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AGO 1968 No. 19 - May 14, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS - SCHOOLS - TAXATION - EXCESS LEVY ELECTION.

It will not be possible for a school district or other taxing district to which the present 40-mill limit is applicable, in anticipation of the possible passage of S.J.R. 23 at the November, 1968, election, to prepare and submit to the voters of the district at the same election a proposal for two consecutive annual tax levies in excess of the 40-mill limit, since the procedures set forth in RCW 84.52.052 will continue to govern such excess levy propositions until the statute is amended by the legislature.

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                                                                   May 14, 1968

Honorable Louis Bruno
State Superintendent
of Public Instruction
Old Capitol Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1968 No. 19

Dear Sir:

            This is written in response to your letter dated April 26, 1968, requesting an opinion of this office as to whether a school district (or other taxing district to which the present 40-mill limit applies)1/ in anticipation of the possible passage of Senate Joint Resolution No. 23 by the voters at the November, 1968, state general election, may prepare and submit to the voters of the district at that same election a proposal for two consecutive annual tax levies in excess of the 40-mill limit, with the second of these two annual excess levies to be contingent upon approval of the proposed constitutional amendment.

            In our opinion, this question must be answered in the negative for the reasons set forth in the following analysis.

             [[Orig. Op. Page 2]]                       ANALYSIS

            Under the present provisions of Article VII, § 2 (Amendment 17) of the Washington constitution, it is necessary that a taxing district seeking authority from its voters to levy property taxes in excess of the constitutionally imposed 40-mill limit to submit the proposition to levy such additional tax ". . . not more than twelve months prior to the date on which the proposed levy is to be made . . ."  Since, under the provisions of RCW 84.52.030, property taxes are annually levied in October of each year, the present constitutional provision means that only a single excess levy can be authorized by the voters at a given election which election must take place within twelve months of the levy date.  See, AGO 57-58 No. 161, copy enclosed.

            The apparent purpose of the constitutional amendment contained in S.J.R. No. 23, which was approved by the 1967 legislature and will appear on the November, 1968, general election ballot, is to remove this constitutional impediment to the approval of more than one excess levy at a single election.  The approach taken in the proposed amendment is simply to remove the phrase ". . . not more than twelve months prior to the date on which the proposed levy is to be made . . .", and to substitute therefore a phrase reading ". . . not more than twenty-four months prior to the date for making a proposed levy or levies . . ."

            However, even if this proposed constitutional amendment is approved by the voters, the various taxing districts2/ will still be governed by the provisions of RCW 84.52.052, until such time as that statute is amended by the legislature.  Quoting only so much of this existing statute as relates to school districts (but noting that the same procedures and limitations apply to other taxing districts as well), it will be seen that the statute contains the following pertinent provision:

             [[Orig. Op. Page 3]]

            ". . . Any . . . school district . . . may levy taxes at a rate in excess of the rate specified in RCW 84.52.050 through 84.52.056, when authorized so to do by the electors of such . . . school district, . . . by a three fifths majority of those voting on the proposition at a special election,to be held in the year in which the levy is made, and not oftener than twice in such year, in the manner provided by law for holding general elections, at such time as may be fixed by the body authorized to call the same, which special election may be called by the . . . board of school directors, . . . by giving notice thereof by publication in the manner provided by law for giving notices of general elections, . . ."  (Emphasis supplied.)

            Thus, the present statute, like the present constitutional provision, contains a requirement that the election for purposes of authorizing an excess property tax levy shall be held in the year in which the levy is made.3/   Accordingly, the situation which will exist upon approval by the voters of S.J.R. No. 23 (assuming that the proposal is approved) will simply be that it will then be possible, but by no means necessary,4/ for the legislature to amend the provisions of  [[Orig. Op. Page 4]] RCW 84.52.052,supra, so as to conform the statute to this liberalization of the present constitutional procedures for obtaining voter approval to levy property taxes in excess of the constitutional 40-mill limit.

            If the legislature enacts such a statutory amendment at its forthcoming 1969 session, it will thereafter be possible for the subject taxing districts to submit propositions for consecutive two-year excess levies to their voters at a single election.  However, in the meantime, as we have said, the governing law is, and will remain, as set forth in the present provisions of RCW 84.52.052.

            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/The term "taxing district" in this constitutional provision -and for purposes of this opinion -does not include port or public utility districts.

2/Including, in addition to school districts, the following:  Counties, cities and towns, metropolitan park districts, certain park and recreation districts, sewer and water districts, public hospital districts, library districts, fire protection districts and cemetery districts.

3/In Sims v. Bremerton, 190 Wash. 62, 66 P.2d 863 (1937), this statutory provision was held to mean not the calendar year during which the levy is made but rather, the fiscal year of 365 days between each tax levy date.  Thus, although differently worded, the present statutory provision is completely consistent with the present constitutional limitation.  For another application of this statute, see our opinion dated June 2, 1949, to the prosecuting attorney of Pierce county, copy enclosed.

4/See, Union High Etc. v. The Taxpayers Etc., 26 Wn.2d 1, 172 P.2d 591 (1946), in which the supreme court expressly recognized that the legislature may impose additional limitations without violating the state constitutional 40-mill limit provision, which provision the court characterized as simply prescribing minimum limitations on elections for an excess levy.

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