Ski Acres, Inc. v. Kittitas County

• Decision Date: 16 April 1992
• Docket Number: No. 57593-2,57593-2
• Citation: 118 Wn.2d 852,827 P.2d 1000
• Parties: SKI ACRES, INC., Respondent, v. KITTITAS COUNTY, Appellant.
• Court: Washington Supreme Court

Page 852

118 Wn.2d 852

827 P.2d 1000

SKI ACRES, INC., Respondent, v. KITTITAS COUNTY, Appellant.

No. 57593-2.

Supreme Court of Washington,

En Banc.

April 16, 1992.

David A. Pitts, Kittitas County Prosecutor, Ellensburg, for appellant.

Carney, Stephenson, Badley, Smith & Spellman, P.S., James E. Lobsenz, Richard J. Padden, Seattle, for respondent.

JOHNSON, Justice.

Kittitas County attempted to tax ski lift fees as "admission charges" pursuant to RCW 36.38.010. Ski Acres, Inc., challenged the County's authority to impose this tax because Ski Acres does not charge an admission fee for entry onto its land. The trial court granted summary judgment in Ski Acres' favor. We affirm the trial court. We hold that RCW 36.38.010 authorizes counties to tax recreational equipment rentals only where such rentals are necessary for the enjoyment of a privilege for which a general admission fee is charged. Because the respondent does not charge a general admission fee for entry onto its lands, the County lacks authority to enforce its ordinance against the respondent.

The facts in this case are not in dispute. In 1989, Kittitas County enacted ordinance 89-6. This ordinance imposes a 5 percent tax to be paid by all persons who pay an admission charge to any place. The ordinance further provides that any person who collects an admission charge must also collect the 5 percent tax, remit the tax to the County in quarterly installments, and maintain records of the amount of taxes collected. A party who violates the ordinance may incur both civil and criminal penalties.

In 1990, Kittitas County amended this ordinance to provide for a specific list of activities or events that would be taxed under ordinance 89-6. This list of taxable activities included fees for riding ski lifts.

Ski Acres operates a ski area in Kittitas County pursuant to a special use permit granted by the United States Forest Service. This permit prohibits Ski Acres from charging an admission fee for entry onto the national forest land where Ski Acres is situated. Ski Acres filed a complaint for declaratory relief against Kittitas County, arguing the County did not have the authority to tax its ski lift tickets.

After both parties filed motions for summary judgment, the trial court granted summary judgment in Ski Acres' favor. The County appeals this ruling.

A court shall grant summary judgment if there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. CR 56(c). The standard of review on appeal of a summary judgment order is de novo, with the reviewing court performing the same inquiry as the trial court. Herron v. Tribune Pub'g Co., 108 Wash.2d 162, 169, 736 P.2d 249 (1987).

Ski Acres presents two arguments why the County cannot tax Ski Acres' ski lifts. First, Ski Acres asserts the County's tax violates article 26 of the Washington State Constitution as a state tax imposed on federal land without the express consent of Congress.

Article 26 of the state constitution provides, in relevant part, that:

[N]o taxes shall be imposed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use....

(Italics ours.) The state constitution was amended in 1946 to allow the state to tax federal property when Congress consents to such taxation. See Const. art. 7, § 3 (amend. 19).

The threshold question is whether the County's tax, as applied in this case, constitutes a tax on federal property. Ski Acres' ski area is situated on federal land. The County's ordinance, however, does not impose a tax on the land itself or on those wanting to enter the land. The ski lifts are the private property of Ski Acres. Ski Acres does not contend the federal government either owns, or may purchase, the ski lifts in question. Nor are the ski lifts reserved for federal use; they are available for public use upon payment of a fee. As such, the County's ordinance does not violate article 26 when applied to the ski lifts in question. Ski Acres has failed to show the ordinance imposes a tax on any federal property.

We now turn to Ski Acres' second argument that the State Legislature did not grant the County the authority to impose an "admission charge" tax on the ski lifts in question. Counties have no inherent power to levy taxes. Weyerhaeuser Timber Co. v. Roessler, 2 Wash.2d 304, 307, 97 P.2d 1070, 126 A.L.R. 882 (1940). The Legislature must expressly grant counties the authority to tax. Hillis Homes, Inc. v. Snohomish Cy., 97 Wash.2d 804, 809, 650 P.2d 193 (1982). RCW 36.38.010 provides, in part, as follows:

Any county may by ordinance enacted by its board of county commissioners, levy and fix a tax of not more than one cent on twenty cents or fraction thereof to be paid for county purposes by persons who pay an admission charge to any place ... and require that one who receives any admission charge to any place shall collect and remit the tax to the county treasurer of the county....

(Italics ours.) This statute defines "admission charge" as including:

a charge made for rental or use of equipment or facilities for purpose of recreation or amusement, and where the rental of the equipment or facilities is necessary to the enjoyment of a privilege for which a general admission is charged, the combined charges shall be considered as the admission charge.

(Italics ours.) The word "and", which is italicized above in the second portion of the statute, is critical to the analysis of this case.

Ski Acres argues the "and" should be read as conveying a conjunctive meaning. Under this reading, two conditions must exist before a recreational equipment rental may be taxed as an "admission charge": the rental must be for the purpose of recreation or amusement, and the rental must be necessary for the enjoyment of a privilege for which a general admission fee is charged.

In contrast, the County essentially argues the "and" should be read like an "or", to convey a disjunctive meaning. The County argues the above portion of the statute provides for two alternative definitions of "admission charge": a charge made for a recreational equipment rental, or the combined charges where there is both an admission fee and an equipment rental fee. As such, the County argues the statute authorizes a tax on the respondent's ski lift tickets because such charges fall within the first definition under RCW 36.38.010: the charges are "made for rental or use of equipment ... for purpose of recreation or amusement...."

We agree with Ski Acres' analysis. The statute contains an "and", not an "or". We thus read the "and" as simply being an "and". The Legislature would have used the word "or" if it had intended to convey a disjunctive meaning. See State v. Carr, 97 Wash.2d 436, 439, 645 P.2d 1098 (1982) (where the lower court erred in reading an "and" in former JCrR 4.10 as conveying a disjunctive meaning); Childers v. Childers, 89 Wash.2d 592, 596, 575 P.2d 201 (1978) (the word "and" does not mean "or"). As such, we hold RCW 36.38.010 requires the existence of two conditions before an equipment rental can be taxed as an "admission fee": (1) the rental must be "for [the] purpose of recreation or amusement ..." AND (2) the rental must be "necessary to the enjoyment of a privilege for which a general admission is charged...." Because Ski Acres does not charge an admission fee for entry onto its land, its ski lift tickets cannot be taxed as "admission charges".

The main object of judicial interpretation is to ascertain and give effect to the Legislature's intent. In re Bale, 63 Wash.2d 83, 86, 385 P.2d 545 (1963). In RCW 36.38.010, the Legislature evidenced an intent to authorize counties to tax "persons who pay an admission charge to any place...." (Italics ours.) Furthermore, this tax is to be collected and remitted to the county treasurer by any individual or organization that "receives any admission charge to any place...." (Italics ours.) Our reading of the statute gives effect to the legislative intent that an equipment rental be tied to a particular place before it can be taxed as an admission fee. A ski lift is not a "place". Rather, it is a mode of transportation for enjoyment of a recreational area.

Moreover, we have adhered to a rule of strict construction in cases involving taxation statutes. In re Estate of Ehler, 53 Wash.2d 679, 681, 335 P.2d 823 (1959). If any doubt exists as to the meaning of a taxation statute, the statute must be construed most strongly against the taxing power and in favor of the taxpayer. Puyallup v. Pacific Northwest Bell Tel. Co., 98 Wash.2d 443, 448, 656 P.2d 1035 (1982); Vita Food Prods., Inc. v. State, 91 Wash.2d 132, 134, 587 P.2d 535 (1978). In Pacific Northwest Bell, the Puyallup City Council authorized a 2 percent increase in its business and occupations tax (B & O tax). The Council's amendments to its B & O tax ordinance, however, were ambiguous and contradictory as to whether the 2 percent increase applied retroactively to revenues earned in 1979, or whether the increase only applied prospectively to revenues earned as of 1980. The court held because the City Council did not clearly indicate its intent to enact the 2 percent increase retroactively as well as prospectively, the statute should be construed as only imposing the increase prospectively. Pacific Northwest Bell, 98 Wash.2d at 452, 656 P.2d 1035.

In this case, RCW 36.38.010 does not clearly indicate an intent to empower counties with the authority to impose an "admission charge" tax on recreational equipment rentals that are not tied to an admission charge to a particular place. Therefore, pursuant to Pacific Northwest Bell, we construe the statute against the taxing power and in favor of the taxpayer. A recreational equipment rental may not be taxed pursuant to the statute unless the rental is necessary for the enjoyment of a privilege for which a general admission fee is...