TOWNSHIPS ‑- TAXATION ‑- LEVY LIMITATIONS ‑- EXCESS OF, FOR BOND RETIREMENT ‑- ELECTION PROCEDURE FOR EXCESS OF ‑- BONDS ‑- VOTER REQUISITE TO AUTHORIZE

TOWNSHIPS ‑- TAXATION ‑- LEVY LIMITATIONS ‑- EXCESS OF, FOR BOND RETIREMENT ‑- ELECTION PROCEDURE FOR EXCESS OF ‑- BONDS ‑- VOTER REQUISITE TO AUTHORIZE

(1) Township electorate may authorize tax levy in excess of 40 mill aggregate limitation, but not in excess of specific limitation, where purpose is retirement of bonds for capital improvements.

(2) Election at town meeting is proper method for authorization of tax levy in excess of 40 mill limitation.

(3) Two-thirds majority vote of electorate necessary to authorize issuance of township bonds.

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                                                                  March 22, 1950

Honorable Hugh H. Evans, Prosecuting Attorney
Spokane County
County Court House
Spokane 11, Washington                                                                                                              Cite as:  AGO 49-51 No. 240

Attention:  Earl W. Foster, Deputy

Dear Sir:

            This is in reply to your request for our opinion upon several questions regarding the powers of a township, particularly with regard to the procedure to be followed in the authorization and issuance of bonds for capital purposes and the limitations on tax levies for the retirement thereof.  Your questions may be restated as follows:

            (1) May a township having a population of less than 5,000 inhabitants levy taxes at a rate in excess of two mills to retire general obligation bonds issued for capital purposes?

             [[Orig. Op. Page 2]]

            (2) Is a vote taken at a town meeting on the question of the authorization of a levy in excess of 40 mills a compliance with the constitutional and statutory provisions for the obtaining of such authority?

            (3) What is the necessary vote to authorize the issuance of bonds by a township?

            Our conclusions may be summarized as follows:

            (1) A township having a population of less than 5,000 inhabitants may not levy taxes at a rate in excess of two mills, even where such levy is authorized by the electorate and the purpose thereof is the retirement of general obligation bonds issued for capital purposes; but a township electorate may provide that the levy for such purposes be over and above the 40 mill aggregate levy limitation.

            (2) For the purpose of authorizing a tax levy for township purposes which may exceed the 40 mill aggregate levy limit, a vote taken at a properly called and conducted town meeting satisfies the requirement of a special bond election.

            (3) A two-thirds majority vote of its electorate is necessary for a township to be authorized to issue bonds.

                                                                     ANALYSIS

            You have referred to our opinion to the Prosecuting Attorney of Whatcom County rendered November 3, 1949, in which it was stated that a township having a population of less than 5,000 inhabitants is not empowered to levy property taxes at a rate in excess of 2 mills, even when authorized by a vote of its electors.  By section 3, chapter 148, Laws of 1945 [11449-1 Rem. Supp. 1945] such a township is authorized to levy up to 2 mills.  You have pointed out the provisions of Amendment 17 to the Washington Constitution and its implementing statute, section 1, chapter 253, Laws of 1945 [11238-1e Rem. Supp. 1945], and inquire as to whether that statute would provide authority for an excess of the 2 mill limitation when the purpose of such levy was to retire general obligation bonds issued for capital purposes.

            It is our conclusion that the electorate of a township having a population of less than 5,000 inhabitants may authorize a tax levy in excess of the 40 mill aggregate limitation, but cannot authorize a levy in excess of the  [[Orig. Op. Page 3]] 2 mill limitation.  Amendment 17 provides an aggregate property tax levy limit of 40 mills on the dollar of assessed valuation, and further provides:

            "Suchaggregate limitation or any specific limitation imposed by law in conformity therewith may be exceeded only

            "(a) * * *

            "(b) by any taxing district otherwise authorized by law to issue general obligation bonds for capital purposes, * * *" (Emphasis added).

            Section 1, chapter 253, Laws of 1945 [11238-1e Rem. Supp. 1945], was enacted immediately following the adoption of Amendment 17 as an implementing statute to that amendment.  InUnion High School District No. 1, Skagit County v. Taxpayers of Union High School District No. 1, Skagit County, 26 Wn. (2d) 1, 172 P. (2d) 591, the Supreme Court of Washington held that the constitutional provision imposed minimum requirements to be met in order to exceed the levy limitations contained therein, and that the legislature could properly impose restrictions in addition to those imposed by Amendment 17.  The court held that Amendment 17 is not a grant of power to the legislature or to taxing districts, but a limitation upon legislative grants of power.  Ibid. at p. 7.  In the above case the court upheld the provision added by the legislature in section 11238-1e supra, that the vote necessary to authorize excess levies for the retirement of general obligation bonds issued for capital purposes must be 40% of that number voting at the last preceding general state election, thereby adding to the "minimum" restrictions set by the constitutional amendment.  It follows, then, that in determining the powers of a township we must be guided not only by Amendment 17 but also by additional restrictions of statutory provision.  Further, we must find a statutory grant of power to levy in excess of both the aggregate and specific levy limitations.

            Section 11238-1e,supra, restates the 40 mill aggregate limitation, imposes specific levy limitations on the state, counties, road districts, school districts, cities and towns, and further states:

             [[Orig. Op. Page 4]]

            "Provided, further, That any municipal corporation otherwise authorized by law to issue general obligation bonds for capital purposes may, at an election duly held after giving notice thereof as required by law, authorize the issuance of general obligation bonds for capital purposes only, which shall not include the replacement of equipment, and provide for the payment of the principal and interest of such bonds by annual levies in excess of the tax limitationcontained herein."  (Emphasis added)

            Reading the constitutional and statutory provisions together, it will be found that any municipal corporation authorized by law to issue general obligation bonds for capital purposes will be permitted, for those purposes and when the procedure set forth therein is followed, to levy in excess of the 40 mill aggregate limitation.  Inasmuch as a township is empowered to issue such bonds [section 87, chapter 150, Laws of 1895; Rem. Rev. Stat. 11450], a township electorate may so authorize a levy in excess of the 40 mill aggregate limitation.  Your attention is invited to section 1, chapter 270, Laws of 1947 [11235 Rem. Supp. 1947], which provides for the prorating of levies where the aggregate of all levies on any property will exceed 40 mills.  By following the procedure set forth in section 11238-1e, a township may escape such proration and levy up to the full two mills.

            However, no authority exists for a levy in excess of 2 mills by such townships.  Section 11238-1e contains no grant of authority to a township to levy in excess of the statutory 2 mill limitation.  The portion above‑quoted from section 11238-1e empowers municipal corporations having the bond-issuing power to levy in excess only of the tax limitationcontained therein.  The limitations contained therein are the aggregate limitation upon all municipal corporations (except port and power districts) and specific limitations upon the state, counties, road districts, school districts, and cities or towns.  No limitation being imposed therein upon the levy for townships, no grant of authority is made by the proviso for an excess of the specific levy limitation upon townships.  Nor is such grant of authority found elsewhere in the statutes.  Your attention is invited to section 12, chapter 150, Laws of 1895 [Rem. Rev. Stat. 11371], for a restriction upon the powers of townships to those expressly given by law.  It will be  [[Orig. Op. Page 5]] noted that section 11449-1,supra, is a 1945 enactment, at which time, had the legislature desired to grant authority to a township to exceed 2 mills, the taking of such a step would have been obvious.  It is fundamental that municipal corporations have only such powers as are granted them; not being granted authority to levy in excess of 2 mills, no such power exists.

            To conclude the discussion of your first question, a township may, by following the procedure set forth in Amendment 17 and section 11238-1e,supra, provide that its 2 mill levy will not be cut down by the 40 mill aggregate limitation, but it may not provide for a levy in excess of two mills.

            Your second question pertains to the type of election necessary for the authorization of the bonds and the levies for the retirement thereof.  Rem. Rev. Stat. 11450,supra, provides for the procedure to be followed for the authorization of township bonds.  The question, then, is whether Amendment 17 and section 11238-1e, supra, require any different procedure when authorizing a levy in excess of the aggregate limitation for the retirement of such bonds.  Amendment 17 provides that the election be

            "held in the manner provided by law for bond elections in such taxing district, * * *."

            Section 11238-1e provides that such authorization shall be obtained at

            "an election duly held after giving notice thereof as required by law, * * *"

            Township elections are held at town meetings called and conducted in the manner provided by the statutes pertaining to townships.  Authorization by the township electorate obtained at a duly called and conducted town meeting would be a compliance with the constitutional and statutory provisions referred to.

            Referring to your third question, which does not refer to the authorization of an excess levy but only to an authorization of the issuance of bonds, you will note that section 11450, supra, provides for a two-thirds majority vote for such authorization.  Section 86, chapter 150, Laws of 1895 [Rem. Rev. Stat. 11448], requires the assent of a simple majority of the voters to authorize township officials to contract debts or make expenditures for any one year in a larger sum than the amount of taxes assessed for such year.  This latter provision has no bearing upon the issuance of bonds under section 11450.

             [[Orig. Op. Page 6]]

            In passing, we might note that only a three‑fifths majority vote is necessary to authorize the excess levy for such bonds, but the total number of those voting at such town meeting must be at least 40% of those voting in the township at the last preceding general state election.  Amendment 17; section 11238-1e Rem. Supp. 1945, supra;Union High School District v. Taxpayers,etc.,supra.

Very truly yours,

SMITH TROY
Attorney General

C. JOHN NEWLANDS
Assistant Attorney General