Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

RATES

AGLO 1975 No. 15 -
Attorney General Slade Gorton

COUNTIES ‑- PUBLIC TRANSPORTATION SYSTEMS ‑- TAXATION ‑- RATES

The rate of any such excise tax as would be imposed under proposed legislation to finance county public transportation systems would not constitutionally be required to be graduated so that higher rates would be paid by persons or businesses situated near or immediately adjacent to the transportation route involved than are paid by persons or businesses more remotely situated within the zone served by the public transportation system.

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

                                                                February 18, 1975

Honorable R. Ted Bottiger
State Senator, Second District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 15

Dear Senator Bottiger:

            This is written in further response to your recent letter requesting our advice with regard to the possibility of constitutional objections to a proposed bill which would authorize counties, in the operation of public transportation systems in unincorporated areas, to finance such systems, in part, by an excise tax,

            ". . . only in those portions of the unincorporated areas of the county served by the public transportation system: . . ."

            We have previously indicated to you in our letter of February 11, 1975 [[to R. Ted Bottiger, State Senator an Informal Opinion AIR-75700]], that such an excise tax wouldnot be subject to the uniformity clause of Article VII, § 1 (Amendment 14) of our state constitution1/which only applies to property taxes.  Thus, the fact that the tax here proposed would not be imposed county-wide would not render it unconstitutional.  The question which you have now asked, however, is this:

            Must the rate of any such exise tax as would be imposed under the subject legislative proposal be graduated to the end that higher rates will be paid by those persons or businesses situated near or immediately adjacent to the bus or other transit route involved than are paid by persons or businesses more remotely situated but still within the zone or area deemed to be served by the public transportation  [[Orig. Op. Page 2]] system?

            We answer this question in the negative.

                                                                     ANALYSIS

            We have little doubt but that the utilization of such graduated rates under the circumstances contemplated by this question would be constitutionallypermissible.  See, 71 Am.Jur.2d, State and Local Taxation, § 182 and cases cited therein.  However, we have found no decided cases from which it must be concluded that such a system of graduated rates is constitutionally required.

            Just as the tax in question would not be a property tax to which the uniformity clause of Article VII, § 1 would be applicable, it likewise would not be a special assessment against property specially benefited by a local improvement within the meaning of Article VII, § 9.2/   Accordingly, although this constitutional provision does require such special assessments to be apportioned on the basis of the special benefit resulting to each parcel of property within a local improvement district,3/ that requirement is similarly inapplicable to the excise tax here proposed.

            Another point to be noted is that in the case of cities and metropolitan municipal corporations, legislation already exists which authorizes the imposition of excise taxes upon all of the inhabitants of a municipality (or at least, all who are served and billed for any one or more public utility services) to pay a portion of the costs of public transportation.  See, chapter 35.95 RCW, codifying chapter 111, Laws of 1965, Ex. Sess.  No requirement is contained in this legislation that the rate of the tax be graduated or in any other manner apportioned in accordance with the degree or extent of benefit derived from public transportation by a particular taxpayer.  Nevertheless, when this office was asked prior to its enactment to express an opinion as to the constitutionality of that approach to the financing of public transportation, we approved.  See, AGO 61-62 No. 8 [[to Daniel J. Evans, State Representative on February 2, 1961]], copy enclosed, in which we concluded that legislation would be constitutional which would authorize  [[Orig. Op. Page 3]] cities owning transit systems to impose a sales tax on sales of city-furnished utility services with the revenues of such tax to be used to subsidize the transit system.  In so doing we made no mention of any constitutional need for graduation of rates or apportionment.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/". . .  All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax . . ."

2/"The legislature may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of property benefited."

3/See, In re Schmitz, 44 Wn.2d 429, 268 P.2d 436 (1954); andSterling Realty Co. v. Bellevue, 68 Wn.2d 760, 415 P.2d 627 (1966).