DISTRICTS - SCHOOLS - ELECTIONS - TAXATION - PROCEDURE FOR CALLING SPECIAL SCHOOL DISTRICT EXCESS LEVY ELECTION

DISTRICTS - SCHOOLS - ELECTIONS - TAXATION - PROCEDURE FOR CALLING SPECIAL SCHOOL DISTRICT EXCESS LEVY ELECTION.

Where the board of directors of a school district, by appropriate resolution, calls a special election for submission to the voters of a proposition to levy ad valorem property taxes in excess of the constitutional forty mill limit, and presents this resolution to the county auditor at least forty-five days prior to the election date specified therein, it is not necessary for the auditor to find the existence of an emergency in order to hold the election on the date fixed by the school board.

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

                                                              September 12, 1968

Honorable Lincoln E. Shropshire
Prosecuting Attorney
Yakima County Court House
Yakima, Washington 98901

                                                                                                                 Cite as:  AGO 1968 No. 30

Dear Sir:

            This is written in response to your recent request for our opinion as to the procedure for calling a special school district election for submission of a proposition to levy ad valorem property taxes in excess of the constitutional forty mill limit.  Based upon our analysis of the applicable constitutional and statutory provisions, we paraphrase your question as follows:

            Where the board of directors of a school district, by appropriate resolution, calls a special election for submission to the voters of a proposition to levy ad valorem property taxes in excess of the constitutional forty mill limit, and presents this resolution to the county auditor at least forty-five days prior to the election date specified therein, is it necessary for the auditor to find the existence of an emergency in order to hold the election on the date fixed by the school board?

            We answer this question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            By way of factual background, we understand that one of the school districts in your county plans to call a special excess levy election in conjunction with the forthcoming state general election on November 5, 1968.  The proposition will ask for authority from the voters to levy taxes in excess of the constitutional forty mill limit in 1969, for collection in 1970.1/

             However, as you have pointed out, there exists a possibility of intervening action by the 1969 state legislature which could alter the existing state equalization formula for school districts so as to cause the financial needs of this district to change between the proposed election and levy (or collection) dates.  With this in mind you have next called our attention to RCW 29.13.020, relating to municipal elections, to the extent that this statute contains the following provision with respect to special (rather than general) elections:

            "The county auditor, as ex officio supervisor of elections, upon request in the form of a resolution of the governing body of a city, town or district, presented to him at least forty-five days prior to the proposed election date, may,if he deems an emergency to exist, call a special election at any time in such city, town, or district and for the purpose of such special election he may combine, unite or divide precincts.  Such special election shall be conducted and notice thereof given in the manner provided by law."  (Emphasis supplied.)2/

             Apparently, your county auditor has questioned whether he may properly "deem an emergency to exist" with respect to the proposed school district excess levy election in view of the possibility of intervening legislative action before the tax levy to be voted upon will be either levied or collected.  However, as we view the matter, the existence or nonexistence of an emergency is of no legal consequence when the question being considered by a county auditor is simply whether to hold a special excess levy election on the date specified in a school or other taxing district resolution calling for such an election.

             [[Orig. Op. Page 3]]

            In order to reach the basis for this conclusion, it is necessary to note, in some detail, certain of the provisions of our state constitution and statutes which relate to the forty mill limit.  Our starting point is, of course, Article VII, § 2 (Amendment 17) of the state constitution, which provides that the aggregate of all tax levies upon real or personal property by the state and taxing districts (exclusive of port and public utility districts) is limited to forty mills.3/   However, this constitutional provision, which was adopted by the people in 1944, permits this limitation to be exceeded if an appropriate proposition (either for a general excess levy for a given year, or for a special long-term excess levy to fund general obligation bonds) is submitted to the voters of a taxing district and is approved by

            ". . . majority of at least three fifths of the electors thereof voting on the proposition . . ."

            at a regularor special election of the taxing district

            ". . . at which election the total number of persons voting on the proposition shall constitute not less than forty per centum of the total number of votes cast in such taxing district at the last preceding general election: . . ."

            In the case of a general excess tax levy such as we are here considering, the constitution further provides that a proposition to levy such additional tax is to be,

            ". . . submitted not more than twelve months prior to the date on which the proposed levy is to be made and not oftener than twice in such twelve month period, . . ."

            These constitutional requirements, together with certain procedural requirements for an excess levy election, are also  [[Orig. Op. Page 4]] spelled out in statutory law.  RCW 84.52.052 provides as follows (omitting all references to other than school districts):

            ". . . Any . . . school district, . . . may levy taxes at a rate in excess of the rate specified in RCW 84.52.050 through 84.52.056, when authorized so to do by the electors of such . . . school district, . . . by a three fifths majority of those voting on the proposition at a special election, to be held in the year in which the levy is made, and not oftener than twice in such year, in the manner provided by law for holding general elections,at such time as may be fixed by the body authorized to call the same, which special election may be called by the . . .board of school directors, . . .by giving notice thereof by publication in the manner provided by law for giving notices of general elections, at which special election the proposition authorizing such excess levy shall be submitted in such form as to enable the voters favoring the proposition to vote 'Yes,' and those opposed thereto to vote 'No': . . .Provided further, That the total number of persons voting on an excess levy for school district purposes . . . at any such special election of such districts . . . must constitute not less than forty percent of the voters in such taxing districts . . . who voted at the last preceding general election in such district."  (Emphasis supplied.)

            Thus, by way of summary, both the constitution and the applicable statute allow the board of directors of a school district (or other taxing district) to submit an excess levy proposition to its voters:

            (1) At a special election;

            (2) Held in the year in which the levy is to be made;4/ provided that;

            (3) As to a particular proposition, it is not submitted oftener than twice in one year.

             [[Orig. Op. Page 5]]

            These are the only conditions specified in either the constitution or in RCW 84.52.052 which must be met by a school board in order to place an excess levy proposition before the voters of the district.  And, according to this statute, the election is to be held ". . . at such time as may be fixed by . . ." the school board -without any stated necessity for any sort of determination of the existence of an emergency by the auditor of the county in which the district is located.  Therefore, if such a determination is to be regarded as necessary, this conclusion would have to rest on the proposition that the provision in RCW 29.13.020,supra, to which you have called our attention, constitutes an implied amendment to RCW 84.52.052.

            In construing a statute, the fundamental object of the court is to ascertain and give effect to the intent of the legislature.  See,Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965); In re Kurtzman's Estate, 65 Wn.2d 260, 396 P.2d 786 (1964).  Thus, the question to be asked is whether the legislature, by its enactment of § 3, chapter 123, Laws of 1965 (the most recent amendment to RCW 29.13.020), intended to add to the previousexpress conditions for holding a school district (or other taxing district) special election an implied condition that the district satisfy its county auditor that an emergency exists.  In other words, did the legislature intend this 1965 enactment to mean that the county auditor must determine as a condition precedent to any special school district (or other taxing district)excess levy election, that an emergency exists?

            To answer this question in the affirmative would (as we have said) require a determination that RCW 84.52.052 a special statute governing excess levy elections has been amended by implication by RCW 29.13.020 a general statute relating to municipal elections.  In considering whether this is the case, we must look to the rules of statutory construction which apply to this issue.

            Of course, it is well recognized that a statute may be repealed or amended either expressly or by implication.  State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951).  However, repeals by implication are not favored.  Tardiff v. Shoreline Sch. Dist., 68 Wn.2d 164, 411 P.2d 889 (1966); Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965);Fransen v. Board of Nat. Resources, 66 Wn.2d 672, 404 P.2d 432 (1965).  InHerrett Truck'g Co. v. Wn. Etc. Com., 58 Wn.2d 542, 543, 544, 364 P.2d 505 (1961), the court summarized the rules of statutory construction applicable to deciding such a question, as follows:

            "A statute may be repealed by implication. State v. Becker, 39 Wn.2d 94, 234 P.2d  [[Orig. Op. Page 6]] 897.  Ordinarily, a general statute does not repeal an earlier special statute by implication.  State ex rel. Sherman v. Benson, 111 Wash. 124, 189 Pac. 1000.  However, there is no rule which prohibits the repeal by implication of a special statute by a general one.  The question is always one of legislative intent.  The earlier special statute must yield to the later general statute where there is a manifest legislative intent that the general statute shall have universal application.  State ex rel. Department of Public Service v. Northern Pac. R. Co., 200 Wash. 663, 94 P.2d 502;State v. Becker, supra; Abel v. Diking & Drainage Imp. Dist. No. 4, 19 Wn.2d 356, 142 P.2d 1017.  The rule was well expressed inAbel v. Diking & Drainage Imp. Dist. No. 4, supra, in which we said:

            "'Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. . . .'"

            From a reading of RCW 29.13.020 it is clear that in respect to special electionsgenerally, the governing body of a municipality must submit a resolution to the auditor as the ex officio supervisor of elections at least forty-five days prior to the proposed election date.5/   Upon receipt of such a resolution, the auditor "if he deems an emergency to exist" may call an election at any time.  If and when held, the election is to be conducted and notice thereof given in the manner provided by law.

            The purpose of this statute would appear to be to give the auditor, as supervisor of elections, at least forty-five days to prepare for the conduct of a special election.  If the auditor finds an emergency to exist he may hold the election  [[Orig. Op. Page 7]] at any time within which he is able to perform the duties required of him in conducting an election.

            However, when RCW 29.13.020 and RCW 84.52.052 are laid side by side, it is apparent that the former dealing with elections generally does not cover the entire subject matter of the latter.  Certainly, RCW 29.13.020 must have some application to special school district excess levy elections, for we note that by § 8, chapter 123, Laws of 1965 (the act by § 3 of which RCW 29.13.020 was last amended) the legislature expressly provided that:

            "There isadded to chapter 28.58 RCW [the school code] a new section to read as follows:

            "All school district elections, regular or special, shall be conducted according to the election laws of the state of Washington as contained in Title 29 RCW,and in the event of a conflict as to the application of the laws of this title or Title 29 RCW, the latter shall prevail."  (RCW 28.58.521.) (Emphasis supplied.)

            If RCW 84.52.052 were a part of "this title" (i.e., Title 28 RCW), the concluding phrase of this statute would (to the extent of irreconcilable conflict) provide a basis for giving precedence to the pertinent portion of RCW 29.13.020 but, of course, it is not.  Thus, the mandate of this phrase has no bearing on the relationship to be drawn between these two statutes.  Accordingly, giving only such effect to RCW 29.13.020 as is necessitated by the initially stated requirement that "All school district elections . . . shall be conducted according to . . . Title 29 RCW, . . ." we believe the proper effect to be given to RCW 29.13.020 in relation to RCW 84.52.052 is as follows:

            In the case of an excess levy election, the board of directors is required to proceed in accordance with the election law (i.e., RCW 29.13.020) to the extent that it must submit a resolution to the auditor, at least forty-five days prior to the proposed date of the election.  Once this is done, the election is to be held on the date proposed unless the auditor deems an emergency to exist, in which case he may call the  [[Orig. Op. Page 8]] election at an earlier date.6/

             By this conclusion we reject any notion that the legislature by implication rather than express provision intended to require a county auditor to find the existence of an emergency before he proceeds to hold a special school district (or other taxing district) excess levy election at the time specified by the school directors in their resolution under RCW 84.52.052.  In addition to the foregoing reasons, we simply cannot believe that in a matter so vital to the various taxing districts of the state, the legislature intended to place the county auditors, as the supervisors of elections, in a position of reviewing, in effect, the fiscal needs of the taxing districts.  If the authority of the board of directors of a school district or other taxing district to submit an excess levy proposition to the voters of the district is to be subject to additional requirements not now set forth in RCW 84.52.052, we believe the statute should be expressly amended or the intent of the legislature should be otherwise clearly expressed.

            While our negative answer to your question (as paraphrased) is based upon the foregoing analysis and determination of the proper relationship between RCW 84.52.052,supra, and RCW 29.13.020, supra, we believe it appropriate to comment that the practical result would be essentially the same even if we were to regard the second of these two statutes as impliedly amending the first.  This is because, even if RCW 29.13.020 were construed to require a county auditor to find that an emergency exists before callingany special school district excess levy  [[Orig. Op. Page 9]] election, the mere fact that the legislature will convene in 1969, and may change the state equalization formula in some respect would not by itself, necessarily negate the existence of a requisite emergency.7/

             Clearly, to the extent that RCW 29.13.020 vests the county auditor with discretion as to when to hold a proposed special election, the auditor must exercise that discretion by reasonable action based upon all of the facts and circumstances of the particular case.  InMerritt School Dist. v. Kimm, 22 Wn.2d 887, 891, 157 P.2d 989 (1945), our supreme court said:

            "Discretion implies knowledge and prudence and that discernment which enables a person to judge critically of what is correct and proper.  It is judgment directed by circumspection.  The discretion given by law to certain individuals, such as appellant in this case, does not mean that they have a power of free decision or that they may pursue an undirected course.  The discretion is one regulated by well-known and established principles of law and equity.  It must be legal and regular, exercised in the spirit of reason and not ruled or governed by humor."