Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1980 No. 10 -
Attorney General Slade Gorton


Under RCW 67.28.180, which authorizes the legislative body of any county or city to levy and collect a special excise tax on hotel and motel occupancies, the term "city" includes a municipal corporation of the fourth class, commonly known as a "town," organized and operating under the provisions of chapter 35.27 RCW. 

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                                                                   April 25, 1980 

Municipal Research Council
4719 Brooklyn Avenue N.E.
Seattle, Washington 98105
Attn:  Avery Garrett, Chairman

Cite as:  AGO 1980 No. 10                                                                                                             

 Dear Sir: 

            This is written in response to your request for our opinion on a question which we paraphrase as follows: 

            Under RCW 67.28.180, which authorizes the legislative body or any county or any city to levy and collect a special excise tax on hotel and motel occupancies, does the term "city" include a municipal corporation of the fourth class, commonly known as a "town," organized and operating under the provisions of chapter 35.27 RCW? 

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

             [[Orig. Op. Page 2]]


            RCW 67.28.180 provides for the imposition of a special excise tax on hotel and motel occupancies for the purpose of funding the acquisition, construction or operation of public stadium facilities, convention center facilities, performing arts center facilities and/or visual art center facilities or for certain other related purposes as further specified in RCW 67.28.210.  As originally enacted in 1967, that statute only authorized the imposition of this special excise tax by "the legislative body of any class AA county . . ."  See, § 11, chapter 236, Laws of 1967.  In 1970, however, the statute was amended to cover, as well, ". . . any city of the first class having a population of 150,000 or more not situated in a class AA county, . . ."  Section 1, chapter 89, Laws of 1970, 1st Ex. Sess.  And then, in 1973, the taxing authority granted by the statute was further broadened by the following amendment, as contained in § 5, chapter 34, Laws of 1973, 2nd Ex. Sess.: 

            "The legislative body of any ((class AA)) county, and of any city ((of the first class having a population of one hundred fifty thousand or more not situated in a class AA county)), is authorized to levy and collect, a special excise tax of not to exceed two percent on the sale of or charge made for the furnishing of lodging by a hotel, rooming house, tourist court, motel, trailer camp, and the granting of any similar license to use real property, as distinguished from the renting or leasing of real property:  PROVIDED, That it shall be presumed that the occupancy of real property for a continuous period of one month or more constitutes a rental or lease of real property and not a mere license to use or to enjoy the same." 

            It is also interesting to note that this 1973 amendment, as adopted by the legislature, was significantly broader in scope than the one initially proposed.  As introduced, Senate Bill No. 2494 (which became chapter 34, supra) would only have extended the taxing power to class A and first class counties, leaving the statute unchanged with respect to cities‑-meaning that, in accordance with the prior 1970 amendment, only certain  [[Orig. Op. Page 3]] cities of the first class could impose the tax.  The expansion of the bill took place when, on September 12, 1973, the Senate approved a set of committee amendments which had the effect of granting the authority to impose the subject tax to (in the present words of the statute),

            ". . . the legislative body of any county or any city . . ."1/ 

             The question here presented is whether, by its enactment of this 1973 amendment to RCW 67.28.180, the legislature extended the particular taxing power not only to all first, second and third class cities, and code cities, but, as well, to fourth class municipalities organized and operating under the provisions of chapter 35.27 RCW, commonly known as "towns."  We answer in the affirmative. 

            We recognize that there are early cases going both ways, so to speak, on the question of whether a fourth class municipality is truly a city.  Thus, inState v. Harbor Line Commissioners, 4 Wash. 6, 29 Pac. 938 (1892) it was held that the thentown of Ballard was a "city" within the meaning of Article XV, § 1 of the state constitution relating to the establishment of harbor lines.  And, inTown of Elma v. Carney, 4 Wash. 418, 30 Pac. 732 (1892), it was similarly held that ". . . a municipal corporation of the fourth class called a 'town' . . ." was an "incorporated city" for the purposes of a statute exempting cities from the necessity for filing a certain appeal bond.  But later, inState ex rel. Czerny v. Superior Court, 70 Wash. 592, 127 Pac. 207 (1912), the Court drew a distinction between a "city" and a "town" in dealing with a statute providing for local option on the sale of intoxicating liquor and requiring that petitioners, if residents of acity, indicate ". . . the street and house number, if any, . . ." of their residence.  In considering that statute, the Court reasoned, at page 597 as follows: 

            "It is manifest that in a town of less than 1,500 population the necessity for having the signer state his street and house number in order that it may be readily ascertained whether he is in fact an elector is of minor  [[Orig. Op. Page 4]] importance, compared to the necessity of such information being furnished by him for that purpose in a city having a large population.  It would ordinarily be easy to identify an elector in a town having a small population without any such information, while such would not be the case in a populous city.  And this is manifestly the reason prompting the prescribing of the petition requirements of this law . . ."

            It is also true, as was noted by the Court in the Czerny case, supra, that the statutes classifying municipal corporations (as now codified in chapter 35.01 RCW) speak of a "first class city" (RCW 35.01.010), a "second class city" (RCW 35.01.020), a "third class city" (RCW 35.01.030) and, conversely, of a "municipal corporation of the fourth class, which shall be known as a town, . . ."  (RCW 35.01.040).  And, as you well know, there are any number of statutes now on the books which use the disjunctive phrase "any city or town."  See,e.g., RCW 35.07.090 relating to disincorporation; RCW 35.13.010 covering annexation; and RCW 35A.02.010 relating to the adoption of non-charter code city classification by "any incorporated city or town . . ."  On the other hand, RCW 67.28.180, supra, with which we are here concerned, speaks only of ". . . any county or any city, . . ." 

            But by the same token we note, for example, that although RCW 35A.02.010,supra, speaks of "any incorporated city or town"‑-in authorizing the adoption of a non-charter code city classification‑-RCW 35A.02.055‑-in dealing with the election of new officers‑-speaks only of "where a city elects to become a non-charter code city."  Yet as there used, the term "city" must also include a "town," for there is no other, separate, provision relating to the election of new officers when an incorporated town adopts non-charter code city classifications. 

            Finally, and perhaps most importantly, we note that although RCW 35.01.040,supra, identifies a town as a "municipal corporation [and not city] of the fourth class," it is nevertheless almost universal practice today, in general parlance, to refer to a town as a "fourth class city."  See,e.g.,Des Moines v. Hemenway, 73 Wn.2d 130 at 133, 437 P.2d 171 (1968), construing RCW 35.23.455; City of Union Gap v. Carey, 64 Wn.2d 43 at 46, 390 P.2d 674 (1964); and the following prior attorney general's opinions, among others:  AGO 1978 No. 12, AGO 1977 No. 18, AGO 1977 No. 4, AGLO 1976 No. 49, AGLO 1976 No. 33, AGO 1976 No. 7, AGLO 1975 No. 85, AGLO 1975 No. 51,  [[Orig. Op. Page 5]] AGO 1972 No. 24, AGO 1968 No. 36, AGO 1967 No. 41, AGO 61-62 No. 25, AGO 59-60 No. 114, AGO 57-58 No. 34, AGO 55-57 No. 245, and AGO 53-55 No. 307.2/ 

             What all of this leads to, in our judgment, is a matter of determining legislative intent on the basis of context.  Accord, the general rule of statutory construction that in construing a legislative enactment, resort must first be had to its context and subject matter.  Layton v. Home Indemnity Company, 9 Wn.2d 25, 113 P.2d 538 (1941) and cases cited therein.  Also pertinent is the principle that all statutes are to be construed in the light of their apparent purpose or object.  Clark v. Housing Authority of Town of Port Orchard, 25 Wn.2d 419, 171 P.2d 217 (1946) and cases cited. 

            Thus, as we have seen, in the context of a constitutional provision relating to harbor lines or a statutory exemption from an appeal bond requirement, a town was held to be a city in order to further an apparent constitutional or legislative purpose in State v. Harbor Lines Commissioners, supra, and in Town of Elma v. Carney, supra.  But where the discerned legislative object or purpose would have been frustrated by such a broad view of what constitutes a "city" the Court, instead, took the narrower road inState ex rel. Czerney v. Superior Court,supra.

            Here, in the case of the legislature's pertinent 1973 amendment to RCW 67.28.180,supra, a significant broadening of the statute as it then existed seems clearly to have been intended.  Before, only a city "of the first class having a population of 150,000 or more not situated in a class A county" could impose the subject special excise tax.  But as a result of the Senate Committee amendment to Senate Bill No. 2494 which was adopted and became the law, all of that restrictive language was deleted, thereby empowering the legislative body of "any city" to levy and collect the same special hotel-motel occupancy tax which only certain counties and first class  [[Orig. Op. Page 6]] cities had previously been authorized to impose.  In that context, it simply seems to us to be unrealistic to conclude that the legislature was only thinking of first, second and third class cities, and code cities, and not, as well, of fourth class municipalities or towns.

            In addition, there is one further point here worth noting.  The only discernible reason why the legislature might have meant to exclude towns from the operation of this particular law would be the relative size of a town‑-as compared to a first, second or third class city.  Conceivably, the legislature might have intended to withhold this taxing power from towns because of a thought that such municipalities might be too small to support the kind of facilities that are the subject of this legislation.  But as we have pointed out earlier in this opinion, the same 1973 amendment broadened the statute to encompass all counties‑-including even the smallest county in the most rural and sparsely populated area of the state.  Therefore, it would be an anamoly to exclude towns on the basis of that posited theory.3/ 

             We thus answer your question, as above paraphrased, in the affirmative and trust that the foregoing will be of assistance to you. 

Very truly yours,
Attorney General

Deputy Attorney General 

Senior Assistant Attorney General

                                                         ***   FOOTNOTES   *** 

1/See, Journal of the Senate, 1973 2nd.  Ex. Sess. at p. 164. 

2/On the basis of a computer search, we have actually found a total of 51 prior attorney general's opinions referring to municipalities incorporated under chapter 35.27 RCW as fourth class cities. 

3/We might also point out, in the same vein, that under RCW 35A.02.010, supra, even a fourth class municipality (or town) may adopt the classification of a code city under the Optional Municipal Code.  And if it were to do so, the resulting city would then clearly have the power to impose the special excise tax authorized by RCW 67.28.180 even though it would still be just as "small and insignificant," population and area wise, as before.  See, RCW 35A.11.020 and 35A.11.030.