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Bob Ferguson

AGO 1967 No. 16 - May 4 1967
Attorney General John J. O'Connell


The real property tax exemption provided for by § 2, chapter 168, Laws of 1965, Ex. Sess., with regard to certain retired persons, is applicable against taxes levied by the city of Waitsburg under authority of its territorial charter.

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                                                                    May 4, 1967

Honorable Vaughn Hubbard
State Representative
District 11-A
Waitsburg, Washington 99361

                                                                                                                 Cite as:  AGO 1967 No. 16

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Is the real property tax exemption provided for by § 2, chapter 168, Laws of 1965, Ex. Sess., applicable against taxes levied by the city of Waitsburg under authority of its territorial charter?

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


            You have explained that the city of Waitsburg is the only city in the state of Washington still operating under the provisions of a territorial charter.  In response to our request, you have kindly made available to us a copy of the territorial charter.

            Chapter 2, § 3 of the territorial charter contains the following provision:

            "The city of Waitsburg has power to assess, levy and collect taxes for general municipal purposes, not to exceed one half of one per centum per annum, upon all property, both real and personal, within the city, which is by law, taxable  [[Orig. Op. Page 2]] for territorial and county purposes, and to levy and collect special taxes, as hereinafter provided: but all taxes for general and special municipal purposes shall not exceed in any one year one half of one per centum on the property assessed:  Provided, however, That the above limitations shall not apply to local assessments in assessment districts."

            Chapter 35.30 RCW contains a codification of statutes applicable to those cities ". . . which were created by special charter prior to the adoption of the state constitution, and which have not since reincorporated under any general statute . . ." RCW 35.30.010.

            Among these statutes is § 3, chapter 69, Laws of 1899, reenacted as § 35.30.030, chapter 7, Laws of 1965 (RCW 35.30.030).  This statute reads as follows:

            "The city council shall have power to provide by ordinance a complete system for the assessment, levy, and collection of all city taxes.  All taxes assessed together with any percentage imposed for delinquency and the cost of collection, shall constitute liens on the property assessed from and after the first day of November each year; which liens may be enforced by a summary sale of such property, and the execution and delivery of all necessary certificates and deeds therefor, under such regulations as may be prescribed by ordinance or by action in any court of competent jurisdiction to foreclose such liens:  Provided, That any property sold for taxes shall be subject to redemption within the time and within the manner provided or that may hereafter be provided by law for the redemption of property sold for state and county taxes."

            In other words, the city of Waitsburg, as the only remaining territorial charter city in the state of Washington, is empowered to levy and collect property taxes both by virtue of a charter provision and by virtue of a statute.

            We now turn to the pertinent provisions of chapter 168, Laws of 1965, Ex. Sess.  The nucleus of this law is contained in § 2 (RCW 84.36.126) which reads, in material part, as follows:

            "The following persons, as heads of household, shall be exempt from the first fifty dollars of real property taxes due and  [[Orig. Op. Page 3]] payable in any one year, provided they come within the following provisions: . . ."

            This statute was enacted by the legislature in 1965, in implementation of a constitutional amendment (House Joint Resolution No. 7) which was submitted to the voters at the November, 1966, general election.  The constitutional amendment, as approved by the voters, reads, in material part, as follows:

            "Notwithstanding the provisions of Article VII, § 1 (Amendment 14) and Article VII, § 2 (Amendment 17), the following tax exemption shall be allowed as to real property:

            "The legislature shall have the power, by appropriate legislation, to grant to retired property owners relief from the property tax on the real property occupied as a residence by those owners.  The legislature may place such restrictions and conditions upon the granting of such relief as it shall deem proper.  Such restrictions and conditions may include, but are not limited to, the limiting of the relief to those property owners below a specific level of income and those fulfilling certain minimum residential requirements."

            In AGO 65-66 No. 108 (copy enclosed), we concluded that the real property tax exemption provided for by chapter 168, Laws of 1965, Ex. Sess., supra, is applicable on a prorated basis against all real property taxes due and payable in a given year on the basis of levies by the state and all of the various taxing districts against qualified residential property.  We did not make specific reference to the situation of the city of Waitsburg in that opinion, for the reason that it had not been called to our attention.

            Article XXVII, § 2, of the state constitution reads in material part:

            "All laws now in force in the Territory of Washington, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature: . . ."

            This constitutional provision keeps the territorial charter of Waitsburg in force in so far as it is not repugnant to the constitution and until altered or repealed by the legislature.   [[Orig. Op. Page 4]]Tekoa v. Reilly, 47 Wash. 202, 91 Pac. 769 (1907);Tacoma Land Co. v. Pierce County, 1 Wash. 482, 25 Pac. 904 (1890).  In the latter case the court said:

            "The constitutional prohibition against special legislation to incorporate any town or village, or to amend the charter thereof [Article II, § 28 (8)], has no bearing upon this matter.  Such constitutional enactments are purely prospective.  They do not affect existing special charters.  The city of Tacoma continued, and would continue, to hold its special charter, in all its features not necessarily repugnant to other constitutional provisions, until subsequent general legislation, clearly applicable to it, should modify or sweep away its charter.  And we hold that there has been no such applicable legislation."

            It is the general rule that a special municipal charter may be amended either expressly or by necessary implication by general legislation but there must be an unmistakable intention on the part of the legislature to make such change.  62 C.J.S., Mun. Corp., § 92; 2 McQuillin, Mun. Corp., § 931 (3rd ed.).  McCormick v. People, ex rel., 139 Ill. 499, 28 N.E. 1106 (1891); May v. City of Laramie, et al., 58 Wyo. 240, 131 P.2d 300 (1942).  The court said in the former case:

            "It may be further observed that, as under our present Constitution, legislation upon most subjects must be by general law, the courts should be more readily inclined to favor a construction which would apply general laws to matters covered by prior special legislation, than they would have been if the General Assembly still retained the power to enact special laws applicable to the same subjects."

            Turning again to chapter 168, Laws of 1965, Ex. Sess., § 1 thereof, RCW 84.36.125, expresses the legislative intent as follows:

            "Due to the tremendous rise in living costs during the past decade, including increased property taxes, the failure of federal old age and survivors insurance and similar types of pension systems to adequately reflect in their pension payments these costs, and because savings once deemed adequate for  [[Orig. Op. Page 5]] retirement living are now grossly inadequate, it is therefore deemed necessary that the legislature now grant people retired on fixed incomes some relief from real property taxes.  This relief must be granted to insure that thousands of persons now retired on fixed incomes can remain in possession of their homes, thus not becoming a burden on state or local government."

            It was said inBagley v. Gilbert, 63 Ida. 494, 122 P.2d 227 (1942):

            ". . . When the legislature declares a matter to be of general state concern and declares a public policy with respect thereto, such general state law will prevail over any special city charter provisions to the contrary."

            We conclude that the state wide [[statewide]]policy and purpose expressed in RCW 84.36.125,supra, clearly demonstrates a legislative intent that the real property tax exemption provided for by chapter 168, Laws of 1965, Ex. Sess., shall apply to all real property taxes levied in the state including those levied by municipalities under territorial charters.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney Generalp