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AGO 1969 No. 19 - October 09, 1969
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Slade Gorton | 1969-1980 | Attorney General of Washington


TAXATION - ESTABLISHMENT OF UNIFORM MILLAGE RATE FOR CERTAIN COUNTIES.

The assessor of a county of the fifth class or under, in implementation of the authority granted to such counties under RCW 84.52.050, may not fix a greater millage rate for the county's regular property tax levy for general county purposes with regard to taxable property located in unincorporated areas of the county than he fixes as to such property which is located within incorporated cities or towns.

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                                                                 October 9, 1969

Honorable Annette L. Vail
Prosecuting Attorney
Garfield County Court House
Pomeroy, Washington 99347

                                                                                                                 Cite as:  AGO 1969 No. 19

Dear Mrs. Vail:

            By letter previously acknowledged you requested an opinion of this office on a question pertaining to ad valorem property taxation in counties of the fifth class and under.  We have paraphrased your question as follows:

            May the assessor of a county of the fifth class or under, in exercising the authority granted to such counties under RCW 84.52.050, fix a greater millage rate for the county's regular property tax levy for general county purposes with regard to taxable property located in unincorporated areas of the county than he fixes as to such property which is located within incorporated cities or towns?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Under Article VII, § 2 (Amendment 17) of our state constitution, the aggregate of all regular tax levies upon real and personal property by the state and all taxing districts (except  [[Orig. Op. Page 2]] port districts and public utility districts) is limited to not more than forty mills on the dollar of assessed valuation.  Within this constitutional "forty mill" limit, the legislature has established statutory millage limits for the state, counties, county road districts, school districts, and cities and towns.  Generally speaking, these limits (as set forth in RCW 84.52.050) are as follows:

            State 4 mills

            School district 12 mills

            City or town 15 or 16 mills1/   County 8 mills

            County road district (levied only against taxable property located outside of incorporated cities or towns)2/ - 10 mills

            However, by virtue of an amendment to RCW 84.52.050 which was enacted in 1957,3/ the legislature has qualified the foregoing millage allocations in the case of counties of the fifth class and under by providing as follows:

            ". . .Provided further, That counties of the fifth class and under are hereby authorized to levy from eight to eleven mills for general county purposes and from seven to ten mills for county road  [[Orig. Op. Page 3]] purposes if the total levy for both purposes does not exceed eighteen mills: . . ."

            Your question involves a county assessor's implementation of the exercise by his fifth or lower class county of the special authority granted to such counties under this proviso it being the statutory responsibility of the assessor todetermine, calculate and fix the millage rates for the taxes which are to be levied.  See, RCW 84.52.010, which sets forth the duties of the assessor as follows:

            "All taxes shall be levied or voted in specific amounts, and the rate percent of all taxes for state and county purposes, and purposes of taxing districts coextensive with the county, shall be determined, calculated and fixed by the county assessors of the respective counties, within the limitations provided by law, upon the assessed valuation of the property of the county, as shown by the completed tax rolls of the county, and the rate percent of all taxes levied for purposes of taxing districts within any county shall be determined, calculated and fixed by the county assessors of the respective counties, within the limitations provided by law, upon the assessed valuation of the property of the taxing districts respectively: Provided, That when any such county assessor shall find that the aggregate rate of levy on any property will exceed the limitation fixed by section 2, article 7 of the state Constitution, as enacted by the seventeenth amendment, he shall recompute and establish a consolidated levy in the following manner:

            "(1) He shall include for extension on the tax rolls the full rates of levy certified to him for state, county, county road districts, city and school district purposes in amounts not exceeding the limitations established by law, and

            "(2) He shall include for extension on  [[Orig. Op. Page 4]] the tax rolls the rates percent of the tax levies certified to him by all other taxing districts imposing taxes on such property, other than port districts and public utility districts, reduced by him in such uniform percentages as will bring the consolidated tax levy on such property within the provisions of the constitutional limitation."4/

             However, before restating your question for ease of reference, it seems appropriate in order to place your inquiry in sharper focus in terms of the underlying problem at hand to make a basic factual assumption.  The assumption to be made is that each of the taxing authorities covered by RCW 84.52.050,supra, determines to make full use of its allotted "regular" (i.e., within the forty mill limit) tax millage.

            Disregarding the county general purpose levy, itself, for the moment, it will be seen that this will result in the levying of taxes at a total combined millage rate of 32 mills against taxable property located in an incorporated city or town  [[Orig. Op. Page 5]] whereas the combined millage rate in unincorporated areas of the county will only be twenty-six mills5/ - a difference of six mills in consequence of the difference between the millage "ceilings" placed upon cities or towns, on the one hand, and county road districts on the other.

            From this it will follow that while a total of fourteen mills (40-26), or more than enough to allow the county general purpose levy to go to as high a rate as eleven mills, will remain available for utilization in the unincorporated areas of the county, there will only be eight mills (40-32) available for the county levy within the incorporated cities and towns of the particular county.

            Given this situation, your question is whether the county assessor may fix a greater millage rate (e.g., eleven mills) for the county's "regular" property tax levy for general county purposes against property in the unincorporated areas than the millage rate (i.e., eight mills, the maximum rate remaining) he fixes for such purposes as to property which is within a city or town.  In our opinion, he may not.

            In the first place a county assessor as any other public officer in this state has only such powers as have been either expressly, or by necessary implication, granted to him by statute or constitutional provision.  See,State ex rel. Taylor v. Superior Court, 2 Wn. 2d 575, 98 P. 2d 985 (1940), and cases cited therein.  Nothing contained in either RCW 84.52.010 or 84.52.080, supra, under which a county assessor is to fix the respective millage rates for his county and the various taxing districts therein, may be said to authorize an assessor to fix differing millage rates for a given taxing authority  [[Orig. Op. Page 6]] county or otherwise with respect to taxable property located in different geographical parts of the authority.

            Secondly, taxation by a county at a uniform rate with respect to all taxable property located therein appears clearly to be required by our state constitution.  See, Article VII, § 1 (Amendment 14), which provides that:

            ". . . All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. . . ."6/

             Therefore, in direct answer to your question, we must advise you that the assessor of a county of the fifth class or under, in implementation of the authority granted to such counties under RCW 84.52.050, may not fix a greater millage rate for the county's regular property tax levy for general county purposes with regard to taxable property located in unincorporated areas of the county than he fixes as to such property which is located within incorporated cities or towns.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILLIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 41.16.060 which adds one mill to the regular tax millage of those cities having a paid firemen's pension fund.

2/See, RCW 36.75.060, under which the territory of any incorporated city or town is excluded from the boundaries of a county road district; also, RCW 36.82.040, which contains the general authority for levying county road district property taxes.

3/See, § 1, chapter 262, Laws of 1957.

4/See, also, RCW 84.52.080, which provides that:

            "The county assessor shall extend the taxes upon the tax rolls in the form herein prescribed.  The rate percent necessary to raise the amounts of taxes levied for state and county purposes, and for purposes of taxing districts coextensive with the county, shall be computed upon the assessed value of the property of the county; the rate percent necessary to raise the amount of taxes levied for any taxing district within the county shall be computed upon the assessed value of the property of the district; all taxes assessed against any property shall be added together and extended on the rolls in a column headed consolidated or total tax.  In extending any tax, whenever it amounts to a fractional part of a cent greater than five mills it shall be made one cent, and whenever it amounts to five mills or less than five mills it shall be dropped.  The amount of all taxes shall be entered in the proper columns, as shown by entering the rate percent necessary to raise the consolidated or total tax and the total tax assessed against the property."

5/For purposes of this discussion, we are further assuming availability to each of these taxing authorities of the full amount of their allocated millage rates without regard to the impact thereon of the 1967 "tax freeze" law, chapter 146, Laws of 1967, Ex. Sess., which, in effect, reduces the tax millage of a particular taxing authority to that rate which will produce a given dollar amount in tax revenue which is related, statutorily, to the taxing authority's general revenues for the previous year.

6/See, Carkonen, et al. v. Williams, et al., 76 W.D. 2d 786 [[76 Wn.2d 617]](1969), for a very recent interpretation and application of this provision to the effect that regular property tax levies must be uniform throughout the county levying the taxes.  Accord,State ex rel. Barlow v. Kinnear, 70 Wn.2d 482, 423 P.2d 937 (1967).

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