Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1953 No. 495 -
Attorney General Don Eastvold


 An irrigation district board may not levy an assessment under RCW 87.32.060 before the assessment roll has been equalized pursuant to RCW 87.32.040.

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                                                                  March 17, 1953

Honorable Robert S. Campbell
Prosecuting Attorney
Grant County
Ephrata, Washington                                                                                                             Cite as:  AGO 51-53 No. 495

 Dear Sir:

             You have inquired whether or not an irrigation district board may levy an assessment under RCW 87.32.060 before the assessment roll has been equalized pursuant to RCW 87.32.040.

             It is our conclusion that it may not.


             Since much of the difficulty arising in connection with the construction of tax laws stems from a failure to properly define tax terminology, let us preface this analysis with some definitions:

             Assessment ‑ "Assessment is the listing and valuation of property liable to taxation according to law."  Northwestern Improvement Co. v. Henneford, 184 Wash. 502, at 508, 51 P. (2d) 1083.

             Levy ‑ "Strictly speaking, a levy is the legislative act, whether state or local, which determines that a tax shall be laid, and fixes its amount."  3 Cooley on taxation (4th Ed.) section 1012.

             Equalization of Assessments ‑ "Equalization of assessments has, for its general purpose, to bring the  [[Orig. Op. Page 2]] assessments of different parts of a taxing district to the same relative standard, so that no one of the parts may be compelled to pay a disproportionate part of the tax.  * * *" 3 Cooley on Taxation (4th Ed.) section 1195.

             In the original act setting up irrigation districts, Laws of 1889-90, page 671, the legislature set up the mechanics for making assessments and equalizing them in sections 18, 19, 20 and 21.  Section 22 begins with this language:

             "The board of directors shall then levy an assessment."  Manifestly, the legislature intended in the original act, supra, that the assessment roll be equalized as a necessary preliminary to the levy of the assessment.  Section 22 was amended by chapter 157, Laws of 1941.  The language used reads:

             "The board of directors shall in each year before said roll is delivered by the secretary to the respective county treasurer levy an assessment."

             Was it the legislative intent in employing the language cited in the 1941 act, supra, to permit a deviation from the sequence required in the act it amended?  It is our conclusion that it was not.  An irrigation district has perhaps greater potential variation in degree of benefit per acre than any other type of district.  There are many variables involved in arriving at an equitable determination of the potential benefit to each taxpayer's land from one year's irrigation. RCW 87.32.010 provides in part as follows:

             "District assessments shall be made in proportion to the benefits accruing to the lands assessed, and equitable credit shall be given to any lands having a partial or full water right.  * * *"

             It is evident that the land owners of an irrigation district will have occasion to call upon the district board when it meets as a board of equalization to air their objections to the assessment roll as filed.  Since the assessments are to be made proportionate to the benefits accruing, it is essential that an opportunity to be heard be afforded each taxpayer within the district by an equalization board.  Otherwise, the validity of the tax could be subjected to an attack as a deprivation of property without due process of law.  It might also be vulnerable to attack on the basis that it fails to conform to the uniform taxation provisions contained in our state constitution in Article VII, section 9, and the Fourteenth Amendment.

              [[Orig. Op. Page 3]]

            RCW 87.32.060 provides for a levy to cover probable delinquencies and also an estimate of the amount of assessments to be made against lands owned by the district.  The same section provides for a levy of an amount not to exceed twenty-five per cent of the whole levy for the purpose of creating a surplus fund which may be used for any district purpose.  In other sections of the code relating to districts whose financial structure is similar to the irrigation district section, there is no room for doubt as to the sequence required in the taxing process.  RCW 68.16.210, relating to cemetery districts, and RCW 52.16.030, relating to fire protection districts, each provides unequivocally that the levy follows the equalization of assessments.  In the recent case ofPuget Sound Power and Light Company v. Cowlitz County, 38 Wn. (2d) 907, 234 P. (2d) 506, the taxing process was outlined as having four steps: (1) The assessment, (2) the equalization of assessments, (3) the corporate authorities' estimate of the amount of money needed for the respective taxing district uses, and (4) the levy of the tax in specific sums by the taxing authorities.  The court stated, "then, for the first time, the concept of the tax is fully realized."

             Although the statutes do not specifically require that the equalization of assessments precede the levy of the tax, in view of the limitations imposed by the constitution and the cases cited, the implication that such a requirement was intended is unavoidable.

 Very truly yours,
Attorney General 

Assistant Attorney General