OMISSION OF SPECIAL LEVY FROM CERTIFICATION TO COUNTY AUDITOR

OMISSION OF SPECIAL LEVY FROM CERTIFICATION TO COUNTY AUDITOR.

Annual budget may not be amended to include a special levy authorized by special election, which through inadvertence is omitted from the certification to the county assessor.

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                                                               December 15, 1952

Mr. Walter Roberge, Chairman
Board of County Commissioners
Clallam County
Port Angeles, Washington                                                                                                              Cite as:  AGO 51-53 No. 439

 Dear Sir:

             This is in reply to your request for an opinion as to the proper procedure to amend the annual budget so as to include a special levy for the 1953 street bond fund which was inadvertently omitted from the certification to the county assessor for the year 1953.

             A copy of the certification from the city of Port Angeles is transmitted with your letter.  The last item shown is a request for millage of 1.6228 for 1953 street bond fund as authorized by special election held March 11, 1952.  When the tax levies were submitted by the county commissioners to the county assessor October 20, 1952, the amount for the street bond fund was omitted and the total levy for the city of Port Angeles was shown as 15 mills instead of 16.6228 mills.

             You state, "This omission was not detected until yesterday afternoon, and as it is felt that the special levy is necessary for inclusion in the 1953 tax rolls we would like an opinion as to proper procedure in making the correction."

             It is our conclusion that the annual budget may not be amended to include a special levy authorized by special election, which through inadvertence is omitted from the certification to the county assessor.

              [[Orig. Op. Page 2]]

                                                                     ANALYSIS

             RCW 36.40.070, 36.40.080 and 36.40.090, require the county commissioners to meet on the first Monday in October of each year for hearings on the preliminary budget, fixing and determining each item of the budget, adoption of the budget as finally determined, and fixing the amount of the necessary levies.  The estimates of expenditures itemized and classified as finally fixed and adopted in detail by the Board of County Commissioners shall constitute the appropriations for the county for the ensuing fiscal year.  RCW 36.40.100.

             The statute (RCW 36.40.100) further provides:

             "* * * and the county commissioners and every other county official shall be limited in the making of expenditures or the incurring of liabilities to the amount of such detailed appropriation items or classes respectively:  * * *"

             RCW 36.40.130 provides:

             "* * * The county auditor shall issue no warrant and the county commissioners shall approve no claim for any expenditure in excess of the detailed budget appropriations * * *"

             Except upon an order of a court of competent jurisdiction, or for emergencies, as provided by RCW 36.40.180, which reads as follows:

             "Upon the happening of any emergency caused by fire, flood, explosion, storm, earthquake, epidemic, riot, or insurrection, or for the immediate preservation of order or of public health or for the restoration to a condition of usefulness of any public property the usefulness of which has been destroyed by accident, or for the relief of a stricken community overtaken by a calamity, or in settlement of approved claims for personal injuries or property damages, exclusive of claims arising from the operation of any public utility owned by the county,  [[Orig. Op. Page 3]] or to meet mandatory expenditures required by any law, the board of county commissioners may, upon the adoption by the unanimous vote of the commissioners present at any meeting the time and place of which all such commissioners have had reasonable notice, of a resolution stating the facts constituting the emergency and entering the same upon their minutes, make the expenditures necessary to meet such emergency without further notice of hearing."

             When the county commissioners finally fix the amount of the levies, that necessarily is the time when the levy is made.  There is no provision fixed by the law under which a special levy, authorized by special election, as stated above, which is inadvertently omitted from the certification to the county assessor may be added by the county commissioners after the conclusion of the hearings on the budget as provided by RCW 36.40.060 et seq.

             In a letter to the prosecuting attorney for Garfield county December 4, 1936, we held that the Board of County Commissioners had no authority after the budget hearing to include in their annual budget a levy for county road districts which had, through error, been omitted.  We advised the superintendent of public instruction December 20, 1935, that the levies, when finally concluded by the county commissioners, go to the county assessor who places them on the books and delivers them to the county treasurer and that a levy authorized by special election held after the first Monday in October could not be included in the budget for the current calendar year; and that the county commissioners have no warrant in law, after they have finally fixed their levies, to increase them.

 Very truly yours,
SMITH TROY
Attorney General 

SMITH TROY
Assistant Attorney General