DISTRICTS ‑- FIRE PROTECTION ‑- MAXIMUM TAX LEVIES FOR GENERAL PURPOSES

DISTRICTS ‑- FIRE PROTECTION ‑- MAXIMUM TAX LEVIES FOR GENERAL PURPOSES.

The maximum levy for fire protection districts authorized by RCW 52.16.130, exclusive of any levy for retirement of general obligation bonds, is two mills, and the maximum levy authorized by RCW 52.16.130 and 52.16.140 combined is four mills, exclusive of any levy for retirement of general obligation bonds.

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                                                                February 17, 1959

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                               Cite as:  AGO 59-60 No. 12

Attention:  !ttMr. A. E. Hankins
            Chief Examiner                                                                                                  Clarifying AGO 51-53-396

Dear Sir:

            By letter dated February 9, 1959, you have requested an opinion clarifying our previous opinion to the prosecuting attorney of Douglas county September 8, 1952 (AGO 51-53-396) [[Opinion No. 51-53-396]], in the following particulars:

            (1) What is the maximum tax levy authorized for fire protection districts pursuant to RCW 52.16.130?

            (2) What is the maximum legal levy authorized by RCW 52.16.140?

                                                                     ANALYSIS

            The opinion referred to above points out that fire protection districts are authorized to make three distinct classes of levies, as follows:

            ". . . The first‑-which has no statutory limit‑-is imposed to retire general obligation bonds.  The second class of levy cannot exceed four mills and is imposed to defray general expenses and retire  [[Orig. Op. Page 2]] outstanding coupon warrants.  This class is subject to proration should the combined levy of taxes in the particular area exceed the forty mill limit.  The third class of levy cannot exceed two mills and can be made only when the combined levies of all other taxing units, including the levy made pursuant to RCW 52.16.130, total less than forty mills.  Should the combined levies of all the taxing units total forty mills, this third class of levy may nevertheless be made if the total of the combined levies can be reduced below forty mills by securing from other taxing units a release of their levies. . . ."

            There is no present question regarding the first class of levies set forth above, since RCW 52.16.080 through 52.16.120 provide that the voters of the district at a general or special election may authorize levies in excess of the forty mill limitation to retire general obligation bonds issued for capital purposes or issued to refund outstanding coupon warrants which were originally used for capital purposes.

            The second class of levy is authorized by RCW 52.16.130.  While the language of the opinion cited above would indicate that up to two mills may be levied for general purposes and the balance of a four mill permissible limit may be levied for the retirement of coupon warrants, that opinion must be read in the light of the statute and the circumstances under which the opinion was written.

            In 1947, and until 1951, the law provided that the aggregate annual tax levy for all fire protection district purposes exclusive of levies for local improvement districts could not exceed four mills.  See § 11, chapter 254, Laws of 1947, and RRS § 5654-139 (1947 Supp.).  At that time a district was authorized, as now, to issue coupon warrants.  See § 10, chapter 254, Laws of 1947.  However, § 2, chapter 107, Laws of 1951, discontinued tax levies by fire protection districts except for the purpose of retiring indebtedness outstanding on April 1, 1951, and provided a special assessment procedure in lieu of tax levies.  Our present statutes, RCW 52.16.130 and 52.16.140, were enacted later in 1951, being §§ 8 and 9, chapter 24, 1951 Second Ex. Sess.

            RCW 52.16.130 permits a total general levy for all purposes, in addition to levies for the retirement of general obligation bonds and levies necessary to retire "any coupon warrantsheretofore issued and outstanding" of not to exceed two mills.  (Emphasis supplied.)  The same statute places a limit upon the total general levy for all purposes, except retirement of general obligation bonds, at four mills.  Thus, under this  [[Orig. Op. Page 3]] statute, the apparent intention of the legislature was to permit, in addition to levies to retire general obligation bonds, a levy of no more than two mills except that a total of four mills might be levied where necessary to retire coupon warrants outstanding at the time the act was passed.

            In view of the six-year limit on such warrants, (cf. § 10, chapter 254, Laws of 1947,supra,) there is no longer any basis under the statute for making such excess levy for retiring coupon warrants.  In answer to your first question the, RCW 52.16.130 now permits a maximum total levy of two mills for all purposes, except that of retiring general obligation bonds.

            Regarding your second question, in our opinion, RCW 52.16.140 permits, in addition to the two mill levy permitted by RCW 52.16.130, an additional maximum two mill levy under either of the following alternatives:

            (1) To the extent that taxing districts have not made the levies available to them within the forty mill limits or have made smaller levies than available to them within such limit; or

            (2) Where other taxing districts have utilized their available levies to such an extent that the additional levy by the fire protection district, or part of it, would cause the forty mill limit to be exceeded; then to the extent that such other taxing district or districts release millage to the fire protection district.

            This is substantially what we said in our September 8, 1952, opinion [[Opinion No. 51-53-396 to Prosecuting Attorney, Douglas County]], and we adhere to it at this time.  We are not, in this opinion, considering what levy may be made under RCW 84.52.052.

            Accordingly, our conclusions may be summarized as follows:

            (1) RCW 52.16.130 provides for a maximum total levy of two mills only, with the exception of levies for retirement of general obligation bonds; and

            (2) RCW 52.16.140 authorizes an additional two mill levy to the extent that other taxing districts have not used up the millage available to them within the forty mill limitation, or where other taxing districts release millage to the fire protection district.

            Accordingly, the combined maximum levy permitted under both statutes, exclusive of levies for retirement of general obligation bonds, is four mills at the present time.

             [[Orig. Op. Page 4]]

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General