COUNTY COMMISSIONERS ‑- AUTHORITY TO WAIVE COLLECTION OF THE TEN MILL ROAD LEVY -- COUNTY ROAD LEVY ‑- AUTHORITY OF COUNTY COMMISSIONERS TO CONTRACT FOR MAINTENANCE OF ROADS

COUNTY COMMISSIONERS ‑- AUTHORITY TO WAIVE COLLECTION OF THE TEN MILL ROAD LEVY -- COUNTY ROAD LEVY ‑- AUTHORITY OF COUNTY COMMISSIONERS TO CONTRACT FOR MAINTENANCE OF ROADS.

County commissioners cannot waive their right to collect the ten mill county road levy nor can they delegate their powers and duties with regard to location, construction, and maintenance of roads to any other agency.

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                                                                    July 25, 1957

Honorable Maloy Sensney
Prosecuting Attorney
Benton County
Prosser, Washington                                                                                                              Cite as:  AGO 57-58 No. 103

Attention:  !ttHerbert H. Davis

            Deputy Prosecutor

Dear Sir:

            We have received and considered your request for an opinion upon the following matters:

            1.         Can the commissioners of the County of Benton legally waive their right to collect the ten-mill county road levy from the time the property in Richland is placed on the tax rolls as private property until the people of Richland incorporate, in view of the fact that the A.E.C. will charge all owners of private property within this area an equivalent of 15 mills to cover municipal services including the maintenance and construction of roads?

             [[Orig. Op. Page 2]]

            2.         If the county commissioners acting for the county cannot legally waive the right to collect the ten-mill tax levy, can the commissioners then contract with the A.E.C. to maintain these streets and pay to the A.E.C. the ten-mill tax levy for the properties within the defined limits of the proposed city of Richland?

            3.         Assuming the answer to the second question to be in the affirmative, would it be necessary for the county to place all these streets on the county road system in order to make payment to the A.E.C.?

            It is our opinion that questions 1 and 2 must be answered in the negative, thereby eliminating the need to answer question 3.

                                                                     ANALYSIS

            Question 1:

            We conclude from the facts stated in your letter that the process of transfer of ownership from the federal government to private individuals will extend beyond one year.  Thus the first property sold will be extended upon the county tax roll the next subsequent year and until such time as the city is in a position to incorporate.  It is conceded that inequality in the payment of real property taxes will exist until such time as the city does become an entity.  Nevertheless, we find no statutory authority allowing the county commissioners to balance equities in the levy and collection of taxes.

            RCW 36.82.040 provides in part as follows:

            ". . . the board shall annually at the time of making the levy for general purposes make auniform tax levy throughout the county, or any road district thereof, of not to exceed ten mills on the dollar on all taxable property in the county, . . ." (Emphasis supplied.)

            RCW 84.40.010 (§ 2, chapter 196, Laws of 1955) defines taxable property as follows:

             [[Orig. Op. Page 3]]

            "All property now existing, or that is hereafter created or brought into this state, shall be subject to assessment and taxation for state, county, and other taxing district purposes, upon equalized valuations thereof, fixed with reference thereto on the first day of January at twelve o'clock meridian in each year, excepting such as is exempted from taxation by law."

            The power of the county commissioners to waive their right to collect the ten-mill county road levy is further limited by Article 7, § 1 of the State Constitution, as amended by the Fourteenth Amendment, which provides in part as follows:

            ". . . All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax . . ." (Emphasis supplied.)

            In addition to the foregoing, there is a specific provision of the code prohibiting county commissioners from releasing or commuting taxes.

            RCW 84.48.030 provides:

            "Boards of county commissioners, as such, shall at no time have any authority to change the valuation of the property of any person or to release or commute in whole or in part the taxes due on the property of any person."

            Therefore, question 1 must be answered in the negative.

            Question 2:

            This question involves the authority of the county commissioners to contract for the maintenance of roads within a portion of a road district in return for a consideration of the full ten-mill levy upon property within defined limits.

            The duties and powers of the board of county commissioners with regard to county roads are specified in RCW 36.32.120 (2) and RCW 36.82.040, which read in pertinent part as follows:

            "The several boards of county commissioners shall:

            "(2) Lay out, discontinue, or alter county roads and  [[Orig. Op. Page 4]] highways within their respective counties, and do all other necessary acts relating thereto according to law, except within cities and towns which have jurisdiction over the roads within their limits;" (RCW 36.32.120 (2))

            "For the purpose of raising revenue for establishing, laying out, constructing, altering, repairing, improving, and maintaining county roads, bridges, and wharves necessary for vehicle ferriage and for other proper county road purposes, the board shall annually at the time of making the levy for general purposes make a uniform tax levy throughout the county, or any road district thereof, of not to exceed ten mills on the dollar on all taxable property in the county, or road district thereof, unless other law of the state requires a lower maximum levy, in which event such lower maximum levy shall control.  All funds accruing from such levy shall be credited to and deposited in the county road fund."  (Emphasis supplied.)  (RCW 36.82.040)

            It is readily apparent from the above sections of the code that the duty of determining questions of policy with reference to the location, construction, repair and maintenance of roads and streets is imposed upon the board of county commissioners.  The arrangement which you suggest in your letter amounts to a delegation by the board of county commissioners of these important functions.  The Atomic Energy Commission, rather than the board of county commissioners, would, for example, determine whether a particular street or road should be repaired and how much of the funds available should be expended for this purpose.

            The general rule on delegation of powers by the board of county commissioners is stated as follows:

            "The right of a county board to delegate its authority depends on the nature of the duty to be performed.  Powers involving the exercise of judgment and discretion are in the nature of public trusts and cannot be delegated to a committee or agent . . ." 20 C.J.S. 862

            The powers and duties which the county commissioners propose to delegate to the Atomic Energy Commission involve the exercise of judgment and  [[Orig. Op. Page 5]] discretion.  Under the rule quoted above such powers and duties cannot be delegated.

            We conclude, therefore, that the board of county commissioners cannot delegate its powers and duties with regard to the location, construction, repair and maintenance of roads and streets to any other agency, nor can the board make a lump sum reimbursement to the agency for that purpose.

            We trust that the foregoing opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DOLALD E. WATSON
Assistant Attorney General