Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1950 No. 358 - Oct 3 1950
Attorney General Smith Troy


In levying a tax for purposes of school district of the first class, the board of county commissioners act ministerially and may not question the need of the amounts asked.

                                                                 - - - - - - - - - - - - -

                                                                 October 3, 1950

Honorable Charles O. Carroll
Prosecuting Attorney, King County
County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 49-51 No. 358

Dear Sir:

            You have requested an opinion upon the question as to whether or not the Board of County Commissioners is required to blindly accept the budgets submitted by First Class School Districts or whether as part of their ministerial duties they may go behind the budgets submitted by the school districts and question the need of the amounts asked.

            The conclusions reached may be summarized as follows:

            In levying a tax for purposes of a school district of the first class, a board of county commissioners acts ministerially and may not question the need of the amounts asked.


            It has come to your attention that certain school districts of the first class are submitting budgets for the approval of the King County Commissioners, which budgets call for funds in excess of the needs of such school districts for the ensuing year.

            You further state:

            "The purpose of asking for the excess budgets is so that the school districts may retire outstanding bonds which would not be due and could not be called for in the year in which the budgeted funds are requested.  In other words, it amounts to the school districts going into the brokerage business."

            The respective responsibilities of boards of county commissioners and school directors of first class districts with relation to the ascertainment and levying of taxes for bond redemption purposes are not clearly defined and successive legislative enactments have, if anything, created greater confusion.

             [[Orig. Op. Page 2]]

            The case ofState ex rel. Evers v. Byrne, 32 Wash. 264, early established the proposition that the levy, by the board of county commissioners, of a school tax determined by the school board and by them certified to the commissioners, constituted a ministerial act and the court affirmed the granting of a writ of mandate requiring the county commissioners to levy school taxes for the payment of interest upon certain school bonds owned by the relator.  The court said:

            "Did the law require appellants [county commissioners] to make this levy?  These bonds were issued under authority of the act of 1890.  Session Laws 1889-90, p. 45.  Section 5 of that act provides that 'the school directors of said district must ascertain and levy annually the tax necessary to pay the interest upon such bonds as it becomes due.'  This act was carried forward into Hill's Code, Vol. 1, title 50, ch. 4.  By an act of the legislature, as found in chapter 118, p. 356, of the Session Laws of 1897, the provisions of the said act of 1890 were expressly repealed.  The act of 1897 purported to cover the entire law relating to the system of public schools in this state.  The act declares that it 'shall be known and cited as the Code of Public Instruction of the State of Washington.'  By the repeal of the act of 1890, the provision above quoted requiring the directors of school districts to ascertain and annually levy the tax necessary to pay interest upon school bonds as it becomes due was also repealed.  The procedure in that particular was changed by § 97 of the act of 1897, which provides that the directors shall still annually ascertain the necessary amount, but, instead of making the levy of the tax themselves, they are required to annually report the amount to the board of county commissioners, and the latter are required to make the levy for its collection as in the case of other taxes.  The duty of the county commissioners to levy the tax when it has been returned and certified to them by the school directors seems to be clear.  The petition and record here show that the directors of school district No. 1 of Thurston county annually certified the amount required to pay interest upon these bonds, but appellants neglected and declined to make the required levy.  It is contended that the act of 1897 is independent, and not amendatory, in its nature, and that it was, therefore, not intended to change the method of tax levies in the cases of then outstanding bonds unless school districts and bondholders should agree to call in outstanding bonds, and issue in lieu thereof new bonds under the later act.  We think it was the intention that the new act should supplant the old one as to the method of procedure, and that method  [[Orig. Op. Page 3]] must be followed in all cases, unless it shall have the effect to impair some contractual right, which is not the case here.

            "It is further urged by appellants that it is not competent for the legislature to provide that one municipal corporation shall exercise the taxing functions of another, and that, if respondent's position here is correct, then the school district is no longer authorized, through its executive body, to determine and levy taxes necessary for the payment of its debts and maintenance.  The law does, however, provide that both the power and duty of determining the amount rests with the officers of the school district, but the more ministerial duty of making a levy therefor devolves upon another.  It thus appears that none of the essential functions of local control relating to the amount of the tax that shall be imposed are in any degree affected by the law.  No authorities are cited upon this point.  The method provided has, no doubt, been pursued by the school districts of this state for the past six years, and, in the absence of an authoritative showing that such a method is inconsistent with well-established principles, it should, for that reason, if for no other, be held that it is unassailable."

            While under the aforesaid "Code of Public Instruction of 1897" there was no provision made for school districts of the first class, section 97 of that act (which is construed in the quotation above) is contained in a sub‑chapter [[subchapter]]thereof dealing exclusively with schools in cities of over 10,000 inhabitants, and this legislation is quite obviously the forerunner of that which in the school code of 1909 was to relate to first class districts.  Thus we find substantially the same language as that of section 97, Laws of 1897, p. 393 incorporated into chapter 97, Laws of 1909, as section 19 thereof.  That section, with slight changes, immaterial here, has been subsequently codified as a 4512, Rem. and Bal. Code, Rem. 4512, Rem. Comp. 4809 and Rem. Rev. Stat. 4809, which reads as follows:

            "The Board of directors shall annually, at a meeting next preceding the annual tax levy for state and county purposes, report to the board of county commissioners an estimate of the amount of funds, in addition to estimated receipts from the state and county apportionments for said district, required  [[Orig. Op. Page 4]] for the support of the schools, for the purchase of school sites, the erection and furnishing of school buildings, the payment of interest upon all bonds issued for school purposes, and the creation of a sinking fund for the payment of such indebtedness, if any, and the county commissioners are hereby authorized and required to levy and collect such additional amount of funds, the same as other taxes:  Provided, that for the purpose of the purchase of school sites and the erection of buildings the board of directors of a district of the first class in cities having a population of fifty thousand or less, may annually expend a sum not exceeding fifty thousand dollars; in cities having a population greater than fifty thousand and less than one hundred thousand, a sum not exceeding one hundred thousand dollars; in cities having a population greater than one hundred thousand and less than two hundred thousand, a sum not exceeding two hundred thousand dollars, and for every additional fifty thousand of population beyond two hundred thousand, a further sum of fifty thousand dollars:  And provided further, that when any greater expenditure shall be required for said purposes, in any one current school year, the question shall be submitted to a vote of the electors of the district at the time and place the board of directors may appoint.  The board of directors shall, previous to such election, designate in one daily paper published in the district, if there be one, if not, then in such weekly papers as may be selected by the board, the place, or places where such election shall be held, the locality of the site or sites required and the proposed cost of the buildings to be erected thereon."

            We note also the apparently conflicting terms of § 1, chapter 20, Laws of 1923 (Rem. Rev. Stat. 4947) which in part provides that:

            "The county commissioners must ascertain and levy annually in addition to the school district tax, the tax necessary to pay the interest upon such bonds as it becomes due, and at the expiration of one‑half of the time for which said bonds are to run, and annually thereafter, until full payment of said bonds is made, they shall levy, in addition to the tax required to pay the interest, such amount for sinking fund to meet the payments of said bonds at maturity, to be determined by dividing the amount of bonds outstanding by the remaining number of years to run, and the fund arising from such levy shall be kept as the bond redemption fund of said district,  [[Orig. Op. Page 5]] and each of said tax levies shall be a lien upon the property of said district, and must be collected in the same manner as the taxes for other school purposes:  * * *"

            This section applies to school districts generally, however, and although its predecessor was in effect at the time that the Byrne case, supra, was decided (see section 121, chapter 118, Laws of 1897, page 403, under sub‑chapter 7 ‑ "Bonds") it was not even mentioned by the court in that decision, evidently upon the theory that section 97 of the 1897 act being a special provision relating to districts having over 10,000 inhabitants, controlled over section 121, supra, which purported to deal generally withall school district.

            As stated above, wherein the history of the act is traced, the present section, Rem. Rev. Stat. 4809, is an outgrowth of section 97 Laws of 1897, page 393.  This section, according to the codifier was partially repealed by section 24, chapter 49, Laws of 1915, being an act providing for a budget system for counties, cities and other public corporations which in turn was impliedly repealed by chapter 131, Laws of 1923, (Rem. Rev. Stat. 4867-1 et. seq.) entitled "an act providing for a budget system for making and controlling estimates, tax levies and expenditures in school districts of the first class * * *."  Section 6 of the 1923 act (Rem. Rev. Stat. 4867-6) provides in part:

            "* * * The board of directors shall then [after public hearing] certify the final budget and the amount to be raised by taxation to the county commissioners for the levying of the district taxes in the manner now provided by law.  * * *"

            See also, Rem. Rev. Stat. 11236.

            We have not overlooked the provisions of chapter 20, Laws of 1923 (Rem. Rev. Stat. 5583-1 et. seq.) which repeals all conflicting acts and provides for the issuance of serial bonds by school districts and the amount of such issues.  Section 2 of that act (Rem. Rev. Stat. 5583-2) provides that:

            "The officials now or hereafter charged by law with duty of levying taxes for the payment of said bonds and interest shall, in the manner provided by law, make an annual levy sufficient to meet the annual or semi-annual payments of principal and interest on said bonds maturing as herein provided."

            It would seem that the most part of the confusion attendant upon the problem here presented, stems from the indiscriminate use of the word "levy."  Upon considering the various  [[Orig. Op. Page 6]] and different meanings which have been ascribed to the word "levy," either in the abstract or as it may have been used in some other setting, it is at once apparent that no assistance can be derived from such authorities.  An examination of a large number of cases construing the word discloses no case which is particularly helpful upon the facts under consideration.  In 36 C. J., page 1032, the author states:

            "Levy * * *

            "(3) C. As applied to taxation.

            "The term 'levy,' as applied to taxation, is given a variety of meanings, according to how it is used, and sometime it is used with no limited or technical meaning.  It may be used as referring to either the legislative or administrative function of taxation.  It is used indiscriminately to denote the legislative function of charging the collective body of tax-payers with the sums to be raised and the ministerial function of extending the taxes against the individual taxpayers.  It may include the doing of whatever things are required to be done in order to authorize the collector to procure the taxes."

            While the question is indeed a close one, and not free from doubt, it is our conclusion from a study of various statutes, that the word "levy" as used in Rem. Rev. Stat. 5583-2 is used in the administrative or ministerial sense in so far as it refers to the board of county commissioners and that the legislative function of ascertaining theamount of tax to be collected reposes in the school board.  We are therefore of the opinion that in so far as first class school districts are concerned the board of county commissioners is without authority to question the need of the amounts asked.

            In so ruling, we do not wish to be understood as expressing herein any opinion as to the propriety of the action taken by the school directors relative to the retirement of bonds.  That subject has been considered by two recent opinions of this office, addressed to the State Division of Municipal Corporations and dated respectively May 11, 1949 [[Opinion No. 49-51-36]], and February 28, 1950, to which we adhere.

Very truly yours,

Attorney General

Assistant Attorney General