Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1976 No. 70 -
Attorney General Slade Gorton


If a board of county commissioners elects to conduct its annual budget hearing on the first Monday in December, as permitted by RCW 36.40.071, instead of conducting that hearing on the first Monday in October as provided for under RCW 36.40.070, the board may then lawfully fix the amount of the county 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.

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                                                               November 18, 1976

Honorable Andrew C. Braff
Prosecuting Attorney
Stevens County Court House
Colville, Washington 99114                                                                                                               Cite as:  AGLO 1976 No. 70

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            If a board of county commissioners elects to conduct its annual budget hearing on the first Monday in December, as permitted by RCW 36.40.071, instead of conducting that hearing on the first Monday in October as provided for under RCW 36.40.070, may the board then lawfully fix the amount of the county 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?

            We answer the foregoing question in the affirmative for the reasons set forth in our analysis.


            For many years, as you know, RCW 36.40.070 has required boards of county commissioners throughout the state to conduct their annual county budget hearings on the first Monday in October in each year.  Correlatively, RCW 84.52.070, has, likewise, long provided that:

            "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.)

             [[Orig. Op. Page 2]]

            This statutory relationship between the time of a county budget hearing, on the one hand, and the date fixed for the certification of levies to the assessor, on the other, is also reflected in a third statute, RCW 36.40.090.  That statute, which comes into play once the county budget has been formally adopted,1/ reads as follows:

            "The board of county commissioners shall then fix the amount of the levies necessary to raise the amount of the estimated expenditures as finally determined, less the total of the estimated revenues from sources other than taxation, including such portion of any available surplus as in the discretion of the board it shall be advisable to so use, and such expenditures as are to be met from bond or warrant issues:  Provided, That no county shall retain an unbudgeted cash balance in the current expense fund in excess of a sum equal to the proceeds of a one dollar and twenty-five cents per thousand dollars of assessed value levy against the assessed valuation of the county.  All taxes shall be levied in specific sums and shall not exceed the amount specified in the preliminary budget."

            In 1971, however, the legislature, by its enactment of chapter 136, Laws of 1971, 1st Ex. Sess., amended the county budget process by adding the following new section (now RCW 36.40.071) to chapter 36.40 RCW:

            "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."

            The problem is that the legislature made no correlative change in the language of RCW 84.52.070,supra, thus  [[Orig. Op. Page 3]] leaving it possible to argue that although a county budget need not now be adopted until the early part of December of any given year, the ad valorem property taxes to fund that budget still must be levied nearly two months earlier, on the second Monday in October.  Your question, in effect, is whether we would agree with that view or, instead, would subscribe to a belief that in those cases where the county budget hearing is delayed until December (in accordance with RCW 36.40.071, supra) the act of imposing the county tax levy may also be deferred accordingly.

            In responding to that question we first note that even before the enactment of RCW 36.40.071,supra, it was fairly common practice for property tax levies not actually to be made precisely on the second Monday in October of each year (or before), the "apparent mandate" of RCW 84.52.070,supra, to the contrary notwithstanding.  Budget hearings ‑ even those which commenced on time ‑ would often run overtime at both the county level and at the level of the various other municipalities encompassed by RCW 84.52.070.  Never, however, was the validity of any such "late" levy ever sucessfully challenged in court; and in fact, the normal practice was even supported by dicta in one early case,Wingate v. Ketner, 8 Wash. 94, 35 Pac. 591 (1894), in which the court, speaking of an earlier version of RCW 84.52.070, said, at page 95:

            ". . .  The limitation as to the time is not so mandatory that the least neglect to comply therewith would deprive the city of the right to make any tax levy for the year."

            See, also, to the same effect, State ex rel. Ross v. Headlee, 22 Wash. 126, 60 Pac. 126 (1900), which involved the issue of whether or not a board of county commissioners, after making the regular October levy, could later make a new and amended levy when it appeared to the board that the first levy was excessive.  The court had no difficulty in holding that this could be done.

            Thus, what we have in RCW 84.52.070, supra, is what is sometimes referred to as a "directory" rather than a mandatory statute.  By "directory" we do not mean discretionary, meaning that the action called for is not required to be done at all.  Instead, we mean a statute which directs a given act to be performed at a particular time but does not divest the officer or agency which is required to perform  [[Orig. Op. Page 4]] of the authority to do so later.  See, for example, RCW 41.40.260, relating to the commencement of civil actions by this office on the basis of a state auditor's report of examination, which was held to be directory rather than mandatory in State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948).

            Secondly, there is a further reason for concluding as we do, that the county levy may be deferred until December if the budget hearing is also thus delayed.  Unlike the above stated characterization of RCW 84.52.070 as directory rather than mandatory, however, this additional basis for our conclusion is only supportive of a delay in the county levy itself and not those of other taxing units.

            Simply stated the provisions of RCW 36.40.090, supra, still contemplate, as they always have, that a county property levy is only to be fixed after the county budget has been adopted.  That critical relationship has not been changed by the legislature ‑ even though the power to hold the budget hearing in December rather than October has now been granted to all boards of county commissioners in our state.  Yet, of course, the 1971 legislature which enacted what is now RCW 36.40.071,supra, must be presumed to have been aware of all of its own prior acts ‑ including both RCW 36.40.090 and RCW 84.52.070.  Accord,Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965), and cases cited therein.  In addition, it must also be presumed that the legislature which enacted RCW 36.40.071 did not intend to create an absurdity such as would, manifestly, exist if, in any case, county property tax levies had to be fixed before, rather than after, the adoption of a county budget.  Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).

            Therefore, aside from the fact that RCW 84.52.070, supra, is a directory rather than a mandatory statute, it is our considered opinion, in any event, giving effect to RCW 36.40.070 through 36.40.090,supra, ‑ that the question which you have here posed is readily answerable in the affirmative.  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  [[Orig. Op. Page 5]] designated by RCW 84.52.070,supra.2/

             It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 36.40.080.

2/Having reached this conclusion, however, we would caution that nothing in this opinion is intended to approve or support making the levy at a time so late it would be impossible for the county assessor and the county treasurer to take the steps required of them under RCW 84.52.070 and 84.52.080 as well as RCW 84.56.010 and 84.56.070 in order to commence collection of ad valorem taxes on February 15 of the tax collection year.