State ex rel. Longview Fire Fighters Union, Local 828, I.A.F.F. v. City of Longview

• Decision Date: 01 February 1965
• Docket Number: No. 37560,37560
• Citation: 399 P.2d 1,65 Wn.2d 568
• Court: Washington Supreme Court
• Parties: The STATE of Washington, on the Relation of LONGVIEW FIRE FIGHTERS UNION, LOCAL 828, I.A.F.F., a Washington nonprofit organization, and Richard Jones and Veril Griffiths, for and in behalf of themselves and others as a class, Appellant, v. The CITY OF LONGVIEW, a Washington municipal corporation, Mayor Clark Lewis, and the City of Longview, Municipal Council, et al., Respondents.

Page 568

65 Wn.2d 568

399 P.2d 1

The STATE of Washington, on the Relation of LONGVIEW FIRE FIGHTERS UNION, LOCAL 828, I.A.F.F., a Washington nonprofit organization, and Richard Jones and Veril Griffiths, for and in behalf of themselves and others as a class, Appellant, v. The CITY OF LONGVIEW, a Washington municipal corporation Mayor Clark Lewis, and the City of Longview Municipal Council, et al., Respondents.

No. 37560.

Supreme Court of Washington, Department 1.

Feb. 1, 1965.

Wettrick, Toulouse, Lirhus & Hove, Shanks & Litchman, Arnold J. Barer, Seattle, for appellant.

Studley & Purcell, W. R. Studley, Longview, for respondents.

OTT, Judge.

The relators, firemen employed by the city of Longview, sought a writ of mandamus in the superior court to compel the city to levy two mills for the budget year 1964 and place the revenue derived therefrom in its firemen's pension fund. Relators alleged that, unless the fund receives the revenue from a levy of two mills, it will not be actuarially sound under RCW 41.16.060 which provides:

'It shall be the duty of the legislative authority of each municipality, each year as a part of its annual tax levy, to levy and place in the fund a tax of one mill on all the taxable property of such municipality: Provided, That should the estimated amount to be raised by said levy of one mill, together with other estimated income be insufficient to meet the estimated requirements of the fund then there shall be levied such additional tax, not to exceed one mill, as will meet said requirements: Provided further, That this additional levy may be in addition to the city fifteen mill levy limit now provided by law.

'Any city or town may, at any time before the annual budget for the city or town is made, cause an examination of and report on the condition of the firemen's pension fund by an actuary, and if it is established from such examination and report that the condition of the fund and the estimated demands and requirements thereon under this chapter during the ensuing budget year will not require the levy of the mandatory one mill, or if all or any part of the additional one mill levy is unnecessary to meet the estimated demands on the fund under this chapter for the ensuing budget year, the levy of the mandatory or additional one mill may be omitted, or the whole or any part of such millage may be levied and used for any other municipal purpose.'

The trial court held that the statute granted the city of Longview discretionary authority to levy and allocate to the pension fund the additional mill, and that there was no evidence that the city council had been arbitrary or capricious in the exercise of this discretion. The court dismissed the action, and relators appealed.

The appeal presents a single legal issue: In the absence of an actuary report, is the levy of either one or two mills, as provided by the statute, mandatory or discretionary?

The statute provides that there are two separate mills which the city can levy. For the purposes of clarity, we will refer to the first mill provided for in the statute as the mandatory mill, and the second as the additional mill.

The city may cause an actuary report to be made and determine

'* * * from such examination and report that the condition of the fund and the estimated demands and requirements thereon under this chapter during the ensuing budget year Will not require the levy of the mandatory one mill * * *.' (Italics ours.)

Since the city levied and placed in the pension fund for 1964 the mandatory mill, an actuary report was not required.

Relators offered into evidence an actuary report for the year 1961, together with a certified operating report showing the status of the fund for 1962. They also made an offer of proof that their actuary would testify that the fund would be less actuarially sound in 1963 than it was in 1961. The relators contend that the city may not eliminate the levy of the additional mill without an actuary report.

In regard to the additional mill, the legislature has provided that

'* * * if all or any part of the additional one mill levy is unnecessary to meet the estimated demands on the fund under this chapter for the Ensuing budget year, the levy of the mandatory or Additional one mill may be omitted * * *.' (Italics ours.)

The use of the word 'may,'...