METROPOLITAN MUNICIPAL CORPORATIONS ‑- TAXATION ‑- ESTABLISHMENT OF BOUNDARIES

METROPOLITAN MUNICIPAL CORPORATIONS ‑- TAXATION ‑- ESTABLISHMENT OF BOUNDARIES.

A metropolitan municipal corporation may not levy a tax in October 1958, or in October 1959, if the election to secure approval of the formation of the corporation and for the imposition of the tax levy is held on March 11, 1958.

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                                                                February 20, 1958

Honorable Martin J. Durkan
State Representative, 31st District
908 American Building
Seattle 4, Washington                                                                                        Cite as:  AGO 57-58 No. 161

Dear Sir:

            This letter is written in answer to your request for an opinion on several questions relating to metropolitan municipal corporations.  We paraphrase your questions as follows:

            (1) If an election is held on March 11, 1958, for the purpose of securing voters' approval for the formation of a metropolitan municipal corporation and for imposition of an excess tax levy for such district, may the levy, if approved by the voters, be made in October, 1959?

            (2) If the answer to question (1) is in the negative, may the levy be made in October, 1958?

            We answer both of your questions in the negative.

                                                                     ANALYSIS

            The pertinent portions of the statutes and the constitution necessary for an analysis of your questions are as follows:

             [[Orig. Op. Page 2]]

            Amendment 17, Washington State Constitution

            "Art. 7 § 2 FORTY MILL LIMIT.  Except as hereinafter provided and notwithstanding any other provision of this Constitution, the aggregate of all tax levies upon real and personal property by the state and all taxing districts now existing or hereafter created, shall not in any year exceed forty mills on the dollar of assessed valuation, . . .  Such aggregate limitation or any specific limitation imposed by law in conformity therewith may be exceeded only

            "(a) By any taxing district when specifically authorized so to do by a majority of at least three‑fifths of the electors thereof voting on the proposition to levy such additional tax submitted not more than twelve months prior to the date on which the proposed levy is to be made. . ."  (Emphasis supplied.)

            RCW 35.58.090:

            "At the same election (the election to authorize the formation of the district) there shall be submitted to the voters residing within the metropolitan area, for their approval or rejection, a proposition authorizing the metropolitan municipal corporation, if formed, to levy at the earliest time permitted by law on all taxable property located within the metropolitan municipal corporation a general tax, for one year, of one mill in excess of any constitutional or statutory limitation for authorized purposes of the metropolitan municipal corporation. . . ." (The above language in parentheses added for clarification) (Emphasis supplied.)

            RCW 84.08.160:

            "For the purposes of property taxation and the levy of property taxes the boundaries of counties, cities and all other taxing districts shall be the established official boundaries of such districts existing on the first day of March of the year in which the levy is made, and no such levy shall be made for any taxing district whose boundaries were not duly established on the first day of March of such year. . . ." (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            RCW 84.04.120:

            "'Taxing district' means . . . municipal corporation, authorized by law to impose burdens upon property within the district in proportion to the value thereof, . . ."

            Question (1)

            The seventeenth amendment to the state constitution specifically provides that the proposition for an excess tax levy must be submitted to the voters "not more than twelve months prior to the date on which the proposed levy is to be made."  Thus, if the proposition is submitted to the electors in March, 1958, the levy cannot be made in October, 1959.

            Question (2)

            Under RCW 35.58.090, quoted above, the voters residing within the proposed metropolitan municipal corporation are to approve or reject a proposition for a one mill excess tax levy at the same election at which they approve the formation of the district.  The levy, if approved, is to be made "at the earliest time permitted by law".

            The immediate question is: Does the law permit a metropolitan municipal corporation established after March 1, 1958, to levy the tax in October, 1958?

            A metropolitan municipal corporation is a "taxing district" within the purview of RCW 84.04.120, quoted above, because it is authorized to impose burdens upon property in proportion to the value of the property.  Under RCW 84.08.160, quoted above, a taxing district may not levy a tax in any year unless the boundaries of the district were duly established on the first day of March of such year.  It is not necessary at this time to determine when the boundaries of the proposed metropolitan municipal corporation are duly established within the purview of chapter 35.58 RCW and RCW 84.08.160.  It suffices to say that the boundaries of the district could not be established prior to the date the voters approve the formation of the municipal corporation.

            It is apparent from the foregoing that a metropolitan municipal corporation which is formed after an election held on March 11, 1958, cannot levy the tax in October, 1958, by virtue of RCW 84.08.160 and cannot levy the tax in October, 1959, by virtue of the seventeenth amendment to the state constitution.  This conclusion is consistent with two prior opinions of the attorney general relating to a fire  [[Orig. Op. Page 4]] protection district and a school district.  (See AGO 53-55 No. 213 [[to M. Sensney, Prosecuting Attorney, Benton County on February 23, 1954]]and No. 332 [[AGO 53-55 No. 332 to H. V. Doherty, Prosecuting Attorney, Clallam County on October 5, 1954]].)

            In arriving at our conclusion, we have considered the possibility that chapter 35.58 RCW was intended to create an exception to RCW 84.08.160.  We recognize that under chapter 35.58 RCW, the county commissioners operate on a schedule set by the statute which requires that they perform all acts leading to the formation of the metropolitan municipal corporation within designated periods of time.  This schedule prevents the commissioners from arbitrarily setting the date for the election on the excess tax levy.  Consequently, there is a period during the year (from March 1 to the October levy date) when the commissioners may be required to submit the proposition for an excess tax levy and, although the levy is approved by the voters, the levy cannot be made.  This, of course, conflicts with the general rule of statutory construction that the statute must be interpreted so as to give the legislation an effective and operative result. 2 Sutherland, Statutory Construction (3rd Ed.), page 327.

            On the other hand, if RCW 35.58.090 is interpreted as creating an exception to RCW 84.08.160, the purpose of the latter statute would be rendered ineffective.  The purpose of RCW 84.08.160 is to provide an orderly process for the listing and assessing of property for the purpose of ad valorem taxation.  If RCW 35.58.090 is construed as creating an exception to the general statute, the assessor may, in the future, be presented with the formation of a district in September and required to change his listing and assessing procedures to levy a tax in October of the same year.  RCW 84.08.160 has a salutary purpose, and an exception to its application would seriously impair the listing and assessing of property forad valorem taxation.

            In our opinion, the language of RCW 35.58.090 evidences a legislative intent that the statute was not intended to create an exception to RCW 84.08.160.  It states that the levy is to be made "at the earliest time permitted by law,"  This clearly contemplates a levy in conformity with the statutory and constitutional provisions specifying the time that taxes may be levied.

            The foregoing conclusions do not involve "constitutionality" of the proposal to create a metropolitan municipal corporation.  We are here concerned only with whether or not the proposed levy may be imposed in either October 1958 or October 1959.

            We are aware of the problems inherent in our conclusions set forth above.  However, we are powerless under the circumstances.  The legislature alone may  [[Orig. Op. Page 5]] determine whether the imposition of an excess tax levy by a metropolitan municipal corporation is of such public importance that its imposition should override the orderly process of listing and assessing property for tax purposes.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ELVIN J. VANDERBERG
Assistant Attorney General