Department of Revenue v. Hoppe

Utter, J.

(dissenting) — The conclusion that tax relief measures are not immediately effective is an unpopular one. I believe, however, no other conclusion should be reached. *565The result of the majority opinion is to invalidate levies passed in 37 counties of this state, in what must have been reliance on the language of the acts in question and our previous cases.

The majority concludes the word “levy” applies to the collection of taxes, but to do so they are forced to interpret the unambiguous use of the word “levy” as it relates to RCW 84.52. They also fail to explain why Carkonen v. Williams, 76 Wn.2d 617, 627, 458 P.2d 280 (1969) is not controlling on this issue.

A 21-mill limitation is produced without explanation of where this is found in section 24 or 25 of chapter 299, Laws of 1971, 1st Ex. Sess. If, in fact, Initiative 44 with its 20-mill limit amends section 24, then we should logically be compelled to assume section 24 could not then, in some fashion, still validly authorize 21 mills. No explanation is given for the contrary conclusion.

Finally, even if this millage allocation can somehow be found, the majority uses the wrong statute to authorize an assessor to modify the legislative enactment of the county council, thereby violating the separation of powers doctrine basic to our form of government.

This case involves an effort by the Washington State Department of Revenue to obtain a writ of prohibition against the King County Assessor to restrain him from extending the King County Council tax levy at millage rates less than necessary to raise amounts certified under the county ordinances. The essential question is what is the applicable mill limit governing the ordinance levies in this case, a figure to be determined by deciding which of a number of pertinent laws apply.

The majority holds the 20-mill limitation of SJR 1 and Initiative 44 applies to taxes “collectible in 1973, regardless of when they were levied”; that the allocation portion of sections 24 and 25, chapter 299, Laws of 1971, 1st Ex. Sess. is valid and provides for 21 mills; and, that the excess millage in the county ordinances is to be cut pursuant to *566RCW 84.52.010, which instructs the assessors in situations of excessive aggregate levy rates. •

I cannot agree with these conclusions and believe they are arrived at by inappropriate analysis.

I believe the assessor is required to extend the 1972 levies on the tax rolls pursuant to the 1972 King County ordinances because the ordinance levies were enacted prior to the effective date of either SJR 1 or Initiative 44, and therefore do not exceed any constitutional or statutory limitations. However, if any excess is found, as the majority finds, the county ordinances are a nullity and new levies must be enacted.

My first departure from the majority is with their definition of what the millage rate is for taxes “for collection in the calendar year 1973”. In determining which laws apply, the meaning of the word “levy” as used in the context of this case is critical. To include within the expression of the basic issue of this case, a conclusion that “levy” is to mean the “collection” and not the legislative act alone, assumes the question to be answered.

The appellant-Department of Revenue asserts “levy” means the exercise of a legislative function, undertaken here by the county council and that the levies in this case were made at the passage of the county ordinances establishing the 1972 levy, regardless of any subsequent duties the county assessor must perform. The cross-appellants assert that the levy process includes the assessor’s duties and thus at the effective dates of SJR 1 or Initiative 44, whatever they might be, the levy had yet to be completed.

We have long recognized that the word “levy” is subject to various meanings. Hays v. Miller, 1 Wash. Terr. 143, 147 (1861); Carkonen v. Williams, supra. In resolving other issues we have recognized that usage of the word “levy” may indicate the legislative function of imposing a tax, as well as the administrative assessing or extending of the tax. Dore v. Kinnear, 79 Wn.2d 755, 758, 489 P.2d 898 (1971); State ex rel. Morgan v. Kinnear, 80 Wn.2d 400, 494 P.2d 1362 (1972).

*567Given our recognition in this state that the word “levy” may receive numerous usages depending upon the meaning to be conveyed, no resort to outside authority is needed.2 The critical error by the majority, however, is not their source, but their purpose. The cases used do demonstrate the word “levy” is subject to numerous meanings, but they do not support a conclusion that the word is ambiguous when used in the context now before us. The mere fact a word may receive multiple meanings does not mean it is ambiguous when used in a particular context and the majority has failed to demonstrate any ambiguity of “levy” here. In this case, the word “levy” is not ambiguous and the majority need not search the legislative history resource of the voters’ pamphlet, explaining SJR 1 and Initiative 44, to clarify its meaning. Spokane v. State, 198 Wash. 682, 691, 89 P.2d 826 (1939); State v. Coma, 69 Wn.2d 177, 182, 417 P.2d 853 (1966).

The voters’ pamphlet may be referred to in an effort to determine the general intent of the voters but it fails to provide any justification for altering the meaning to be given “levy” operating in the context of SJR 1, Initiative 44, and RCW 84.52. The majority recites extensively from the pamphlet but fails to show any particular language bearing directly on the meaning of “levy”. Rather, all that can be concluded from a reading of the pamphlet is that the voters intended both SJR 1 and Initiative 44 take effect at the next “levy”. To construe “levy” to refer to the administrative duties of collection and not the legislative act of enacting the levy is arbitrary and without logical explanation.

Rather than surmising a meaning for “levy” from the voters’ pamphlet, we must search its usage in those laws in which it is here to operate (RCW 84.52) and refer to our case law rulings. The majority fails to recognize that Initia*568tive 44 is an amendment to RCW 84.52 and must be understood in that context.

In Carkonen, at 627, we defined the word “levy” as the “exercise of a legislative function, whether state or local, which determines that a tax shall be imposed, and fixes the amount, purpose, and subject of the exaction. 3 T. Cooley, Taxation § 1012, at 2043-44 (4th ed. 1924).” This definition was held applicable when the issue of the case involved the authority to tax. The legislative function definition for “levy” had been previously recognized. Wingate v. Ketner, 8 Wash. 94, 35 P. 591 (1894); New Seattle Chamber of Commerce v. Seattle, 88 Wash. 620, 623, 153 P. 351 (1915); Hillier v. PUD 3, 188 Wash. 602, 608, 63 P.2d 392 (1936).

Our analysis in Carkonen is controlling here because the use of “levy” within the texts of laws establishing millage limitation, as well as its use in RCW 84.52, refers to the taxation authority and its limits. Yet, the majority summarily rejects Carkonen without any explanation whatsoever. This rejection is especially unfounded and erroneous after reviewing RCW 84.52.

RCW 84.52 is titled Levy of Taxes and sets forth the rules and procedures by which the legislative function of enacting tax levies is to be undertaken. This chapter is to be compared to RCW 84.56, which is titled Collection of Taxes and sets forth the duties of the administration of tax levies by assessors and other administrators. Millage limitations of tax levies (SJR 1) are referred to and operate in RCW 84.52, and Initiative 44 amends this chapter.

The definition section for RCW 84.52 defines “regular property tax levy” as being made “by or for a taxing district” whose levy is subject to the mill limitation. RCW 84.04.140. A “taxing district” includes “the state and any county, city, town . . . having the power or authorized by law to impose burdens upon property . . . for the purpose of obtaining revenue . . .” RCW 84.04.120. Thus, the “regular property tax levy” is imposed by a taxing district such as King County in its legislative authority.

*569A reading of the provisions in RCW 84.52 for references to the council and assessor, compels the conclusion of legislative usage of “levy” in this case.

RCW 84.52.010 opens the chapter with the statement “taxes shall be levied or voted” whereas it states the assessor is to determine, calculate and fix the rate percent in accordance with the “levy” previously voted by the legislative body. RCW 84.52.030 establishes the time a levy is to be made and places date limits for such enactment on “the board of county commissioners of each county . . . and all other officials or boards authorized by law to levy taxes . . .” Again, the legislative function meaning of “levy” is clear in this context and it is in this context we must deal. RCW 84.52.050 places millage limitations on “all tax levies . . . by . . . taxing districts . . .”

RCW 84.52.070 and .080 further reveal the respective aspects of the “levying process”, and that “levy” in this case means the legislative aspect. Section .070 places a duty on “the, board of county commissioners ... of city councils . . . and of all officials or boards of taxing districts ... to certify to the county assessor . . . the amount of taxes levied . . .” Section .080, on the other hand, establishes the form by which the assessor “shall extend the taxes upon the tax rolls” in a manner “to raise the amounts of taxes levied . . .”

The majority avoids any analysis of this context in which “levy” is to operate and fails to explain why it refuses to employ Carkonen or review RCW 84.52. Rather than exercise this basic step in providing an accurate meaning to “levy” as used, the majority decides to elicit a meaning for the word from the general language of the voters’ pamphlet, and begins its review without demonstrating any ambiguity of the word “levy” as used here.

The keystone of the majority opinion is its definition of the term “levy”. Inasmuch as this is incorrect, the rest of their opinion which is premised on their definition of levy is also incorrect.

The assessor’s levy duties occurred here after the alleged *570effective dates of SJR 1 and Initiative 44. The effective dates of SJR 1 and Initiative 44 are both December 7, 1972 and not on election day, November 7,1972.

All parties agree Initiative 44 is effective December 7, 1972 because Const, art. 2, § 1 (d) (amendment 7) provides such initiative measures shall be operative on the thirtieth day after the election of its approval. That date is December 7, 1972, the date of the Governor’s proclamation and the Secretary of State’s canvass.

The effective date of the constitutional amendment, SJR 1, is governed by Const, art. 23, § 1 (amendment 37) which provides in part:

and if the people approve and ratify such 'amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor

(Italics mine.) No effective date is set forth in amendment 37 for constitutional amendments, unlike the provisions of amendment 7, relating to initiatives.

This omission, however, does not defeat the strong inference to be drawn from the provision references to the-necessity for a majority approval and a Governor’s proclamation. That inference, I believe, is that a constitutional amendment is only effective after an accurate and lawful determination that the voters did indeed approve the-amendment. The legislature has specified a process by which such a validation is to occur. In RCW 29.62.130 it states the Secretary of State must “within thirty days after any such election” canvass the votes and certify the results to the Governor “and the governor shall forthwith issue his; proclamation . . . declaring the result . . .”

State ex rel. Wash. State Sportsmen’s Council, Inc. v. Coe, 49 Wn.2d 849, 851, 307 P.2d 279 (1957), where we stated the thirtieth amendment to our constitution became effective on the date of the Governor’s proclamation of voter approval, supports this conclusion.

The Governor does not have the power to defeat the *571declared and certified will of the people by failing to proclaim the result as required by statute and the constitution. Rather, the effective date of an amendment must be measured by the date of that proclamation, when it is exercised in accordance with the law and dependent upon the canvass and certification of the people’s vote. To hold otherwise would ignore the canvassing process required by statute and would violate a cardinal rule of constitutional construction, as stated in Const, art. 1, § 29: “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” State ex rel. Smith v. Neal, 25 Wash. 264, 265, 65 P. 188 (1901); State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 97, 273 P.2d 464 (1954); State ex rel. Toll Bridge Authority v. Yelle, 61 Wn.2d 28, 65, 377 P.2d 466 (1962) (Donworth, J., dissenting).

SJR 1 became part of our constitution upon the date the official canvass of the returns certified that it had been approved. It is this date amendment 37 requires by its reference to the Governor’s proclamation which must follow the statutory certification. In this case, that date would be December 7, 1972, as there is no constitutional or statutory instruction to relate the amendment’s effectiveness hack to the date of the election.

Although SJR 1 and Initiative 44 are not applicable to the King County levy ordinances of this case, in my opinion, the validity of Initiative 44 is consequential as it affects the validity of sections 24 and 25 of chapter 299, Laws of 1971. I agree with the majority’s conclusion that the trial court erred in declaring both invalid because of the legislature’s failure to submit section 24 to the voters with Initiative 44 as required by Const, art. 2, § 1 (a) (amendment 7). However, I strongly object to the majority’s summary and unsupported conclusion that the “millage allocation of section 24” is rescued by the comprehensive severance clause of chapter 299 in such a fashion as to provide for the allocation set forth in the opinion.

Section 24 provides millage allocation for 1970, 1971, 1972, 1973, and subsequent years, and does so with exten*572sive provisos. Yet, the majority fails to explain what millage allocation of this section, and section 25, provides the particular allocation it sets forth. If Initiative 44 with its; 20-mill limit amends section 24, how can the majority conclude section 24 produces a 21-mill allocation?

It is a disservice to the majority’s own conclusion to fail to explain how the allocation was derived from section 24.. The mathematical variations within section 24 place the majority result, absent explanation, in a zone of arbitrary legislating, undeserving of our decision making, with no> guide to the future cases on this subject as to how this result was reached.

Assuming the majority’s summary allocation of 21 mills is accurate, the King County Council levy ordinances contain an excess of 1 mill. The majority relies upon RCW 84.52.010 as the means of cutting that mill, which they interpret as instructing the assessor to reduce any excess in a uniform percentage.

I disagree with this method of cutting any excess millage of the legislative enactment for I fail to see how RCW 84.52.010 authorizes such a procedure. This statutory provision only permits the assessor to “recompute and establish a consolidated levy” where the “aggregate rate of levy on any property will exceed the limitation . . .” (Italics mine.) The “rate of levy” refers to the rate percent calculated and fixed by the assessor upon the assessed valuation of the county property and does not refer to any excess in the legislative levy. In cases where the legislative enactment violates constitutional or statutory limitations, it must be struck down in toto. To permit an assessor to modify ordinances violates our separation of powers and our understanding of the duties set out for the assessor (RCW 84.56) as compared to those established for the taxing authorities (RCW 84.52).

Thus, it is consistent with the whole taxing process presented in RCW 84.52 and 84.56 to permit the assessor to recompute where his or her rate percentages aggregately exceed the limitations of law. However, to permit such cut*573ting where the excesses are those of the legislature, cannot be supported by RCW 84.52.010 or any other statutory authorization brought to this court’s attention. The majority rejects this method of dealing with legislative excesses by merely alleging it “would complicate [affairs] further.”

I would reverse the trial court as I find the pertinent county ordinances enacted and effective prior to the effective dates of SJR 1 and Initiative 44, and violative of no millage limitations. The majority only achieves its conclusion of a 20-mill limitation by rejecting the unambiguous meaning of the word “levy” in its use here for one which creates great confusion, not only now but for the future, in our tax scheme; by magically producing a 21-mill allocation from section 24 without explanation; and, by permitting the administrative rewriting of legislation in order to shape a levy to new millage limits. I would grant the state its writ of prohibition.

Hunter and Hamilton, JJ., concur with Utter, J.

Petition for rehearing denied August 31, 1973.

Furthermore, despite the references to the numerous meanings for “levy”, the cases cited in most instances concluded the legislative function meaning for “levy” was necessary in the context of these cases.