EXPIRATION OF 106% LIMITATION UPON REGULAR PROPERTY TAXES

TAXATION ‑‑ PROPERTY ‑‑ EXPIRATION OF 106% LIMITATION UPON REGULAR PROPERTY TAXES

The expiration date set forth in § 2, chapter 67, Laws of 1973, 1st Ex. Sess., is only applicable to the amendatory proviso contained in § 1 of that act and not to the entire 106% limitation upon regular property taxes provided for by RCW 84.55.010, et seq.

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January 28, 1976

HonorableMary Ellen McCaffree
Director
Department of Revenue General Administration Building
Olympia, Washington 98504                                                                                                                  Cite as:AGLO 1976 No. 6

Dear Mrs. McCaffree:

            By letter previously acknowledged you have requested our opinion regarding the effect to be given to the December 31, 1978, expiration clause contained in § 2, chapter 67, Laws of 1973, 1st Ex. Sess. Spe‑ cifically, you have asked whether this expiration date applies:

            (1) To all of chapter 84.55 RCW, codifying §§ 20‑24, chapter 288, Laws of 1971, 1st Ex. Sess;

            (2) To RCW 84.55.010 in its entirety; or

            (3) Merely to the amendatory language which was added to RCW 84.55.010 by § 1, chapter 67, Laws of 1973, 1st Ex. Sess.

            In our opinion, the expiration date set forth in § 2, chapter 67, Laws of 1973, 1st Ex. Sess., is only applicable to the amendment con‑ tained in § 1 of that 1973 act.

ANALYSIS

            As originally enacted by § 20, chapter 288, Laws of 1971, Ex. Sess., RCW 84.55.010 established the following limitation upon the allowable amount of regular property taxes which could be levied by taxing districts other than the state or school districts:

            "Except as provided in RCW 84.55.020 through 84.55.050, the levy in 1973 and years subsequent thereto for a taxing district other than the state or a school district in any year shall be set so that the regular property taxes payable in the following year shall not [Orig. Op. Page 2] exceed one hundred six percent of the amount of regular property taxes lawfully levied for such district in the highest of the three most recent years in which such taxes were levied for such district plus an additional dollar amount calculated by multiplying the  increase in assessed value in that district resulting from new construction and improvements to property by the regular prop‑ erty tax levy rate of that district for the preceding year."

            RCW 84.55.020 ‑ 84.55.050, in turn, codify §§ 21‑25 of this same 1971 act and deal, respectively, with the first levy of a taxing district following consolidation or annexation, increases in statutorily authorized rates of taxation, and the conduct of elections to authorize regular property taxes in excess of the 106% limitation.

            Then, in 1973, for reasons explained in some detail in AGLO 1975 No. 86 , copy enclosed, the legislature amended RCW 84.55.010 by adding to it the following proviso:

            ". . .Provided, That if a taxing district has not levied in the three most recent years and elects to restore a regular property tax levy subject to applicable statutory limitations then such first restored levy shall be set so that the regular property tax payable shall not exceed the amount which could have been lawfully levied in 1973, plus an additional dollar amount calculated by multiplying the increase in assessed value in the district since 1973 resulting from new construction and improvements to property by the property tax rate which is proposed to be restored, or the maximum amount which could be lawfully levied in the year such a restored levy is proposed."

            See, § 1, chapter 67, Laws of 1973, 1st Ex. Sess. In addition, however, this 1973 act contained a second section, the full text of which read as follows:

            "NEW SECTION. Sec. 2. The provisions of this act shall expire on December 31, 1978."

            Confusion, apparently, has developed regarding the meaning of § 2, chapter 67,supra, because of the fact that the [Orig. Op. Page 3] reference in that section is to "this act" rather than to "this 1973 amendatory act" as would have been the case if the drafting technique recommended by the Code Reviser's Office had been followed.  See, Revised Bill Drafting Guide, November 1, 1970, § 10(4). Section 2, however, was apparently not drafted or reviewed by the Code Reviser's Office because chapter 67,supra, originated in the House of Representatives as House Bill No. 736, while | 2, supra, was added by way of a Senate Committee Amendment on April 6, 1973. See, Senate Journal, 1973, pp. 1206‑8 which, unfortunately, contains no record of any debate explaining the amendment. Moreover, within the defined scope of his authority under RCW 1.08.015, the Code Reviser was unable to resolve the confusion in codifying the legislation. In the code, RCW 84.55.010 is first set forth in full, as amended by § 1, chapter 67,supra. Then, the following notation appears:

            "Expiration‑‑1973 1st ex.s. c 67: 'The provisions of this act shall expire on December 31, 1978.' [1973 1st ex.s. c 67 § 2.]"

            In addition, the Code Reviser's "black letter" heading to RCW 84.55.010 reads as follows:

            "Limitations prescribed‑‑Restoration of regular levy (expires December 31, 1978)."

            As we understand it, some have thus taken § 2, chapter 67, supra, to mean either that all of RCW 84.55.010 or even chapter 84.55 RCWin its entirety will expire on December 31, 1978 ‑ rather than merely the 1973 amendatory proviso above quoted. In our opinion, however, such a reading of the statute is incorrect.

            Under a well‑established principle of statutory construction, the phrase "this act" as used in § 2, chapter 67, must be interpreted in the light of the context in which it appears.  State ex rel. PUD, Etc. v. Wylie, 28 Wn.2d 113, 182 P.2d 706 (1947). As explained by the court in that case, at page 147:

            ". . . A phrase from an enactment cannot be separated from its context, divorced from the other sections of the act, and then be utilized to change the very purpose of the act itself. . . ."

            Thus read, we believe that "this act" in § 2 thereof means chapter 67, Laws of 1973, 1st Ex. Sess. ‑ and not either [Orig. Op. Page 4] chapter 84.55 RCW or RCW 84.55.010 in their entirety ‑ or, by the same token, the earlier provisions of § 20, chapter 288, Laws of 1971, 1st Ex. Sess., by which RCW 84.55.010 was originally enacted. Thus, assuming no intervening legislative action, all that will occur on December 31, 1978, is that the proviso to RCW 84.55.010 which was added by § 1, chapter 67, supra, will expire. Thereafter, RCW 84.55.010 will read as it did before 1973 ‑ without the proviso.

            To conclude that the expiration date in § 2 applies to all of RCW 84.55.010 rather than only the proviso would, among other things, produce an incongruity which cannot properly be attributed to our legislature under such cases asWilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968), and authorities cited therein. In addition to RCW 84.55.010, supra, we have noted that the original (1971) act in which it was contained also included four other sections which, together with § 20 (RCW 84.55.010), constituted an integrated statutory scheme for the imposition of a special limitation upon the allowable amount of regular property taxes to be levied by taxing districts other than the state or school districts.  See, §§ 21‑24, chapter 288, Laws of 1971, 1st Ex. Sess. Those four other sections of the act are now codified as RCW 84.55.020 ‑ 84.55.050 and, quite clearly, they would make no sense administratively or otherwise without RCW 84.55.010,supra.  Conversely, however, RCW 84.55.020 ‑ 84.55.050 remain fully workable if only the 1973 proviso to RCW 84.55.010 is eliminated.

            As for the suggestion that "this act" in § 2, chapter 67, supra, might be viewed as encompassing all of chapter 84.55 RCW (i.e., §§ 20‑24, chapter 288, Laws of 1971, 1st Ex. Sess., as amended, and RCW 84.55.010 ‑ 84.55.050), it is true, of course, that the incongruity which would exist if RCW 84.55.010 were to expire in toto, without the concurrent expiration of RCW 84.55.020 ‑ 84.55.050, would be eliminated under this approach. But by no stretch of the imagination can such a ruling be justified. There is no express manifestation in the 1973 act of any legislative intent to repeal, at any time, the entire 1971 integrated scheme for limiting regular property tax levies. On the contrary, the title of chapter 67, supra, expressly refers merely to "amending section 20, chapter 288, Laws of 1971, Ex. Sess. and RCW 84.55.010," and providing an expiration date and to no other broader purpose. And, of course, it is well established that the repeal of a statute by implication is not favored. See, e.g.,In re Estate of Lyons, 83 Wn.2d 105, 515 P.2d 1293 (1973).

            [Orig. Op. Page 5]

            In the present circumstance, if the 1973 legislature had intended to repeal §§ 20 through 24 of its earlier, 1971 enactment, in their entirety, it would have been a simple matter to have accomplished this with a straight‑forward express repealer containing a December 31, 1978, effective date.

            In addition, there is another factor to be noted in that any such reading of § 2, chapter 67,supra, would present a serious constitutional problem under Article II, § 19 of the state constitution which provides:

            "No bill shall embrace more than one subject, and that shall be expressed in the title."

            As stated inPower, Inc. v. Huntley, 39 Wn.2d 191, at 198, 235 P.2d 173 (1951):

            "This provision contains two prohibitions: (1) No bill shall embrace more than one subject (the purpose of which is to avoid hodgepodge and 'logrolling' legislation); and (2) no bill shall have a subject which is not expressed in the title (the purpose of which is to notify the members of the legisla‑ ture and the public of the subject matter of the proposed legislation)."

            It is the second prohibition which would present a constitutional problem here. The language of the title of chapter 67, supra, as we have seen, in no way suggested that §§ 20‑24 were to be repealed. Thus, any construction of § 2 of that act which, in effect, would repeal all of those sections must be rejected. As stated inSoundview Pulp Co. v. Taylor, 21 Wn.2d 261, at 268, 150 P.2d 839 (1944):

            ". . . In such cases the rule is that, where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted. . . ."

            This means, then, that the only remaining alternatives would be either (a) to read § 2, chapter 67,supra, as encompassing only the amendatory proviso which was added by § 1 of that act; or (b) to read "this act" in § 2,supra, as encompassing all of RCW 84.55.010.  We have earlier rejected the second [Orig. Op. Page 6] of these choices because of both the clear and apparent meaning of the phrase "this act" in the context in which it appears in § 2, supra, and the incongruity which that alternative approach would produce. Thus, we answer your question, instead, in a manner consistent with the first of these two alternatives.[1]

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

TIMOTHY R. MALONE
Assistant Attorney General