SCHOOL DISTRICT EXCESS LEVY ‑- VOTING REQUIREMENTS

SCHOOL DISTRICT EXCESS LEVY ‑- VOTING REQUIREMENTS.

The voting requirements for a special election held by a school district after June 13, 1957, for authority to impose an excess tax levy are to be determined under Section 1, Chapter 32, Laws of 1957.

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                                                                     July 5, 1957

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington                                                                                                                Cite as:  AGO 57-58 No. 92

Dear Sir:

            You have requested an opinion from this office relating to the voting requirements for a special election held by a school district to authorize imposition of an excess tax levy.  Your question is prompted by the fact that the legislature passed two conflicting amendments to the same statute during its recent session.  We paraphrase your question as follows:

            Are the voting requirements for a special election held by a school district after June 12, 1957, for authority to impose an excess tax levy to be determined under section 1, chapter 32, Laws of 1957?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            Section 1, chapter 93, Laws of 1955, authorizes certain taxing districts to levy taxes in excess of specified rates.  The portion of the act pertinent to our inquiry reads as follows:

            ". . .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  [[Orig. Op. Page 2]] total number of persons voting on an excess levy for school district purposes at any such special election of any school district prior to November 7, 1956, must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general election in such district."

            Sections 1 and 2, chapter 32, Laws of 1957, amend the above act to read in pertinent part as follows:

            ". . .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 at any such special election of any school district must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general election in such district.

            "Sec. 2.  This act is necessary for the immediate support of the existing public institutions and shall take effect immediately."

            Chapter 32, Laws of 1957, quoted supra, was passed by the House on February 8, 1957, and by the Senate on February 21, 1957.  It was approved by the governor on March 1, 1957, and filed with the Secretary of State on March 2, 1957.  Due to the emergency clause, it became effective immediately.

            Section 15, chapter 58, Laws of 1957, also amends section 1, chapter 93, Laws of 1955.  Its obvious purpose was to authorize park and recreation districts in Class AA counties to levy taxes in excess of specified rates.  However, it also amends the proviso specifically relating to school districts to read as follows:

             [[Orig. Op. Page 3]]

            ". . .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 current operating purposes at any such special election of any school district prior to November 3, 1954, must constitute not less than forty percent of the voters in said taxing district who voted at the last preceding general election in such district."

            Chapter 58, Laws of 1957, was passed by the House on March 1, 1957, and by the Senate on February 27, 1957.  It was approved by the governor on March 9, 1957, and filed with the Secretary of State on March 9, 1957.  The act does not have an emergency clause and is effective, if at any time, on June 13, 1957, ninety days after the adjournment of the legislature.

            There are many cases in this state in which the court has resolved conflicts between statutes passed at the same session of the legislature.  For the most part, however, these cases are concerned with a repeal by implication due to the passage of conflicting but independent statutes.  SeeHeilig v. Puyallup City Council, 7 Wash. 29;Whitfield v. Davies, 78 Wash. 256; Spokane County v. Certain Lots, 153 Wash. 462;  State ex rel. Wenatchee etc. District v. Banker, 179 Wash. 343;State ex rel. Shomaker v. Superior Court, 193 Wash. 465;Commissioners of King County v. Davies, 1 Wash. 290; Gunther v. Huneke, 58 Wash. 494; Hardin v. Klickitat County, 115 Wash. 389.

            In the present case we are concerned with an attempt by the legislature to amend the same statute twice at the same session.  State ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, is such a case.  In resolving the conflict the court stated:

            ". . . In view of our constitutional provision, and in view of our holdings relative to the effect of an amendment, it is impossible for us to conclude that chapter 42 and chapter 179 may both stand, and we think it follows that chapter 179, being enacted after chapter 42, and having an emergency clause, became the law, and that  [[Orig. Op. Page 4]] chapter 42 never became effective."  (Emphasis supplied.) (Page 687)

            Later in the same opinion the court stated:

            ". . . We think it must be assumed that the last amendment is the last word of the legislature, and contains the final act of the legislature, and that the act as finally amended supersedes all attempted prior amendments of the original section."  (Page 692)

            In deciding theGebhardt case, supra, the court placed great emphasis on the fact that the act to which it gave effect was the last act passed by the legislature.  However, we believe that in the present case factors other than the time of passage of the two acts must be considered in attempting to arrive at the true intent of the legislature.  For example, the first of the two acts here involved contains an emergency clause.  This is the reverse of the situation in the Gebhardt case, where it was the second orlast act which contained such a clause.

            In the present case the first act unquestionably became effective several months prior to the date when the second act was scheduled to become law.  Are we then to assume that the legislature intended the first act to operate for but a few months, only to be replaced by the second?  Such an assumption would seem to make little practical sense.  Furthermore, it ignores the weight which our court has held should be given to the mere existence of an emergency clause.

            InHeilig v. City Council of Puyallup, 7 Wash. 29, 31, the court discussed the effect of an emergency clause when two conflicting statutes on the same subject matter were approved by the governor on the same day.  The court stated:

            ". . . But we are also of the opinion that where two conflicting acts upon the same subject matter are passed at the same session of the legislature, . . . and one of them contains an emergency clause  [[Orig. Op. Page 5]] and the other does not, that one containing the emergency clause must be taken to overcome the other.  The simple fact of there being an emergency clause would tend to show that the subject matter of the act was more clearly and pointedly before the legislature than the subject matter of the other act. . . ."

            While it is clear that the above rule is applied only when necessary to give effect to the legislative will (Spokane County v. Certain Lots in Spokane, 153 Wash. 462, 472), in our opinion, the present case is a proper one in which to apply the rule.

            The title of chapter 32, Laws of 1957, states that it is an act "relating to the authorization of excess property tax levies by certain taxing districts . . ."  The only effect of the act is to amend the proviso quoted above relating to excess tax levies by school districts.

            On the other hand, chapter 58, Laws of 1957, states that it is an act "relating to park and recreation districts in Class AA counties; providing for the establishment, operation, regulation, and dissolution thereof; defining powers and duties in relation thereto; amending section 1, chapter 93, Laws of 1955 and RCW 84.52.052; and providing penalties."  The only indication in the title of the act that it is applicable to excess tax levies by school districts is found in the recital that the act amends section 1, chapter 93, Laws of 1955 and RCW 84.52.052.  A legislator, looking at the title of the act, would recognize that it concerned excess tax levies for school districts only if he knew that RCW 84.52.052 and section 1, chapter 93, Laws of 1955, concerned such tax levies.  An examination of the titles of both acts indicates that the provisions of chapter 32, Laws of 1957, were more clearly and pointedly before the legislature than were the provisions of section 15, chapter 58, Laws of 1957.

             [[Orig. Op. Page 6]]

            In arriving at our conclusion, we have considered RCW 1.12.025, which provides as follows:

            "If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control."

            By the terms of the statute, where there is a "conflict in purpose" between amendments, the act last filed with the secretary of state shall control.

            In the present case, we find no "conflict in purpose" between the two amendments.  The obvious purpose of chapter 32, Laws of 1957, was to extend the operation of the proviso relating to excess levies for school districts beyond November 7, 1956.  As we previously noted, the obvious purpose of section 15, chapter 58, Laws of 1957, was to include park and recreation districts in Class AA counties within the category of taxing districts authorized to levy taxes in excess of specified rates.

            It is difficult to conceive of any purpose for the amendment to the proviso relating to excess tax levies by school districts found in section 15, chapter 58, Laws of 1957.  The amendment re‑adopts the language of section 1, chapter 189, Laws of 1953.  As amended, it could have no force or effect because the period of time during which the amendment, by its language, is operative has long since passed.  The only possible explanation for the amendment to the proviso is that the bill-drafter inadvertently used the language of the 1953 act instead of the language of the later enactment.  In our opinion, to ascribe a legislative purpose to a bill-drafter's inadvertence, thus defeating the obvious intention of the legislature clearly expressed in the first act, would be  [[Orig. Op. Page 7]] unwarranted.  We conclude, therefore, that there is no "conflict of purpose" between the amendments to the proviso relating to excess levies for school districts within the contemplation of RCW 1.12.025.

            In view of the fact that chapter 32, Laws of 1957, contains an emergency clause, that its title refers more pointedly and specifically to the nature of the amendment, and that no purpose can be deduced for the amendment of the proviso contained in chapter 58, Laws of 1957, we conclude that chapter 32, Laws of 1957, is controlling.

            It is our opinion, therefore, that the number of persons who must vote at a special election held by a school district after June 12, 1957, on a proposition for an excess tax levy must be determined by reference to chapter 32, Laws of 1957.

            In keeping with our policy, we have not considered the constitutional objections raised against the statutes.  See Opinions of the Attorney General, 1945-46, page 269 [[to John T. Welsh, Prosecuting Attorney, Pacific County on July 17, 1945]].

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ELVIN J. VANDEGERG
Assistant Attorney General