TAXATION ‑- EXCESS LEVIES ‑- SPECIFIC SUM

TAXATION ‑- EXCESS LEVIES ‑- SPECIFIC SUM

1. A proposition submitted to the electorate of a school district to obtain authorization for the levy of property taxes in excess of the specific and aggregate levy limitations may be in terms of the rate of millage to be authorized to be levied or it may be in terms of the specific amount of money authorized to be levied.

2. Property taxes must be levied in specific amounts of money, even in situations where the levy is pursuant to authority granted by the electorate of the taxing district to exceed the specific and aggregate limitations, which authorization has been stated in terms of the rate of levy so authorized.

Opinion of January 5, 1951, to the Prosecuting Attorney of Pierce County [[Opinion No. 49-51-416]]is hereby overruled.

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                                                                 August 20, 1951

Honorable John Panesko
Prosecuting Attorney, Lewis County
Chehalis, Washington                                                                                                              Cite as:  AGO 51-53 No. 104

Attention:  J. D. Searle

Dear Sir:

            We have before us your correspondence requesting our opinion on certain questions relating to the manner of levy of property taxes, which questions may be restated as follows:

            1. Where the electorate of a school district vote on a proposition to authorize a property tax levy in excess of its specific levy limitation and the constitutional aggregate levy limitation, must such proposition state the specific sum of money so authorized to be levied, or is it adequate that it state the maximum rate of millage authorized as an excess to such limitations?

            2. Where a school district has been authorized by its electorate to levy a  [[Orig. Op. Page 2]] property tax of ten mills in excess of specific and aggregate levy limitations, must theresolution making the levy state the specific sum levied, or is it adequate that the levy be in terms of a rate of millage to be applied to the assessed valuation of all taxable property in the district?

            Our conclusions may be summarized as follows:

            1. A proposition submitted to the electorate of a school district to obtain authorization for the levy of property taxes in excess of the specific and aggregate levy limitations may be in terms of the rate of millage authorized to be levied or it may be in terms of the specific amount of money authorized to be levied.

            2. Property taxes must be levied in specific amounts of money, even in a situation where the levy is pursuant to authority granted by the electorate of the taxing district to exceed the specific and aggregate limitations, which authorization has been stated in terms of the rate of levy so authorized.

                                                                     ANALYSIS

            Your questions are complicated and must be carefully separated before the applicable constitutional and statutory provisions are applied.  The situation is the common one where the directors of a school district decide by board action that sufficient moneys for anticipated current expenses for the forthcoming year will not be raised by a tax levy within the specific twelve mill limitation established by statute (sec. 11238-1e Rem. Supp. 1945, as last amended by chapter 255, Laws of 1951), such limitation also being within the framework of the forty mill aggregate limitation established by Amendment 17 to the Washington Constitution and implemented by the above statute.  See nUnion High School District v. Taxpayers of Union High School District, 26 Wn. (2d) 1, 172 P. (2d) 591.  Acting pursuant to the procedures outlined therein for the levy of taxes by the school district at a rate in excess of those limitations, by a resolution of the board there is submitted to the electorate of the school district a proposition for the levy of taxes in excess of those limitations, to be voted upon at a special election.

            In applying these provisions a distinction must be made between the action of the electorate upon a proposition to authorize a levy to be made from the action by the board of directors of the school district or the board of county commissioners (as the case may be, depending upon the classification of the school district)in making the actual levy.  Taxes arelevied by the governing bodies of the particular taxing district, or by the board of county commissioners acting on behalf of the taxing district pursuant to a district budget prepared and submitted by its governing body.  For provisions relative to school districts, see section 1, chapter 28, Laws of 1933 (Rem. Rev. Stat.  [[Orig. Op. Page 3]] Supp. 4867-12) and section 75, chapter 130, Laws of 1925, Ex. Sess., as amended by section 1, chapter 37, Laws of 1939 (Rem. Rev. Stat. Supp. 11236).  The limitations on the rate of levy allowable for each district as set by Amendment 17 and chapter 255,supra, may be exceeded by the respective board in making the levy only where it has been authorized by the electorate to levy in excess of such limitation.  After setting forth the aggregate levy limitation, in terms of rate of levy (viz. "forty mills on the dollar of assessed valuation"), Amendment 17 provides:

            "Such aggregate limitation or any specific limitation imposed by law in conformity therewith may be exceeded only

            (a) by any taxing district when specifically authorized so to do by a majority of at least three‑fifths of the electors thereof voting on the proposition to levy such additional tax * * *"

            After setting forth the same aggregate levy limitation, in terms of rate of levy, chapter 255 sets forth the specific limitations on the levy for certain taxing districts, including school districts,again in terms of rate of levy (viz. "the levy by or for any school district shall not exceed twelve mills"), and then provides:

            "Any * * * school district * * * may levy taxes at a rate in excess of the rate specified in this section, when authorized so to do by the electors of such * * * school district * * * by a three‑fifths majority of those voting on the proposition at a special election, * * *."

            It will be seen that the electorate are referred to by the board for authority to levy in excess of the constitutional and statutory limitations.  The actual levy is made by the respective board acting pursuant to such authority.

            We now pass to your first question of whether the proposition submitted to the electorate must state the specific amount of money which the board may levy.  You have in mind the following provision contained in section 74, chapter 130, Laws of 1925, Ex. Sess., as amended by section 1, chapter 270, Laws of 1947 (sec. 11235 Rem. Supp. 1947):

             [[Orig. Op. Page 4]]

            "All taxes shall belevied or voted in specific amounts, and the rate per centum of all taxes * * * shall be calculated and fixed by the county assessors of the respective counties * * *."  (Emphasis added.)

            The first impression upon seeing the term "levied or voted" as incorporated into section 11235 Rem. Supp. 1947, an enactment subsequent to the forty mill levy limitation and its system of referring to a vote of the people any proposition to levy in excess of certain established limitations, is to take it as a reference to such a referral to the electorate.  However, historical research discloses the use of the identical phrase in the same context in the forerunners to the present section 11235 back to 1893.  See:

            Section 74, chapter 130, Laws of 1925, Ex. Sess.

Section 1, chapter 3, Laws of 1920, Ex. Sess.

Section 62, chapter 61, Laws of 1897.

Section 63, chapter 124, Laws of 1893.

            Note also the use of that term in section 3, chapter 61, Laws of 1929 (Rem. Rev. Stat. 11231), and its predecessor, section 3, chapter 138, Laws of 1909.  Very obviously, the term "all taxes shall be levied or voted in specific amounts" has no reference to the vote of the electorate of a taxing district on a proposition to exceed the relatively recent levy limitations.  It probably refers to a situation, such as exists in townships, where the people themselves "vote" the taxes to be levied.  Their vote constitutes the levy.  Interestingly, the statutes concerning townships likewise once included a provision that taxes be "levied or voted in specific amounts," and then provided that taxes were "voted" at a town meeting.  See section 8, chapter 13, Laws of 1923 (Rem. Rev. Stat. 11445), since repealed and superseded by sections 3 and 4, chapter 148, Laws of 1945 (sec. 11449-1 Rem. Supp. 1945).  Electors of townships still "vote" their taxes, and they are thereby levied.

            Having established that the phrase "levied or voted" was not included in section 11235 to provide for the situation where the electorate merely authorizes by its vote a certain excess levy by its governing body (or the board of county commissioners), an examination of the terms of chapter 255 and Amendment 17, themselves, discloses that a proposition to allow an excess of the limitations may be stated in terms of the rate of levy permissible, and need not state thespecific sum of money authorized to be levied.  First, the amendment refers to the limitation in terms of rate, and  [[Orig. Op. Page 5]] then states that "such aggregate limitation" may be exceeded in the manner therein provided.  No reference is made to a sum to be authorized, but rather the reference is to the limitation therein set (in terms of rate of levy) and how such limitation may be exceeded.

            In chapter 255, as we have seen, the aggregate and specific limitations are in terms of rate of levy, and then it is provided that a school district

            "may levy taxesat a rate in excess of the rate specified in this section,when authorized so to do * * *."  (Emphasis added.)

            Both enactments speak in terms of rate of levy and provide that excesses of those rates may be authorized.

            We see no reason why the proposition may not grant such authority in terms of a certain excess rate of levy.  On the other hand, there would be no objection to such a proposition stated in terms of a sum of money to be authorized.  We realize that the proposition stated in terms of rate of levy allows a variation in the amount of money which may be levied due to variations in assessed valuation of the taxable property in the district.  However, note that such a vote must not be more than twelve months prior to the levy, so it is not likely that any considerable change in valuations will be possible.

            We recognize that the conclusion reached above is in conflict with our opinion of January 5, 1951, to the prosecuting attorney of Pierce County [[Opinion No. 49-51-416]].  That opinion is hereby overruled.

            Your second question is whether the board which levies a property tax in excess of the aggregate and specific limitations pursuant to authorization by the district's electorate in a proposition stated in terms of the rate of additional levy must levy such taxes in aspecific sum.  Section 11235 Rem. Supp. 1947,supra, controls the procedure for the making of the actual levy.  The tax must be levied in a specific sum of money.  A levy in terms of rate of levy is in violation of that provision, and would be improper.

Very truly yours,

SMITH TROY
Attorney General

C. JOHN NEWLANDS
Assistant Attorney General