigation districts.  The purpose of the improvements contemplated by such projects is either to escape the ravages, or else to secure the benefits, of water and its effects.  The powers conferred upon such bodies corporate are not primarily those of government or regulation, or even of taxation, though such powers are conferred to a limited degree as necessarily incident to the main power conferred.  The primary and principal power thus granted is that of local improvement of the real estate in the district for the benefit of its owners. . . ."  (Emphasis supplied.)

            The court's language is, in our opinion, equally applicable to the type of flood control district in question.

6/See, Annotation 90 A.L.R. 1137.

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