Weyerhaeuser Timber Co. v. Roessler

¹ Reported in 97 P.2d 1070. This action was instituted by the plaintiff, Weyerhaeuser Timber Company, owner of real and personal property in Pacific county, to enjoin the assessor of that county from extending upon the tax rolls the tax levy made by the board of county commissioners for the year 1940. After institution of the action, the county commissioners intervened. The trial resulted in a denial of the injunction and a decree dismissing the action. The plaintiff appeals.

While the complaint prayed for an injunction against the levy as a whole, the controversy here involves only the levy made for the current expense fund, being 5.63 mills. The remainder of the ten-mill levy permitted to counties by the forty-mill law was levied for specific purposes made mandatory by statute. The budgeted expenditures payable out of the current expense fund for the year 1940 amount to $110,051.39. These authorized expenditures were to be met by budgeted resources as follows: Revenue from sources other than taxation, $36,000; to be raised by the 5.63 mill levy for the current expense fund, $55,037.49; and $19,013.90 to be transferred from a cash balance of $65,286.95, then in the current expense fund. After deducting the latter amount, there would remain in the current expense fund, $46,273.05, and it is conceded that this sum would be in the fund January 1, 1940.

It appears from an exhibit in the record that, in arriving at the cash balance in the fund, all outstanding warrants chargeable against it were deducted. At the time the budget was made, there was in existence in the county treasury a sinking fund created for the retirement of an issue of road bonds. It is admitted that there was in this fund, at the time of the levy, $41,279 in cash, while there were outstanding, chargeable to the fund, bonds in the sum of $9,000 only, and these were payable July 1, 1940.

It is the appellant's contention that the whole of the cash balance in the current expense fund, together with the sum of $32,279 in the bond fund, in excess of its requirements, should have been used by the county commissioners in balancing the budget for the year 1940, thereby obviating the necessity for making any tax levy for the current expense fund.

The respondents, on the other hand, contend that the county was faced, sometime in the future, with the necessity of meeting some heavy expenditures that would require the use of the surplus in the current expense fund, such as the cruising of large tracts of timber lands of the county for determining their value for taxation purposes and the making of extensive repairs to the courthouse. There was also a possibility that the county might be called upon to meet a contingent claim made by the state for the care of indigent insane. None of these expenditures, however, was budgeted as expenditures contemplated in the year 1940. In reference to the balance in the bond fund, the county contends that this was not an available surplus because of a statutory limitation on the use of the fund, to which we shall hereafter refer.

[1] While the power to levy taxes is an inherent attribute of sovereignty, there is implicit in the constitutions of all free governments the limitation that the property of the citizen may be taken from him under the guise of taxation only to meet definite public needs. This general principle finds concrete expression in Art. VII, § 1, of our own state constitution:

"The legislature shall provide by law for an annual tax sufficient, with other sources of revenue, to defray the estimated ordinary expenses of the state for each fiscal year. And for the purpose of paying the state debt, if there be any, the legislature shall provide for levying a tax annually, sufficient to pay the annual interest and principal of such debt within twenty years from the final passage of the law creating the debt."

[2] Unlike the sovereign state, counties and other municipal subdivisions possess no inherent power of taxation. The constitution itself does not grant them the taxing power, but, by Art. VII, § 9, the legislature is authorized to vest them with this power; "For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes. . ."

[3] It is seen that this broad delegation of power to the legislature is circumscribed by the limitation that the taxes to be levied must be for "corporate purposes," and this implies, of necessity, that the corporate purposes for which the levy is made must be, in some manner, definitely expressed. But the legislature, in authorizing the subordinate taxing districts to levy taxes, has seen fit to hedge the power about with other restrictions calculated to protect the taxpayer against abuse of the power by unnecessary or excessive ex-actions.

[4] The county budget law, Laws of 1923, chapter 164, p. 523 (Rem. Rev. Stat., §§ 3997-1 to 3997-10 [P.C. §§ 1652-1 to 1652-10], inclusive), outlines the conditions under which the counties may levy taxes and is an express limitation upon the power vested in them. The budget process provides for submission to the county auditor of statements by the several offices and departments of the county government showing detailed itemized estimates, both of the probable revenues from sources other than taxation and of all expenditures required for the ensuing fiscal year. On receipt of these estimates, the auditor is to prepare the preliminary county budget, setting forth the complete financial program of the county for the ensuing fiscal year, showing the expenditure program and the sources of revenue by which the program is to be financed.

The revenue section of the budget to be prepared by the auditor is to set forth, among other things, "the estimated surplus at the close of the current fiscal year and the amount proposed to be raised by taxation." (Rem. Rev. Stat., § 3997-2 [P.C. § 1652-2].) The budget so prepared is submitted to the county commissioners, who are required to consider it in detail, making such additions or revisions as they may deem advisable, after which notice is published of the day on which the commissioners will meet for the purpose of fixing the final budget and making the tax levy. At the conclusion of this final hearing, and after they have determined each item of the budget separately and entered the same in detail in the official minutes of the board,

"The county commissioners shall then fix the amount of the levies necessary to raise the amount of the estimated expenditures as finally determined, less the total of the estimated revenues from sources other than taxation includingavailable surplus and such expenditures as are to be met from bond or warrant issues. . . ." (Italics ours.) (Rem. Rev. Stat., § 3997-4 [P.C. § 1652-4].)

We take the fair import of the budget law to be that it does not contemplate the accumulation in the current expense fund of a surplus in excess of the current needs as reflected by budgeted expenditures. We need not go far afield for a definition of the term "available surplus." In the light of the budget plan, its obvious meaning is that any cash surplus remaining in the current expense fund at the beginning of the fiscal year, after payment of all outstanding obligations against the fund, is available.

[5] In reference to the amount in the road-bond fund in excess of nine thousand dollars, the sum required to retire the bonds at their due date, July 1, 1940, we are of the opinion that this also is to be considered as available surplus. The county contends that, since this money was raised for payment of the bond issue, it cannot, under the law, be used for any other purpose.

The pertinent statutory provision in relation to this fund is found in Rem. Rev. Stat., § 5594 [P.C. § 5424], and reads:

"The county commissioners must ascertain and levy annually a tax sufficient to pay the interest on all such bonds whenever the same becomes due. At least five years prior to the maturity of such bonds and thenceforward in each year until their maturity, the county commissioners must ascertain and levy a taxsufficient to accumulate during such series of years a fundequal to the principal sum of all such bonds then remainingoutstanding and unpaid, and the amount of such tax as collected shall be by the county treasurer credited to a special fund for the payment of the principal of such bonds . . . and no part of said fund shall be diverted to any other purpose than the payment of such principal." (Italics ours.)

Thus, it is seen that the county must have levied largely in excess of the requirements of the fund or the mandate of the statute. But assuming that the money in the fund can be used for no purpose other than payment of the bonds, what is to become of the surplus of thirty-two thousand dollars left over? If it cannot be diverted to any other use, it should be returned to the taxpayer from whom it was taken. And this is precisely what the budget law requires to be done with it; it is to be returned to the taxpayer by the process of inclusion in the budget set-up, thereby reducing the current levy upon his property. It cannot be reasonably contended that there is no surplus in the fund until after the whole of the bonds are paid. The surplus was in existence at the time the levy was made and readily ascertainable with certainty.

We do not question the motives of the officials of Pacific county; indeed, it is much to their credit that they have not yielded to the temptation of spending this relatively large accumulated surplus for extravagant or unnecessary purposes. It would redound to the credit of the management of a private corporation that it had accumulated a surplus to meet future contingencies. But we are here considering positive rules which the law-making power has, in its wisdom, imposed on public officials for the protection of the citizen against unnecessary tax levies. It is to be considered also that, apart from the creation of sinking funds to meet outstanding funded obligations, there is no need for the accumulation of a surplus, since the resource of taxation is always available within the limitations fixed by law to meet the current needs of the county. In short, any considerable surplus represents money taken from the taxpayer in advance of its need. The budget plan is that this money is to remain in the taxpayer's pocket, from which it may be withdrawn by the process of taxation, as and when required.

As the trial court stated in announcing its decision, the question of the timeliness of the action brought by the appellant was not pressed below because of the desire of the parties for a decision on the merits; we are not, therefore, passing upon the question here. But the respondents do urge that the appellant is estopped by certain representations made by its agent to the commissioners while the budget and levy were under consideration.

While the appellant was seeking to have a larger portion of the surplus included in the budget as a resource, and might have been satisfied with the inclusion of less than all, we do not conceive that it was thereby estopped from insisting that the commissioners obey the mandatory requirements of the law in the preparation of the budget.

[6] Our conclusion is that, since the revenue from sources other than taxation, added to the available surplus as of January 1, 1940, was more than sufficient to meet all of the budgeted expenditures of the county for the year 1940 payable out of the current expense fund, the commissioners were not authorized to make any levy for that fund. The decree of the lower court is therefore reversed, and the cause is remanded with direction to enjoin the levy for the current expense fund.

STEINERT, JEFFERS, ROBINSON, and SIMPSON, JJ., concur.