AUTHORITY OF BOARD OF TRUSTEES TO REVISE BUDGET TO PROVIDE FOR EXPENDITURE OF UNANTICIPATED INCOME

LIBRARIES ‑- COUNTY AND INTERCOUNTY RURAL ‑- AUTHORITY OF BOARD OF TRUSTEES TO REVISE BUDGET TO PROVIDE FOR EXPENDITURE OF UNANTICIPATED INCOME.

The board of trustees of a county or intercounty rural library district may file a revised budget with the county commissioners after the approval of the budget in October to provide for the expenditure of unanticipated income not affecting the tax levy.

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                                                               December 12, 1958

Honorable Maryan E. Reynolds
State Librarian
Temple of Justice
Olympia, Washington                                                                                           Cite as:  AGO 57-58 No. 231

Dear Miss Reynolds:

            This is in answer to your request for the opinion of this office on the following question:

            May the board of trustees of a county or inter-county [[intercounty]]rural library district file a revised budget with the county commissioners after the county budget date, the revised budget to provide for the expenditure of unanticipated income for unanticipated expenditures?  The revised budget would not reflect any change in the tax rate.

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Chapter 27.12 RCW contains the general statutes covering all public libraries, including rural library districts, intercounty rural library districts and regional library districts.  RCW 27.12.050 authorizes a rural county library district to make a tax levy as follows:

            "After the board of county commissioners has declared a rural county library district established, it shall  [[Orig. Op. Page 2]] appoint a board of library trustees and provide funds for the establishment and maintenance of library service for the district by making a tax levy on the property in the district of not more than two mills a year sufficient for the library service as shown to be required by the budget submitted to the board of county commissioners by the board of library trustees, and by making a tax levy in such further amount as shall be authorized pursuant to RCW 27.12.222 or RCW 84.52.052 or 84.52.056.  Such levies shall be a part of the general tax roll and shall be collected as a part of the general taxes against the property in the district."

            In addition, RCW 27.12.150 provides as follows:

            "Funds for the establishment and maintenance of the library service of the district shall be provided by the boards of county commissioners of the respective counties by means of an annual tax levy on the property in the district of not more than two mills a year.  The tax levy in the several counties shall be at a uniform rate and shall be based on a budget to be compiled by the board of trustees of the intercounty rural library district who shall determine the uniform tax rate necessary and certify their determination to the respective boards of county commissioners.

            "Excess levies authorized pursuant to RCW 27.12.222 and RCW 84.52.052 or 84.52.056 shall be at a uniform rate which uniform rate shall be determined by the board of trustees of the intercounty rural library district and certified to the respective boards of county commissioners."

            In an opinion issued by this office on September 20, 1948, to the state librarian [[1947-48 OAG 120b]], we ruled that the millage of the tax levy, within the two mill limitation, for rural county library districts and intercounty rural library districts was entirely within the discretion of the board of library trustees, and was not subject to revision by the board of county commissioners, who perform only a ministerial duty in making the actual levy of the tax.

            However, it is clear that a library district is bound by the time limits prescribed by the general statutes governing the preparation of county budgets  [[Orig. Op. Page 3]] found in chapter 36.40 RCW, in so far as its annual tax levy is concerned.  Accordingly, no change can be made in the amount of the annual tax levy by the board of trustees of the library district after the final budget hearing held by the county commissioners on the first Monday in October (RCW 36.40.080).  In an opinion issued by this office on January 25, 1957, to the prosecuting attorney of Whitman County [[AGO 57-58 No. 6]], in answer to a question concerning the form and procedure to be used by the board of trustees in preparing its budget, the opinion quoted RCW 27.12.210 (4) as follows:

            "'Submit annually to the legislative body a budget containing estimates in detail of the amount of money necessary for the library for the ensuing year; except that in a rural county library district the board of library trustees shall prepare its budget, certify the same and deliver it to the board of county commissioners in ample time for it to make the tax levies for the purpose of the district;'"

            The opinion then suggested that, for the purpose of uniformity, the form of budget used by the library district should conform with that required by county offices under RCW 36.40.040.  Such a suggestion, however, does not impose a duty upon the district to comply with the requirement in the absence of a specific statute imposing the duty.  In addition, that opinion holds that the board of trustees has no authority to make emergency expenditures in the absence of specific statutory authority.  Clearly, the board has not been granted the specific statutory authority to make emergency appropriations granted to the county commissioners under RCW 36.40.140 with a hearing or under RCW 36.40.180 without a hearing on nondebatable emergencies.

            The general statutory provision relating to the expenditure of funds by the library district is found in RCW 27.12.250, which provides as follows:

            "All moneys for library purposes, regardless of origin, shall be kept in a separate fund and not be used for any other purpose.  The library board of trustees have the exclusive control of the expenditure of library funds and shall issue vouchers thereon.  The board shall not make expenditures or incur indebtedness in any year in excess of the amount of money annually appropriated by the legislative body and available for library purposes."

            However, we note the section, supra, as compiled by the code reviser consists of part of § 10, chapter 119, Laws of 1935, as last amended by part of § 9,  [[Orig. Op. Page 4]] chapter 65, Laws of 1941.  An examination of those two provisions of the session laws reveals that the reviser has left out a portion of the later enactment which is controlling in the present instance.  The pertinent portion of § 10, chapter 119, Laws of 1935, reads as follows:

            ". . . All funds for the library, whether derived from taxation or otherwise, shall be in the custody of the treasurer of the governmental unit, and shall constitute a separate fund called the 'Free Public Library Fund,' and shall not be used for any but library purposes.  The board of trustees shall have the exclusive control of expenditures from the fund subject to any examination of accounts required by the state and money shall be paid from the fund only upon vouchers of the board of trustees, without further audit.  The board shall not make expenditures or incur indebtedness in any year in excess of the amount of money appropriated and available for library purposes."

            The pertinent portion of § 9, chapter 65, Laws of 1941, reads as follows:

            ". . . All funds for the library, whether derived from taxation or otherwise, shall be in the custody of the treasurer of the governmental unit, and shall be designated by him in some manner for identification, and shall not be used for any but library purposes.  The board of trustees shall have the exclusive control of expenditures for library purposes subject to any examination of accounts required by the state and money shall be paid for library purposes only upon vouchers of the board of trustees, without further audit.  The board shall not make expenditures or incur indebtedness in any year in excess of the amount of money appropriated and/or available for library purposes."  (Emphasis supplied.)

            On November 13, 1946, this office issued an opinion to the state librarian which involved the power of rural county library districts to pass emergency ordinances to utilize cash funds received over and above the amount budgeted for the year's operation.  At that time we ruled that the words "and/or" in the last sentence of the section above quoted did not authorize the expenditure of any moneys "available" but not "appropriated" and "available."  However, that opinion did not cite or apparently consider the case of Batchelor v. Madison Park Corp., (1946), 25 Wn. (2d) 907, 924, wherein the court discussed  [[Orig. Op. Page 5]] the use of and/or as follows:

            "It is contended that the use of the expression 'and/or' in the title of chapter 157, Laws of 1939, in § 1 of that act, and in the deed of the state to the city, renders the act itself and the deed issued in pursuance thereof wholly void for uncertainty.  The use of that method of expression has been criticized in many legal opinions.  However, Webster's New International Dictionary (2d ed.), published in 1945, defines the terms as follows: 'and/or.  Eitherand or or.  "Butterand/or eggs" means "butter and eggs or butter or eggs."'

            "See, also, Funk and Wagnall's New Standard Dictionary of the English language (1942); 45 Yale L.J. 918; 118 A.L.R. 1363 and 154 A.L.R. 866.

            "In our opinion, there is no uncertainty as to the meaning of the act or the grant in the deed.  It seems perfectly clear that the lots were deeded for municipal park and playground purposes, or for either of those purposes, and that the state cannot forfeit the grant so long as the city continues 'to hold, use and maintain said lands' for either a playground or a park."

            Thus, the court's interpretation of "and/or" applied to the present instance authorizes the library to use funds which have been appropriated and are available, or funds which have been appropriated, or funds which are available.  In the situation presented here the funds were unanticipated and thus not included in the budget submitted to the county commissioners and approved in October at the time the levy was made.  However, the funds will be "available" in 1959, and it is our opinion that the library may legally use such funds during the course of the year even though such funds have not been included in the budget approved in October.  It is clear from the foregoing analysis of the pertinent statutes and opinions of this office that the actual appropriation of funds for the use of the library is done by the board of trustees and not by the board of county commissioners.  Accordingly, any action taken by the trustees to spend the available unappropriated funds is legally authorized so long as it conforms to the procedure established under RCW 43.09.170, supra, by the division of municipal audits.

            In the past, the division of municipal corporations has required that as a matter of proper budgeting practice and for the purpose of keeping proper  [[Orig. Op. Page 6]] records, such funds should be appropriated by the method of a budget revision.  In addition, the revised budget should show that the funds involved do not affect the annual county levy made in October.  Such a revised budget should, of course, be submitted to the county commissioners so that they may be advised concerning the financial operation of the library.

            Our previous opinion of November 13, 1946, is hereby overruled.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General