CITIES ‑- FIREMEN'S PENSION FUND ‑- 'ADDITIONAL' ONE MILL LEVY ‑- EXCEEDING CITY FIFTEEN MILL LEVY LIMIT

AGO 1951 No. 146 - Oct 2 1951

Attorney General Smith Troy

CITIES ‑- FIREMEN'S PENSION FUND ‑- "ADDITIONAL" ONE MILL LEVY ‑- EXCEEDING CITY FIFTEEN MILL LEVY LIMIT

When the amount of the mandatory one mill levy prescribed by chapter 72, Laws of 1951 (RCW 41.16.060), together with the other estimated income, is insufficient to meet the estimated requirements of a city's firemen's pension fund, the city is authorized to levy an additional tax not to exceed one mill, to meet such estimated requirements. Such additional one mill may exceed the city fifteen mill levy limit, thereby making a total maximum city levy of sixteen mills for all purposes.

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October 2, 1951

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington Cite as: AGO 51-53 No. 146

Dear Sir:

Your letter of September 10, 1951, refers to the provisions of chapter 72, Laws of 1951 (RCW 41.16.060), which was approved by the Governor on March 13, 1951, and which authorizes a city to levy a tax of one mill in addition to the city fifteen mill levy limit to meet the requirements of the city's firemen's pension fund. You also refer to section 1, chapter 255, Laws of 1951 (RCW 84.52.050), which limits the tax levy for cities to fifteen mills and which was signed by the Governor on March 19, 1951.

You ask our opinion on the following questions:

"Concerning these two laws: 1. Can a city levy sixteen mills if required for the pension fund?

2. Can a city levy over fifteen mills if not required for the pension fund?"

Our conclusion is:

[[Orig. Op. Page 2]]

ANALYSIS

Chapter 72, Laws of 1951 (RCW 41.16.060), provides in part as follows:

"It shall be the duty of the legislative authority of each municipality, each year as a part of its annual tax levy, to levy and place in the fund a tax of one mill on all the taxable property of such municipality: Provided, Thatshould the estimated amount to be raised by said levy of one mill, together with other estimated income be insufficient to meet the estimated requirements of the fundthen there shall be levied such additional tax, not to exceed one mill, as will meet said requirements: Provided further, That this additional levy may be in addition to the city fifteen mill levy limit now provided by law." (Emphasis supplied.)

The last paragraph of the act further provides that, if an actuary's examination of the firemen's pension fund discloses that the levy of the mandatory one mill, or any part of the additional one mill levy is not required, "* * * the levy of the mandatory or additional one mill may be omitted, or the whole or any part of such millage may be levied and used for any other municipal purpose."

Section 1, chapter 255, Laws of 1951, provides in part that "* * * the levy by or for any city or town shall not exceed fifteen mills." This provision was carried over from chapter 176, Laws of 1941 (§ 11238-1e Rem. Supp. 1941), chapter 253, Laws of 1945 (§ 11238-1e Rem. Supp. 1945), and chapter 11, Laws of 1950 Ex. Sess. Chapter 255, Laws of 1951, was in turn amended by chapter 23, Laws of 1951 Ex. Sess., which preserves and retains the city fifteen mill levy limit.

At the time of the enactment of chapter 72, Laws of 1951, the city fifteen mill levy limit "now provided by law" was the limitation contained in chapter 176, Laws of 1941 as amended by chapter 253, Laws of 1945, and chapter 11, Laws of 1950 Ex. Sess.

[[Orig. Op. Page 3]]

The first part of your inquiry presents the question as to the effect of the subsequent enactment of chapter 255, Laws of 1951, and chapter 23, Laws of 1951 Ex. Sess., amending the taxation limitation statute, by re‑enacting [[reenacting]]the same "city fifteen mill levy limit." Is the proviso of chapter 72, Laws of 1951, which permits the "additional" one mill levy for the city firemen's pension fund to exceed the city fifteen mill levy limit "now provided by law", rendered inoperative by the subsequent amendatory acts of chapter 255 and chapter 233 of the regular and extra sessions of 1951?

In each instance the purpose of the amendatory act had no relation or connection with the fifteen mill limitation on city tax levies. The provision covering such limitation was retained and set out in each of the amendatory acts in compliance with section 37, Article II of the Washington Constitution, which provides that an act revised or amended shall be set forth at full length. Although each amendatory act superseded and replaced the prior act which was amended, the city fifteen mill levy limit continued in force at all times as of the date of its original enactment. The rule has been stated as follows:

"* * * However, in so far as the two acts are the same, the new act is regarded as a mere continuance of the earlier one, and as speaking as of the time of the adoption of the original enactment, so that only the new provisions are to be considered as having been enacted at the time of the amendment. * * *" 50 Am.Jur. 482, § 468.

and in Sutherland, Statutory Construction (3rd ed.), Vol. 1, § 1933, p. 425, it is said:

"Provisions of the original act or section which are repeated in the body of the amendment, either in the same or equivalent words, are considered a continuation of the original law. * * *"

This rule was concurred in by our own Supreme Court in the case ofIn Re Yakima Amusement Company, 192 Wash. 174, 178, 73 P. (2d) 519, where it was said:

"An amendatory statute which sets out in full all that the statute, as amended, is intended to contain, becomes a substitute for the statute amended. This does not necessarily mean that the original [[Orig. Op. Page 4]] is abrogated for all purposes. So much of the original as is repeated in the later statute without substantial change, is not repealed and reenacted, but is continued in force without interruption from the time it was first enacted. 59 C.J. 925. * * *" (Emphasis supplied.)

and seeSpokane and Eastern T. C. v. Hart, 127 Wash. 541, 551, 221 Pac. 615.

We are, therefore, of the opinion and so advise that the "city fifteen mill levy limit" contained in chapter 255, Laws of 1951 as amended by chapter 23, Laws of 1951 Ex. Sess., continued to be and is the fifteen mill levy limit "now provided by law" within the meaning of the proviso of the previously enacted chapter 72, Laws of 1951; that when necessary to meet the estimated requirements of its firemen's pension fund, the additional one mill levy, or the portion thereof needed, which a city is permitted to levy for such purpose may be in addition to the city fifteen mill levy limit prescribed by chapter 255, Laws of 1951 as amended by chapter 23, Laws of 1951 Ex. Sess.

Your second question is answered by Opinion No. 51-53-58 rendered by this office under date of May 28, 1951, to the State Auditor, a copy of which is enclosed herewith. It is there pointed out that inasmuch as the levy of the "additional" one mill, which may be in addition to the city fifteen mill levy limit, would be levied only when necessary to meet the estimated requirements of the firemen's pension fund, the question of the use of the additional one mill for other than those purposes would not arise.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General