State Ex Rel. Hart v. Gleeson , 189 Wash. 292 ( 1937 )

I am constrained to dissent from the majority opinion.

The statutory mandate for payment by the counties of pensions to blind persons is conditioned and limited by the terms of chapter 102, Laws of 1933, p. 420, § 9, as amended by chapter 106, Laws of 1935, p. 262, § 7, reading:

"In addition to the other tax levies by such county, the board of county commissioners shall also levy a tax of one-fifth of one mill on each dollar of assessed value of the property of the county, to be levied and collected in the same manner provided for the assessment and collection of other taxes for the purpose of creating a fund for the relief of blind in the respective counties." Rem. Rev. Stat. (Sup.), § 10007-9 [P.C. § 1702-29].

In this case, Grays Harbor county levied slightly in excess of the one-fifth of one mill required by the statute. As § 9 read before amendment, it required the county commissioners to levy a tax

". . . not exceeding one-fifth of one mill on each one dollar of assessed value of the property of the county, . . . for the purpose of creating a fund for the relief of indigent blind in the respective counties." Laws of 1933, p. 420, § 9.

Taking advantage of this permissive language, some counties had levied only nominal sums for the blind pensions, pleading lack of funds when demands were made upon them by beneficiaries of the act. Such was the case in State ex rel. Robbins v. Scofield, 184 Wn. 270,50 P.2d 1022, cited in the majority opinion.

With the evident purpose of correcting this condition, the 1935 legislature made the levy of the full one-fifth of one mill mandatory. The fixed millage required by the 1935 act should, I think, be regarded as a finding by the legislature of the amount required, in its judgment, to meet the mandatory duty imposed upon the counties. It could be argued with much force that the definite specification of the levy negatived any power in the counties to make a higher levy for the purpose. But even if the statute is construed as permitting a levy in excess of the one-fifth of one mill, the excess levy is optional and not mandatory.