AGO 1952 No. 318 - May 29 1952
LEVIES BY TAXING DISTRICTS
Neither a fire protection district, a sewer district nor a water district may vote a special levy at the same election at which the district is voted into existence.
Proceeds of bond issues for capital purposes, other than replacement of equipment, may not be used to purchase a fire engine to replace one already possessed, but may be used to purchase an additional engine.
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May 29, 1952
Olympia, Washington Cite as: AGO 51-53 No. 318
Attention: Mr. Donald C. Sampson
Receipt is acknowledged of your letter of May 8, 1952, in which you ask the following questions:
"May a taxing district (specifically a fire protection district, or a water district, or a sewer district) vote a special levy at the same election in which the said taxing district is voted into existence or incorporated for the first time? If so, may it then issue tax anticipation warrants?
"The forty-mill statute authorizing the issuance of general obligation bonds for capital purposes contains a phrase 'other than replacement of equipment.' Please advise us your construction of this phrase and your conclusions as to whether a fire protection district may (a) from the proceeds of such bonds, purchase a fire engine which is a replacement of a fire engine currently in use, [[Orig. Op. Page 2]] (b) use the proceeds of the bonds to purchase a fire engine which is additional equipment, representing an increase in the total of fire engines owned and operated by the district."
Our conclusions may be summarized as follows:
1. None of the three types of taxing districts mentioned in your inquiry may vote a special levy at the same election at which the district is voted into existence.
2. General obligation bonds may not be issued for the purpose of replacing any type of equipment, including fire engines, but may be issued for the purpose of original capital increases or the acquiring of equipment which does not serve to replace equipment already possessed.
Your first question is asked in general terms respecting taxing districts. However, in order to answer it reference must be had to statutes relative to the various types of districts. By RCW 84.52.052 (§ 1, chapter 176, Laws of 1941 as last amended by section 3, chapter 23, Laws of Second Ex. Sess. of 1951, RRS § 11238-1e), various enumerated types of districts, including fire protection districts, sewer districts and water districts, are authorized to make levies in excess of the forty mill limitations when approved by a vote of the people.
However, the procedure for placing the matter before the people must be found in each particular statute. So, with respect to sewer districts, expenditures for general construction and operation cannot be made until a comprehensive plan has been adopted. RCW 56.16.010 (section 1, chapter 26, Laws of Second Ex. Sess. of 1951, Rem. 1941 Supp. § 9425-23) provides that the sewer commissioners shall submit their comprehensive plan to the electors for adoption and may, at the same election, submit a proposition to incur an indebtedness payable from annual tax levies in excess of the forty mill limitation. The election contemplated by this section can only be had after the district has been formed and the commissioners have been elected since they must devise the comprehensive plan and determine the need for the excess levy. The procedure relative to water districts is almost the same, RCW 57.16.020 (section 1, chapter 25, Laws of Second Ex. Sess. of 1951, RRS § 11588).
[[Orig. Op. Page 3]]
With respect to fire protection districts there is no similar requirement relative to a comprehensive plan but RCW 52.36.010 (section 28, chapter 34, Laws of 1939, RRS § 5654-128) provides:
"Special elections submitting propositions to the electors of a district may be called at any time upon resolution of the board, and shall be called, noticed, conducted, and canvassed in the same manner and by the same officials as for the election to determine whether the district shall be created. The qualifications for electors at all district elections shall be the same as for electors at general state and county elections."
It will be noted that here again the commissioners of the district are the ones who must call the special election. There is no means of voting a special levy except by a special election. In the procedure specified in each case for the formation of the district, the act specifies that the proposition for the formation of the district shall be submitted to the people by the county commissioners along with nominations for the first commissioners. There is no statutory authority for the county commissioners to propose a proposition for a special levy, nor are they substituted for the district commissioners by any statutory authority.
It is, therefore, our opinion that it is not possible to submit to the electors a proposition for an excess levy at the time of submitting the proposition for the organization of any of the three types of districts mentioned.
Your second question deals with the application to be given to the words "not including the replacement of equipment." RCW 84.52.056 (section 1, chapter 176, Laws of 1941 as last amended by section 4, chapter 23, Laws of Second Ex. Sess. of 1951, RRS § 11238-1e) reads in part as follows:
"Any municipal corporation otherwise authorized by law to issue general obligation bonds for capital purposes may, at an election duly held after giving notice thereof as required by law, authorize the issuance of general obligation bonds for capital purposes only,which shall not include the replacement of equipment, and provide for the payment of the principal and interest of such bonds by annual levies in excess of the tax limitation contained in RCW 84.52.050 to 84.52.056, inclusive. * * *" (Emphasis supplied)
[[Orig. Op. Page 4]]
It seems apparent from the language used that the legislature did not intend the privilege conferred by this section to be applicable to replacement and maintenance charges. Equipment is generally understood to mean the facilities by which one carries on his duties as distinguished from those which are consumed in carrying on the work. United States Rubber Company v. American Bond Company, 86 Wash. 180, 149 Pac. 706. We believe that a fire engine is that type of item for a fire protection district and, therefore, it is within the classification of equipment. A fire engine purchased for the purpose of replacing one presently in use would, in our opinion, under the plain terms of the statute, be a prohibited use for the proceeds of bonds issued under this section. However, a fire engine which is additional equipment representing an increase in total equipment possessed by the district as distinguished from the replacement of equipment which was retired, could be properly purchased from the proceeds of such a bond issue.
Very truly yours,
LYLE L. IVERSEN
Assistant Attorney General