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AGO 1950 No. 218 - February 14, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

SCHOOLS -- SCHOOLHOUSES AND SITES

1. A vote of the electors is required to authorize construction of a schoolhouse by the board of directors.

2. A majority of the legal school electors who vote on a proposition authorizing the construction of a school building is sufficient approval without requiring a majority of the eligible or registered electors of the district.

3. A schoolhouse site selected by a majority vote at a special meeting may not be changed except by a two-thirds vote of such electors.

4. Propositions authorizing bond issues for the purpose of constructing new school buildings and the selection of a particular site to be purchased is not sufficient direction to authorize construction of the school buildings on such a site.

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                                                                February 14, 1950

Honorable James Munro
Prosecuting Attorney
Kitsap County
Port Orchard, Washington                                                                                                              Cite as:  AGO 49-51 No. 218

Dear Sir:

            We acknowledge receipt of your letter dated January 17, 1950, in which you ask the following questions: (1) Whether a vote of the electors of a school district of the second class is required to authorize construction of a school building by the board of directors; (2) whether a majority of the qualified electors of a school district of the second class must vote in order to pass a proposition authorizing such construction; (3) whether a school site selected by majority vote at a special meeting called for that purpose, may be changed without a two-thirds vote; (4) whether propositions approvided [[approved]]by a vote of the electors, authorizing bond issues for the stated purpose of purchasing land for school sites and constructing new school buildings, plus the selection by a majority vote of a particular site to be purchased at a special meeting of the electors with the subsequent purchase thereof by the directors, is sufficient direction to authorize construction of a school building on such site without additional approval by the electors in a subsequent election specifically authorizing construction on such site.

            Our conclusions may be summarized as follows: (1) A vote of the electors is required to authorize construction of a schoolhouse by the board of directors. (2) A majority of the legal school electors who vote on a proposition authorizing the construction of a school building is sufficient approval without requiring a majority of the eligible or registered electors of the district.  (3) A school house site selected by a majority vote at a special meeting may not be changed except by a two-thirds vote of such electors.  (4) Propositions authorizing bond issues for the purpose of constructing new school buildings and the selection of a particular site to be  [[Orig. Op. Page 2]] purchased is not sufficient direction to authorize construction of the school buildings on such a site.

                                                                     ANALYSIS

            Rem. Rev. Stat. 4819 provides in part: "The board shall build * * * schoolhouses * * * when directed by a vote of the district to do so."  Since school districts and their boards of directors have only such powers as are specified by statute, the qualification in the statute cited above is a mandatory one and a vote of the district electors is necessary.

            Rem. Rev. Stat. 5028 reads in part: "Any board of directors may, at its discretion and shall, upon a petition of a majority of the legal voters of their district, call a special meeting of the voters of the district * * * to determine whether or not the district shall purchase any school-house site or sites, and to determine the location thereof; or to determine whether or not the district shall build one or more school-houses * * *

            Rem. Rev. Stat. 5029 sets out the voting procedure and provisions for notice, while Rem. Rev. Stat. 5030 requires the board of directors to carry out the directions of the electors as expressed at such meetings.  There is no requirement that a majority of the legal school electors must vote on any proposition to be decided.  We, therefore, remain in accord with the conclusion expressed in an opinion of April 11, 1917, to the Prosecuting Attorney of Whitman County that:

            "The words 'when directed by a vote of the district to do so' as used in the foregoing section of the statute, in our opinion mean a majority vote of the legal school electors voting upon the proposition of purchasing the particular site and do not require a majority of all of the votes cast on all propositions at the particular election (State ex. rel. Short v. Clausen, 72 Wash. 409.)"

            Rem. Rev. Stat. 4819 further provides "nor shall a schoolhouse site that has been selected by a majority vote of the legal electors, but upon which no schoolhouse has been built, be changed except by a two-thirds vote of the legal school electors voting at an annual or special election as hereinbefore provided."  The answer to your third inquiry depends initially on whether a change  [[Orig. Op. Page 3]] of site was intended.  On December 3, 1949, a special election was held on the following proposition: "Shall property herein described located one half mile west of George's Corner be approved as the site of an elementary school to serve the North end of the North Kitsap School District, said site to be used instead of the site in the vicinity of Kingston hereto approved at a special meeting of the voters of the school district held on the 24th day of January, 1947."  (Description omitted) At this election 951 votes were cast in favor of the proposition and 641 against.  If the property to be acquired were merely an addition to the existing school property, a simple majority would be sufficient to authorize its acquisition.  However, the language of the proposition that said site was intended to be used "instead of the site in the vicinity of Kingston," clearly indicates a change of site.  Moreover, we are convinced that the electors understood the proposition voted on in December, 1949, to call for change of site rather than an addition to the existing property, and for these reasons a two-thirds majority was required.

            The other material question to be answered in regard to your third inquiry is whether the selection of a school site at a special meeting amounts to a "majority vote of the legal school electors" so as to require a two-thirds vote to change such site.  In the present situation a special meeting was held on January 24, 1947, pursuant to Rem. Rev. Stat. 5028 for the purpose of purchasing certain property, which we will hereafter refer to as the Kingston site, for school purposes.  At this special meeting, 177 votes were cast in favor of the purchase and 67 against.  At the time this meeting was held, there were approximately 4,270 qualified electors, out of which number 244 voted.  We note from the minutes that some objection was made as to the legality of the notice of this meeting, but you have advised us to assume for the purposes of this opinion "that this was a valid meeting and a regular election."  Accordingly, in this opinion we are proceeding upon the assumption that the special meeting of January 24, 1947, was proper and legal in all respects.

            InMetcalf v. Seattle, 1 Wash. 297, our court cites with approval the general rule found in McCrary on Elections, 3rd Ed., sec. 173, "Where a statute requires a question to be considered * * * by the votes of the 'majority of the voters of the county' this does not require that a majority of all persons in the county, entitled to vote, shall actually vote affirmatively but only that the result shall be decided by a majority of the votes."

             [[Orig. Op. Page 4]]

            InState ex rel. Blankinship v. Gaines, 136 Wash. 610, the court held that Remington's Compiled Statutes, section 8919, provided for the dissolution of the town only if the vote in favor of such dissolution be a majority of the voters registered and not merely a majority of the votes cast.  The court felt that the use of the word "registered" evidenced a legislative intent that a community would not lightly cast aside local self-government in the form of a municipal corporation.

            McQuillen on Municipal Corporations (3rd ed.) at page 114 of Volume 3, finds the majority rule to be that:

            "Unless the law provides otherwise, either in express terms or by necessary implication, the preponderance of judicial decisions holds that, if the officer or proposition receives the required number of legal votes cast at the particular election (whether a majority, two-thirds, three fourths or any other named proportion), the officer will be declared legally elected or the proposition duly carried, without regard to the total number of qualified voters of the electorate."

            We are not concerned here with what is the proper basis for computing a majority necessary to pass a proposition, except insofar as such a basis is helpful in determining the meaning of "a majority vote of the legal school electors" under Rem. Rev. Stat. 4819.  We may say in general that the rules set out in the Metcalf case,supra, and in McQuillen, supra, obtains.  Our court has not found it necessary to determine the meaning of "legal school electors" under Rem. Rev. Stat. 4819, but inFoy v. Gardiner Water District, 98 Me. 82, 56 A. 201, [[56 Atl. 201]]a proposition that an action should take effect "when approved by a majority vote of the legal voters within said district" was interpreted to mean a majority of the legal voters actually voting.

            For these reasons, we hold that a school site which has been selected by a majority vote of the district electors voting at a special meeting may not be changed without a two-thirds vote at an annual or special election.

            Finally, you inquire as to whether the directors were given authority to build on the Kingston site by virtue of the circumstances outlined in your letter.  On March 2, 1946, an election was held on the proposition of whether the  [[Orig. Op. Page 5]] district should issue bonds for the purpose of purchasing land for school sites and constructing and equipping two new elementary school buildings.  The second proposition in that election was whether the district should make a tax levy of thirteen mills in excess of the ten-mill levy for the purpose of "providing funds to be used in purchasing school sites and in constructing and equipping two new elementary school buildings."  These propositions were approved by votes of 1,280 to 176 and 1,266 to 202. On January 24, 1947, a special district meeting was held to determine whether or not to purchase said described school property.  As mentioned above, the vote was 177 to 67 in favor of purchasing said property.  Pursuant to the directions of that meeting, the directors purchased the property on March 26, 1947.  On November 2, 1948, another proposition to determine whether bonds should be issued and the proceeds used "to pay the cost of constructing and equipping two new elementary school buildings" repairing other schools and purchasing additional land for school sites, was approved by a vote of 2,922 against 957.

            Rem. Rev. Stat. 4819 authorizes construction of schoolhouses by the board of directors when such board is "directed by a vote of the district to do so."  Rem. Rev. Stat. 5028 provides for special meetings of the district voters to select and purchase schoolhouse sites and to build schoolhouses.  Considering these statutes together, we do not believe that selection of a site and authorizing its purchase includes authority to build on such site.  The power to purchase a site and the power to construct a building thereon are separate and distinct.  Since the only question proposed to the voters at the special meeting was whether or not to purchase certain described property, no authority to build was granted at such meeting.

            Nor do the elections of March, 1946, and November, 1948, authorize construction.  In an opinion of July 21, 1889, to the Superintendent of Public Instruction, this office held that a proposition authorizing a special levy for the purpose, among others, of constructing new school buildings was not sufficient to permit such construction.  We see no reason for overruling that opinion.

            While the directors of school districts have some discretion in carrying out district affairs, construction of a school building on a particular site is not within that discretion.  We hold, therefore, that while the  [[Orig. Op. Page 6]] Kingston site has been validly selected and purchased, assuming, of course, the meeting and election were legal, the directors are not authorized to begin construction on that site without formal approval by majority vote of the electors.

Yours very truly,

SMITH TROY
Attorney General

LAWRENCE K. McDONNELL
Assistant Attorney General

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