VOTE REQUIRED FOR EXCESS LEVY

VOTE REQUIRED FOR EXCESS LEVY

Forty percent of the number of voters who cast ballots at the preceding state general election may authorize an excess levy.

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                                                               November 23, 1951

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 173

Dear Sir:

            Receipt is acknowledged of your letter of November 6, 1951, in which you inquire whether, in view of the opinion of the Supreme Court in the recent caseDavis v. Gibbs, 139 Wash. Dec. 447 [[39 Wn.2d 481]], the language of a proviso in section 3, chapter 23, Laws of Second Ex. Sess. of 1951, requires that forty percent of the voters in a taxing district who voted at the last preceding general state election must actually vote in a special election, or whether it merely means that the number of votes cast at the special election must be in a number equal to forty percent of the total vote cast at the last preceding general state election.  The pertinent language of section 3 is as follows:

            "* * *Provided, That the total number of persons voting at such special election must constitute not less than forty per cent of the voters in said taxing district who voted at the last preceding general state election."

            It is our conclusion that the proviso above quoted from section 3, chapter 23, Laws of Second Ex. Sess. of 1951, should be interpreted as meaning that the number of votes cast in a special election must be in a number equal to forty percent of the total votes cast in the last preceding general state election.

             [[Orig. Op. Page 2]]                       ANALYSIS

            The language of the proviso, which is the subject of this opinion, was not introduced for the first time by chapter 23, Laws of Second Ex. Sess. 1951, but was taken verbatim from section 1, chapter 253, Laws of 1945 (Rem. 1945 Supp. § 11238-1e, RCW 84.52.050).  Chapter 23, Laws of Second Ex. Sess. of 1951, amended the preexisting statute and divided it into several parts.  This identical proviso has been in effect for a number of years and has always been interpreted as relating only to numbers of voters, rather than to identical persons who voted at the preceding election.

            There has been no case before our Supreme Court involving this identical proviso, but § 11238-1e Rem. 1945 Supp. contains other similar language which was before our Supreme Court in the case of Union High School District No. 1 of Skagit County v. Taxpayers of Union High School District No. 1, 26 Wn. (2d) 1, 172 Pac. 591.  That language reads:

            "* * * at which election the total number of persons voting on the proposition shall constitute not less than forty per centum of the total number of votes cast in such taxing district at the last preceding general election."

            In that case the court did not specifically discuss the question of whether the number had to be made up of the identical voters who cast their ballots at the preceding general election, but the court did consider rather thoroughly the meaning of the section and the decision was entirely concerned with the number voting rather than identifying the individual voters at the preceding election.  The fact that no contention was raised that identity of voters was essential is in itself some indication that there is no such requirement.

            In the recent case ofDavis v. Gibbs, 139 Wash. Dec. 447 [[39 Wn.2d 481]], our Supreme Court was concerned with the question of whether voting at the preceding general election was a prerequisite to qualifying one to sign a petition.  The language there in question was:

            "'A petition shall be presented to the board of county commissioners of such county, signed by at least twenty per centum of the qualified electors of such county, residents within the limits of the territory proposed to be annexed to such city, who voted at the last previous election as shown by the official poll books, * * *'"

             [[Orig. Op. Page 3]]

            The court there held that only the identical persons who voted at the preceding election may sign the petition.  The decision was based upon the construction of the sentence.  The court said that the words "voted at the last previous election" related to their immediate antecedent "residents within the limits of the territory" and that, therefore, identity of persons was required by the statute.

            In the proviso which we are discussing from § 3, chapter 23, Laws of Second Ex. Sess. 1951, the proviso uses the language:

            "* * * That the total number of persons * * *"  (Emphasis supplied)

            The language of the statute, itself, relates to the number of persons voting, rather than to individuals.  The word "number" is the subject of the sentence and if the same reasoning is used relative to the antecedent of the clause "who voted at the last preceding general state election" it will be found that the clause applies to the word "number."

            It is, therefore, our opinion that the number of persons voting, rather than the identical voters, should be considered in determining the validity of the election.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General