Letter Opinion 1970 No. 033

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                                                                  March 17, 1970
 
 
 
Honorable Paul H. Conner
State Representative, 34th District
Route 3, Box 472
Sequim, Washington 98382
                                                                                                               Cite as:  AGLO 1970 No. 33
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question pertaining to excess property tax levies, as affected by the provisions of chapter 92, Laws of 1970.
 
            As you have correctly pointed out, § 5 of this act amended RCW 84.52.050 so as to reduce the maximum aggregate rate of regular property tax levies by the state, together with all municipal corporations and taxing districts (other than port and public utility districts), from forty mills on the dollar assessed valuation to twenty-two mills.1/   Based upon this statutory amendment ‑ coupled with the fact that the constitutional limitation upon the aggregate rate of regular property tax levies by the subject taxing authorities remains at forty mills2/ you have asked the following question:
 
            "Does it not follow then that a taxing district requesting a special levy that would not increase the total millage beyond the 40 mill limit would need only a simple majority of those voting to validate a special levy issue?"
 
            We believe that this question must be answered in the negative.
 
             [[Orig. Op. Page 2]]
                                                                     ANALYSIS
 
            It is of course, fundamental that a taxing district in this state has only such authority to levy and collect property taxes as has been granted to it by law.  See, State ex rel. King County v. State Tax Commission, 174 Wash. 668, 26 P.2d 80 (1933); Great Northern Railway Co. v. Glover, 194 Wash. 146, 77 P.2d 598 (1938), and similar cases.  It has further been established by a supreme court decision that the excess levy provisions contained in Amendment 17 to the state Constitution3/ are not self-executing grants of power to the various taxing authorities.  Union High Etc. v. The Taxpayers Etc., 26 Wn.2d 1, 172 P.2d 591 (1946).  Rather, as explained by the court in that case, these provisions
 
            ". . . operate[s] simply as a limitation upon the power of the legislature to enact laws; . . ."
 
            With these principles in mind, the important point to be noted and understood is that, at present, the affirmative grant of authority which the legislature has given to the various subject taxing districts to levy property taxes is contained not only in RCW 84.52.050 (as amended by § 5, chapter 92, Laws of 1970)4/ but in another statute, RCW 84.52.052, as well.  This statute, which was not amended by chapter 92, Laws of 1970, continues to read, in material part, as follows:
 
            ". . .  Any county, school district, metropolitan park district, park and recreation district in class AA counties and counties of the second, eighth and ninth class, sewer district, water district, public hospital district, rural county library district, intercounty rural library district, fire protection district, cemetery district, city or town 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 county, school district,  [[Orig. Op. Page 3]] metropolitan park district, park and recreation district in class AA counties and counties of the second, eighth and ninth class, sewer district, water district, public hospital district, rural county library district, intercounty rural library district, fire protection district, cemetery district, city or town 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 county commissioners, board of school directors, or council, board of commissioners, or other governing body of any metropolitan park district, park and recreation district in class AA counties and counties of the second, eighth and ninth class, sewer district, water district, public hospital district, rural county library district, intercounty rural library district, fire protection district, cemetery district, city or town, by giving notice thereof by publication in the manner provided by law for giving notices of general elections, at which special election the proposition of 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, That the total number of persons voting at such special election must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general state election:  Provided further, That the total number of persons voting on an excess levy for school district purposes or for fire protection purposes or for cities and towns at any such special election of such districts or of any city or town must constitute not less than forty percent of the voters in such taxing districts or in any city or town, as the case may be who voted at the last preceding general election in such district."  (Emphasis supplied.)

 
            Remembering that RCW 84.52.050, which is referred to in this last quoted statute, is the statute which was  [[Orig. Op. Page 4]] amended by § 5, chapter 92, Laws of 1970, supra, it follows that under RCW 84.52.052, the authority of any of the taxing districts which are subject thereto to levy taxes in excess of the new twenty-two mill limit established by this 1970 amendment still remains governed by a "sixty percent and forty percent" voting requirement ‑ albeit a statutory requirement rather than a requirement imposed by the state Constitution.5/   Likewise, a similar result obtains by reason of § 8, chapter 92, Laws of 1970, with respect to those taxing districts not governed by RCW 84.52.052.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
PHILIP H. AUSTIN
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/And further, to twenty mills, in the event that the constitutional amendment contained in H.J.R. No. 42 is approved by the voters at the November, 1970 general election.
 
2/See, Article VII, § 2 (Amendment 17).
 
3/I.e., permitting excess property tax levies only upon approval by a sixty percent majority of the voters at an election at which the total number of votes cast on the proposition constitutes not less than forty percent of the total number of votes cast in the taxing district at the last preceding general election.
 
4/To the extent of property taxes within the new statutory twenty-two mill limit.
 
5/As you are aware, the constitutionality of these voting requirements with respect to excess property tax levies is currently in litigation both before the Washington state supreme court and in several pending United States district court actions.  However, until and unless these procedures are declared to be unconstitutional by the courts, we must, in accordance with long-standing policy, continue to presume the constitutionality.  In addition, we would point out that this office is actively engaged in all of these pending cases in support of the constitutionality of the challenged voting procedures.