American Legion Post No. 32 v. City of Walla Walla

• Decision Date: 03 January 1991
• Docket Number: No. 57364-6,57364-6
• Citation: 116 Wn.2d 1,802 P.2d 784
• Parties: AMERICAN LEGION POST # 32, a/k/a Walter C. Lee, Post # 32, Appellant, v. CITY OF WALLA WALLA, Respondent. En Banc
• Court: Washington Supreme Court

Page 1

116 Wn.2d 1

802 P.2d 784

AMERICAN LEGION POST # 32, a/k/a Walter C. Lee, Post # 32, Appellant, v. CITY OF WALLA WALLA, Respondent.

No. 57364-6.

Supreme Court of Washington,

En Banc.

Jan. 3, 1991.

Velikanje, Moore & Shore, P.S., Carter L. Fjeld, Yakima, for appellant.

Reese, Baffney, Schrag, Siegel & Hedine, P.S., Thomas K. Baffney, Walla Walla, for respondent.

GUY, Justice.

Respondent taxes gambling within the city of Walla Walla. Appellant was assessed penalties and interest for failure to pay delinquent gambling taxes. It challenges the past and continuous collection of these taxes, the penalties, and the interest as illegal and unconstitutional.

FACTS

Since 1975, respondent City of Walla Walla has imposed a gambling tax pursuant to Chapter 3.82 of the Walla Walla Municipal Code (WWMC). The authority for this tax is derived from the gambling act, RCW 9.46.

Appellant American Legion Post # 32 (Legion) offers bingo, punchboards and pulltabs on its premises. It has been taxed for these activities since 1982. Pursuant to RCW 9.46.110, bingo is taxed at a rate of 10 percent andpunchboards and pulltabs at a rate of 5 percent. These taxes are computed on a quarterly basis. WWMC 3.82.030. Legion has been delinquent since the fourth quarter of 1985 and its debt for taxes, penalties and interest totals $49,726.77.

RCW 9.46.113 requires that gambling tax be used primarily for the enforcement of the gambling act. All gambling revenue is placed in Walla Walla's general fund. No line item in the budget is specifically dedicated to the enforcement of gambling. Walla Walla concedes there is no way to trace the actual expenditure of the gambling tax. However, it contends that the general police budget allows for such expenditure and the subsequent enforcement of the act. The total police budget for 1988 was $1,927,600. The gambling tax was approximately $51,000. These figures more or less represent the budget and taxes for the years 1985-87.

Walla Walla appears to have a low incidence of gambling-related offenses, which it attributes to its general police presence in the community. In June 1981, police investigated a report of illegal gambling in connection with a golf tournament. Two other reports were investigated, one in 1983 at the Eagles Club, and one in 1984 at the V.F.W. Post. The V.F.W. incident was investigated principally by state officials.

In 1985, Walla Walla police responded to 619 calls for assistance at establishments serving alcohol. Of these establishments, 236 had licensed gambling facilities. In 1986, police responded to 485 calls at establishments serving alcohol, of which 109 had licensed gambling facilities. In 1987, police handled 556 calls for assistance at establishments serving alcohol, of which 203 had licensed gambling facilities.

All officers receive instruction in basic gambling investigative techniques while attending the State-run Police Training Academy. Walla Walla pays for the officers' salaries while they attend. Officers also receive some ongoinggambling-related training. In September 1982, officers participated in approximately 28 hours of vice investigative training which included instruction on illegal gambling.

On February 12, 1988, Legion initiated an action against Walla Walla seeking, among other things, to have the gambling tax, penalties and interest declared illegal and unconstitutional. The trial court heard motions for summary judgment brought by both parties. The court denied Legion's motion and granted Walla Walla's motion, ruling that the gambling tax, penalties and interest were constitutional.

On July 11, 1990, the Court of Appeals certified the following question to this court:

Whether this suit to enjoin the City of Walla Walla from imposing a gambling tax and to recover gambling taxes previously paid because allegedly the City is not using the monies collected "primarily" for enforcement of the Gambling Act pursuant to RCW 9.46.113, should first be referred to the Gambling Commission for its interpretation of the statute pursuant to the Doctrine of Primary Jurisdiction.

This court accepted certification. We answer the question in the negative and affirm the trial court on all issues.

ANALYSIS

Doctrine of Primary Jurisdiction

Both parties argue against applying the doctrine of primary jurisdiction to this case.

We agree. Interpretation of a statute is solely a question of law and within the conventional competence of the court. State ex rel. Graham v. Northshore Sch. Dist. 417, 99 Wash.2d 232, 242, 662 P.2d 38 (1983). Where the only question is the interpretation of a statute, resort to the administrative agency is unnecessary since it has no special competence over the controversy. Northshore, at 242, 662 P.2d 38. This conclusion reflects a well recognized exception to the doctrine of primary jurisdiction. Northshore, at 242, 662 P.2d 38 (citing Great N. Ry. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943 (1922)).

At issue is interpretation of "primarily" as used in RCW 9.46.113. Neither party advocates attributing to the term something other than its usual and ordinary meaning. Such explication is within the competence of this court and does not require deference to a specialized administrative body. Northshore, 99 Wash.2d, at 242, 662 P.2d 38.

It should be noted that Jaramillo v. Morris, 50 Wash.App. 822, 750 P.2d 1301, review denied, 110 Wash.2d 1040 (1988) appears to contradict our holding in this case. However, Jaramillo is readily distinguishable and may be harmonized with Legion's case. In Jaramillo, we sanctioned the referral of the interpretation of the term "foot" as it was used in a medical statute to the Washington State Podiatry Board. In that case, a podiatrist had negligently performed surgery on the plaintiff's ankle. One of the issues to be resolved involved whether the podiatrist had exceeded the scope of his podiatry license by operating on an ankle. RCW 18.22.010, which authorizes the practice of podiatry, limits the practice to the human foot.

In medical parlance, the ankle joint is considered a functional component of the foot. Thus, treating ailments of the foot might necessarily require surgery on the ankle joint. Because this entailed attributing a special medical interpretation to "foot", the case was properly referred to the expertise of the Podiatry Board. By contrast, neither party in this case advocates ascribing something other than the usual and ordinary meaning to "primarily."

Constitutionality of Tax

Legion argues that Walla Walla is not utilizing the gambling tax primarily for the enforcement of the gambling act as required by RCW 9.46.113. ¹ Tax not used for that purpose allegedly constitutes additional tax, which Legion contends exceeds the statutory authority of RCW 9.46.113 and renders the gambling tax illegal and unconstitutional.

We disagree. There is no authority, nor does Legion provide any, that renders an otherwise constitutionally levied tax unconstitutional merely because it is purportedly utilized for a purpose other than what is required. In the absence of argument and citation to authority, an issue raised on appeal will not be considered. Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 29, 593 P.2d 156 (1979). Legion concedes the constitutionality of RCW 9.46.113, which authorizes the tax, and RCW 9.46.110, ² which determines the maximum tax that may be imposed. It advances no argument that Walla Walla's tax exceeds the statutorily authorized percentage. We fail to see where Legion has raised a cognizable constitutional issue. We find its argument encompasses nothing more than a challenge to Walla Walla's allocation of the gambling tax.

The mere fact that a taxpayer disagrees with a discretionary decision of the city provides no basis for a suit challenging that decision. In re Bellingham, 52 Wash.2d 497, 499, 326 P.2d 741 (1958). In order to maintain an action, the taxpayer must show that he or she has a unique right or interest that is being violated, in a manner special and different from the rights of other taxpayers. Cf. Calvary Bible Presbyterian Church v. Board of Regents of the Univ. of Wash., 72 Wash.2d 912, 916-17, 436 P.2d 189 (1967), cert. denied, 393 U.S. 960, 89 S.Ct. 389, 21 L.Ed.2d 372 (1968) (challenge to the constitutionality of a statute). Without showing that the action complained of interferes with such legal rights or privileges, there is no standing to challenge the action. Cf. Bolser v. Washington State Liquor Control Bd., 90 Wash.2d 223, 226, 580 P.2d 629 (1978) (challenging the validity of a Liquor Control Board regulation).

Legion provides no argument demonstrating it has a unique legal right or privilege different from other taxpayers that was violated by Walla Walla's levy and subsequent use of the gambling tax. Therefore, we hold it has no standing to challenge either the constitutionality or the allocation of the tax.

Because there is an apparent ambiguity that surrounds the meaning of "primarily", we are compelled to provide an interpretation for future reference. For the same reason, we choose to define "enforcement" as well.

In construing statutes, the primary objective is to carry out the intent of the Legislature. In re Estate of Little, 106 Wash.2d 269, 283, 721 P.2d 950 (1986). In so doing, legislative definitions provided in the statutes generally control. Seattle v. Shepherd, 93 Wash.2d 861, 866, 613 P.2d 1158 (1980). In the absence of a legislative definition, courts may resort to the applicable dictionary definition to determine a word's plain and ordinary meaning unless a contrary intent within the statute appears. Northshore, 99 Wash.2d at 244, 662 P.2d 38 (citing Intermediate Sch. Dist. 105 v. Yakima Cy., 81 Wash.2d 443, 445, 503 P.2d 104 (1972)); see also In re Estate of Little, 106 Wash.2d at 283, 721 P.2d 950.

No statutory definition of "primarily" exists in the gambling act; therefore, ...