TOWNSHIPS -- TAX LEVY -- EXCESS OF TWO MILLS

TOWNSHIPS -- TAX LEVY -- EXCESS OF TWO MILLS

A township having a population of less than five thousand inhabitants is not empowered to levy property taxes at a rate in excess of two mills, even when so authorized by a vote of its electors.

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                                                                November 3, 1949

Honorable Boone Hardin
Prosecuting Attorney
Whatcom County
Bellingham, Washington                                                                                                              Cite as:  AGO 49-51 No. 153

Dear Sir:

            We have your letter of October 20, 1949, in which you ask the following question:

            Where a township having a population of less than five thousand inhabitants has an outstanding warrant indebtedness, issued for the purpose of providing funds for 1949 current expenses, may it levy its property tax at a rate in excess of the two mills authorized by law in order to retire such indebtedness, if so authorized by a vote of its electors?

            The conclusion reached may be summarized as follows:

            A township having a population of less than five thousand inhabitants is not empowered to levy property taxes at a rate in excess of two mills, even when so authorized by a vote of its electors.

                                                                     ANALYSIS

            In your letter of request you have referred to our opinion to you, rendered August 18, 1949, relative to the situation where certain townships in your county received no revenue from property taxation to provide for current expenses during the year 1949 due to the fact that no levy was made.  You state that pursuant to our  [[Orig. Op. Page 2]] opinion certain townships incurred a warrant indebtedness by following the procedure authorized by law.  Your present question involves the power of the township to levy excess millage in order to retire this debt.  Apparently the entire two mills authorized by law is needed to provide revenue for current expenses during the forthcoming year.

            Townships have only such power to tax as has been delegated to them by the legislature.  Rem. Rev. Stat. 11371;Great Northern Railway Company v. Glover, 194 Wash. 146, 77 P. (2d) 598;Opportunity Township v. Kingsland, 194 Wash. 229, 77 P. (2d) 793.  The electorate cannot enlarge upon the powers of a municipal corporation in absence of legislative authority.  In order to determine that a township has authority to levy a tax in excess of two mills for the purpose of retiring this indebtedness, we must find a specific delegation of such power to the township.  No such authority is found in the Washington Constitution.  Nor is statutory authority found for a township to levy in excess of two mills.  Section 3, chapter 148, Laws of 1945, empowers townships

            "* * * to raise such sums of money as they deem necessary, not to exceed two (2) mills, in any township having a population of less than five thousand (5,000) inhabitants as shown by the last official United States Census * * * on the assessed value of the taxable real and personal property in the township * * *"

            The above section is the last enactment by the legislature relative to the tax power of townships and must be deemed to supersede all prior inconsistent unrepealed acts.  We have reference to Rem. Rev. Stat. 11448, wherein it is stated:

            "* * * no town shall assess for township purposes more than ten mills on the dollar of taxable property for any one year."

             [[Orig. Op. Page 3]]

            Section 11448,supra, was enacted in 1895, and had reference to the provisions of Rem. Rev. Stat. 11445, which has since been repealed by section 4, chapter 148, Laws of 1945.  Prior to repeal, section 11445 provided for levies by townships up to ten mills, but this was at a time when townships levied for road purposes.  Such township powers have been repealed.  Great Northern Railway Company v. Glover, supra.  In consequence, the legislature has since provided that townships of the type here involved may not levy in excess of two mills.  No provision is found elsewhere in the statutes for an excess of this specific levy limitation.

            To summarize, we are of the opinion that townships are empowered by law to levy upon the taxable property therein at a rate not to exceed two mills upon the assessed valuation thereof.  In the absence of request by you, we have not considered the question of the power of townships to levy their full two mills when the aggregate of all levies upon property exceeds the 40 mill limitation.  See Amendment 17, Washington Constitution; section 1, chapter 253 Laws of 1945 [11238-1e Rem. Supp. 1945]; and section 1, chapter 270, Laws of 1947 [11235 Rem. Supp. 1947].

Very truly yours,

SMITH TROY
Attorney General

C. JOHN NEWLANDS
Assistant Attorney General