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AGO 1966 No. 99 - July 26, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


TAXATION ‑- EXEMPTION ‑- PROPOSED CONSTITUTIONAL AMENDMENT ‑- AUTHORITY OF LEGISLATURE TO EXEMPT CERTAIN PROPERTY FROM REAL PROPERTY TAXES ‑- CONTINGENT LEGISLATION ‑- EFFECT OF CHAPTER 168, LAWS OF 1965, EX. SESS.

In the event that H.J.R. No. 7 is approved by the voters at the November, 1966, general election, the real property tax exemption made contingent upon the passage thereof in chapter 168, Laws of 1965, Ex. Sess., will become operative without further legislation and will apply to the first fifty dollars of real property taxes due and payable against real property owned and occupied by an eligible claimant for the year for which the exemption is claimed.

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                                                                    July 26, 1966

Honorable Ted G. Peterson
State Senator, 44th District
2345 N.W. Blue Ridge Drive
Seattle, Washington 98177

                                                                                                                Cite as:  AGO 65-66 No. 99

Dear Sir:

            This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:

            In the event that H.J.R. No. 7 is approved by the voters at the November, 1966 general election, will the tax exemptions thereby allowed then be operative and applicable to a school district or other excess property tax levy approved at the same election ‑ without any necessity for further action by the legislature?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            H.J.R. No. 7 is a proposed amendment to our state constitution, as follows:

             [[Orig. Op. Page 2]]

            "Notwithstanding the provisions of Article 7, section 1 (Amendment 14) and Article 7, section 2 (Amendment 17), the following tax exemption shall be allowed as to real property:

            "The legislature shall have the power, by appropriate legislation, to grant to retired property owners relief from the property tax on the real property occupied as a residence by those owners.  The legislature may place such restrictions and conditions upon the granting of such relief as it shall deem proper.  Such restrictions and conditions may include, but are not limited to, the limiting of the relief to those property owners below a specific level of income and those fulfilling certain minimum residential requirements."

            This proposition was approved by a two-thirds majority of the members of both houses of the Washington legislature at its 1965 session, in accordance with the provisions of Article XXIII to the Washington constitution.  This same constitutional provision states that any such proposed amendment, if ratified by a majority of the electors voting thereon,

            ". . . shall become part of this Constitution, and proclamation thereof shall be made by the governor: . . ."

            Thus, voter approval at the November, 1966 general election will cause the above‑quoted portion of H.J.R. No. 7 to become a part of the state constitution.  However, it is to be noted that the constitutional amendment, itself, does not contain any specific legislation granting property tax exemptions to any class of persons.  Rather, it merely authorizes the legislature to enact such legislation.

            In this connection, the 1965 legislature, in addition to proposing the constitutional amendment in question, enacted chapter 168, Laws of 1965, Ex. Sess.  Section 2 of this act contains the following express provision:

            "The following persons, as heads of households, shall be exempt from the first fifty dollars of real property taxes due and payable in any one year, provided they come within the following provisions:

             [[Orig. Op. Page 3]]

            "(1) A male head of a household shall be sixty-five years of age or older prior to February 15th of the year in which the real property is assessed and the taxes levied thereon;

            "(2) A female head of a household shall be sixty-two years of age or older prior to February 15th of the year in which the real property is assessed and the taxes levied thereon;

            "(3) The person claiming exemption shall have owned, either in fee or by contract purchase, the real property for which the exemption is claimed for at least five years or have been a resident of the state of Washington for at least ten years if not qualified under the five year ownership limitation;

            "(4) A claim for exemption can only be made for a single family dwelling;

            "(5) Said single family dwelling as provided in subsection (4) above cannot be permanently occupied by anyone who is not solely dependent upon the head of the household for his support;

            "(6) The head of the household and spouse shall be retired from all gainful employment for at least one year prior to application for such exemption and shall not be actively engaged in any type of business;

            "(7) The combined income of the head of the household and his spouse, from all sources whatsoever, shall not be in excess of three thousand dollars ($3,000) for the calendar year immediately preceding the year in which the real property is assessed and the taxes levied thereon.

            "(8) All claims for exemption shall be made and signed either before a notary public or the county assessor or his deputy in the county where the real property is located.   [[Orig. Op. Page 4]] Any person signing a false claim shall be subject to either civil or criminal perjury;

            "(9) Claims for exemption shall be made annually and solely upon forms as prescribed by the Washington State Association of County Assessors;

            "Head of a household, as used in this section, may be any of the following:  A married person, a single person, a widow or widower, a divorce or divorcee, provided they are the sole support of the household."

            Section 3 of this same legislative act provides:

            "This act shall become effective upon the approval of the voters of the state of an amendment to Article 7, section 1 of the Constitution of the state of Washington so as to authorize this form of exemption."

            Thus, it appears to have been the legislature's intent that if the voters approve H.J.R. No. 7,supra, such approval should have the effect of validating the specific tax exemption contained in § 2, chapter 168, Laws of 1965, Ex. Sess.,supra.  This was, in our opinion, a constitutionally valid approach for the legislature to have taken.  Our supreme court has held that the legislature may provide that acts shall become effective only on the occurrence of some contingent event.  State ex rel. Foster-Wyman Lum. Co. v. Sup'r Ct., 148 Wash. 1, 13, 14, 207 Pac. 770 (1928).  This is the uniform rule throughout the country.  See, 11 Am.Jur., Constitutional Law, § 216; 16 C.J.S., Constitutional Law, § 141, and other authorities cited in AGO 63-64 No. 33, copy attached.  That the specific contingency may be the approval by the people of an enabling constitutional amendment is also well established.  See,City of Tulsa v. Biles, Okla., 360 P.2d 720 (1961), and cases cited therein, including In re Opinion of the Justices, 227 Ala. 291, 149 So.776 (1933), wherein the Alabama court ruled as follows:

            "It is not intended that a Constitution must provide the details for its operation.  While it may of course be self-operating, it is primarily intended as a limitation on the power  [[Orig. Op. Page 5]] to legislate, otherwise unrestricted and not itself be a legislative body.  The Legislature is set up for that purpose.  In Alabama it convenes once in four years, unless specially called.  It seems to us to be entirely consistent with its powers of legislation, unrestricted except by the Constitution, to enact regulatory and enabling provisions to become effective when an amendment to the Constitution shall remove existing restrictions and in anticipation of such an amendment."

            It therefore follows that, in accordance with the legislative intent, approval by the voters at the November, 1966 general election, of H.J.R. No. 7,supra, will cause the tax exemption provisions of § 2, chapter 168, Laws of 1965, Ex. Sess.,supra, to become effective without the necessity of any further action by the legislature.  This being so, it further follows, in our opinion, that this statutory tax exemption will (if thus validated by approval of H.J.R. No. 7) be applicable as against all property taxes levied in 1967 for collection in 1968,1/ including, potentially, any school district or other excess levies voted upon and approved at the same November, 1966, election.2/

             However, this is not necessarily to say that actual application of the $50 statutory tax exemption provided for by § 2, chapter 168, Laws of 1965, Ex. Sess., will in every case reach such excess tax levies.  Whether or not it will do so in a particular case will depend upon whether the taxes levied and collected by virtue of the excess levy in question fall within  [[Orig. Op. Page 6]] or without ". . . the first fifty dollars of real property taxes due and payable" against the particular property for the year for which the exemption is claimed.  Section 2, chapter 168, Laws of 1965, Ex. Sess., supra.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 84.52.020 as to the statutory levy date, and RCW 84.56.020 as to the collection date.

2/In addition, it is arguable that the exemption, if thus validated, would also operate as to taxes levied in 1966, prior to the November, 1966 general election, but not collected until after passage of the constitutional amendment and accompanying exemption statute.  However, we are not to be taken as having passed upon that question at this time, inasmuch as it is beyond the scope of your specific inquiry.

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