MUNICIPAL TAX LEVIES -- CORRECTION OF ERROR BY COUNTY OFFICERS IN CERTIFICATION, OR TRANSMISSION

MUNICIPAL TAX LEVIES -- CORRECTION OF ERROR BY COUNTY OFFICERS IN CERTIFICATION, OR TRANSMISSION

Where municipal officials make lawful tax levy, inadvertent error in transmission by county officials can be corrected, within reasonable time.

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                                                                    June 4, 1953

Washington State Tax Commission
Insurance Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 66

Attention:  Jennings P. Felix

Gentlemen:

            You have directed the attention of this office to an apparent contradiction between an opinion to the State Auditor, dated December 9, 1945, and an opinion to the County Commissioners of Clallam County, dated December 15, 1952 [[Opinion No. 51-53-439]].  The problem concerns annual tax levies by municipal corporations.

            The question may be stated as follows:  When a municipal corporation regularly determines its tax levy for the succeeding year and certifies that figure to the county assessor or county commissioners, can a subsequent inadvertent omission of a part of the levy by the assessor or commissioners prevent that part of the levy from being extended upon the tax rolls and collected?

            In our opinion the answer to this question is "No;" and the opinion of December 15, 1952 [[Opinion No. 51-53-439]], insofar as it states otherwise, is hereby overruled and withdrawn.

                                                                     ANALYSIS

            Article VII, section 9 of the Constitution provides:

            "* * * For all corporate purposes, all municipal corporations may be vested with authority toassess and collect taxes and such taxes shall be uniform in respect to persons and property within the jurisdiction of  [[Orig. Op. Page 2]] the body levying the same."  (Emphasis supplied)

            Article XI, section 12, provides:

            "The legislature shall have no power to impose taxes upon counties, cities, or towns or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof, the power toassess and collect taxes for such purposes."  (Emphasis supplied)

            The word "assess" as used in these sections has been held to mean "charge."  State ex rel. Seattle v. Carson, 6 Wash. 250.  We think it is used in this context as equivalent to "levy:"  see the usage inOwings v. Olympia, 88 Wash. 289, and inOpportunity Township v. Kingsland, 194 Wash. 229, 242.

            Pursuant to these provisions the legislature has authorized cities to levy taxes:  in first class cities, RCW 35.22.280 (2); second class cities, RCW 35.23.500; third class cities, RCW 35.24.340; fourth class cities and towns, RCW 35.27.370 (8); unclassified cities, RCW 35.30.030.  Various other provisions authorize particular or special levies.

            There is no doubt that cities are authorized to levy taxes.  The question is whether or not the county commissioners have power to revise such a levy.  If not, it is clear that no action by them, considered or inadvertent, could deprive a city of the benefit of a lawful levy.  No specific statute authorizes such a revision.  A short summary of the procedures by which municipal levies are made will demonstrate that this would be impossible.

            After assessment values in the county have been fixed and reported to the city authorities, the city departments estimate their needs for the ensuing year, expected revenues aside from taxes are stated, a budget is formulated, and hearing held upon it.  The procedures are set out in RCW 35.32.020 ‑ 35.32.080 (city over 300,000), RCW 35.33.030 ‑ 35.33.070 (other first class and second and third class cities), and RCW 35.27.420 ‑ 35.27.440 (fourth class cities and towns).

            Following the hearing the town council or commission determines as a single figure the necessary tax for the succeeding year.  (e.g. RCW 35.33.070) The hearing provided by these statutes occurs on the first Monday in October, or before that date in cities over 300,000.  It may be extended for five days in other first class and second and third class cities.

             [[Orig. Op. Page 3]]

            At the same time the county commissioners are following similar procedures under RCW 36.40.010 ‑ 36.40.090.  Their hearing is held on the first Monday in October and may be extended for five days.  This hearing is strictly on the county budget, and consequently the county levy.

            Cities of the first class under 300,000 and second and third class cities certify the tax levy figure to the county commissioners when it has been fixed; RCW 35.33.070.  If the hearing is extended this may be as late as the first Friday in October (Note:  RCW 84.52.020 makes this date the first Wednesday in October, apparently a conflict.  RRS 11236 enumerates the taxing districts required so to file.)  RCW 84.52.070 requires the county commissioners to certify the city levy figures on or before the second Monday in October, to the county assessor.  Under the same statute, cities over 300,000 and cities and towns of the fourth class certify directly to the assessor on the same date (See RRS 11239).  The county commissioners never see levy figures from the last two classes of cities.  They have only a single figure from other cities, and could make no rational revision without further information.  They may not receive that figure until the end of the business day immediately preceding the day on which they must certify it to the assessor.  It is clear that the statutes do not contemplate any function of the county commissioners in regard to city levies other than transmittal.  See opinion to prosecuting attorney of Cowlitz County dated October 26, 1915.  Nor has the county assessor any function, other than to reduce levies beyond the constitutional and statutory millage to that limit.  RCW 84.52.010 (1).

            The opinion to the Clallam County Commissioners involved the following situation:  The city of Port Angeles certified a levy, including an authorized special levy, to the commissioners, who inadvertently omitted the special levy in their certification to the assessor.  The opinion held that this error could not be corrected.  It discussed at length thecounty budget provisions (RCW 36.40.010et seq.), and cited a letter to the Prosecuting Attorney of Garfield County, dated December 4, 1936.  On the facts that letter would appear to err.  It follows an opinion to the Superintendent of Public Instruction, on December 20, 1935, which correctly holds that a special levy authorized by an electionafter the county levy has been fixed cannot subsequently be made a part of the county levy; RCW 84.52.052, as amended by section 1, chapter 189, Laws of 1953; Sims v. Bremerton, 190 Wash. 62; but this opinion is not in point.

             [[Orig. Op. Page 4]]

            The county commissioners cannot revise a city levy.  The county assessor has no discretion in cases where he may revise such a levy.  It is fundamental that they could not do by mistake what they could not do by intention.  There is no doubt that such an error should be corrected if discovered within a reasonable time.  InState ex rel. Ross v. Headlee, 22 Wash. 126, the supreme court decided that a county auditor could be compelled to extend upon the tax rolls a corrected levy, where the county commissioners had made an unintentional mistake.  The court said that

            "* * * it would be a harsh rule to lay down that a mistake which they had made in the transaction of their business could not be rectified.  * * *"

            We conclude that an inadvertent error in transmittal or certification of a city tax levy can be corrected within a reasonable time; and that the opinion of December 15, 1952 [[Opinion No. 51-53-439]], should be and is hereby overruled.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General