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AGO 1955 No. 12 - January 20, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington


 1. Section 1, ch. 299, Laws of 1953, providing that non-high school districts may contribute funds to be used for capital outlay by high school districts is not within the prohibition of Art. VIII, sec. 7, of the constitution which forbids municipal corporations from giving or loaning money or credit.2. Ch. 229, Laws of 1953, does not violate the constitutional prohibition against the delegation of legislative power.3. Ch. 229, Laws of 1953, is not in conflict with Art. IX, sec. 1 of the constitution, which requires the state to make "ample provision for the education of all children residing within its borders. . . ." 4. It is possible that ch. 229, Laws of 1953, does violate the provision of Art.I, sec. 19, of the constitution, which requires that no bill contain more than one subject and that expressed in its title.  If this is true, most of the act will be saved because the offending provision may be severed.

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                                                                 January 20, 1955

 Honorable John J. O'Connell
Prosecuting Attorney
Pierce County
Tacoma, Washington                                                                                                                Cite as:  AGO 55-57 No. 12

 Attention:  !ttJohn A. Petrich
            Civil Deputy

 Dear Sir:

             By letter you have posed the following four questions involving the constitutional validity of chapter 229, Laws of 1953:

             1. "Do the provisions of Chapter 229, Laws of 1953 authorizing the transfer of proceeds of a bond issue and/or excess tax levy by a non-high school district to a high school district to be expended by the latter for capital purposes violate the provisions of Article VIII, Section 7 and/or the 27th Amendment of the Washington State Constitution * * *?"

              [[Orig. Op. Page 2]]

            2. "Although the act sets up certain factors to be considered by the County Committee in Section 2, it appears that the ultimate decision of the County Committee with the subsequent approval of the State Board regarding the plan of participation may be made without any reference to these considerations.  Does the act constitute an unlawful delegation of legislative power to the County Committee and/or State Board in adopting a plan of participation by the nonhigh school district?"

             3. "Section 6 provides that in the event that the non-high school district electors reject the plan of participation that the high school student in that district shall not be permitted to attend high school as provided by RCW 28.58.230.  Does this provision violate Article IX, Section 1 of the Washington State Constitution?"

             4. "Section 7 of the act makes reference to annexation of the non-high school district.  The title of the act apparently makes no reference to annexation.  Does the act violate Article II, Section 19 of the State Constitution which requires that 'no bill shall embrace more than one subject, and that shall be expressed in the title'."

             In our opinion your first three questions must be answered in the negative.

             It is possible that the annexation provision of the act may be invalid by reason of offense to Article II, Section 19 of the state constitution.


             1. Article VIII, Section 7 of the constitution provides that

             "No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, * * *."

              [[Orig. Op. Page 3]]

            Our Supreme Court in the case ofRands v. Clarke County et al., 79 Wash. 152, said in analyzing the meaning of this provision (page 157):

             "* * * the framers had in mind individuals, associations, companies and corporations engaged in purely private enterprises, or enterprises only quasi public, not to enterprises carried on by the corporations whose functions are wholly public, * * *."

             The principle therein recognized has been affirmed inState ex rel. Board of Commissioners v. Clausen, 95 Wash. 214,Foster v. Commissioners of Cowlitz County, 100 Wash. 502.

             There can be no question as to the designation of a school district as a wholly public or municipal corporation.  Maxon v. School District No. 34, 5 Wash. 142, State ex rel. School District v. Grimes, 7 Wash. 270,Lincoln County v. Brock, 37 Wash. 14.

             Amendment 27 to the constitution is not concerned with the transfer and expenditure of funds but with the limits of indebtedness.  Nor would the first promise thereof be violated.  The allocation of the funds here involved is clearly in aid of the non-high school district since, by participating in the capital outlay, the non-high school district will be providing educational facilities and equipment for its own children.  (SeeRand v. Clarke County, supra).

             2. Section 2 of said act provides that in the preparation of said plan the county committee shall give consideration to certain specific conditions which are enumerated and set forth in the act as well as to other factors bearing on the preparation of an equitable plan.  Having formulated the plan it must then submit it, together with the evidence explaining and supporting it, to the state board of education for approval.  Public hearings must be held during the formulation of the plan.

             Upon approval by the state board the matter is submitted to the voters of the affected school district or districts for their acceptance or rejection of the levy of the funds necessary to place the plan in operation.

            The act provides the machinery, the county committee and state board, and  [[Orig. Op. Page 4]] the standards‑-the plan must be equitable, adequate, and satisfactory.  The county committee and the state board are merely entrusted with the administration of the act.

             In the case of Wheeler School District v. Hawley, 18 Wn. (2d) 37, involving statewide reorganization for school districts, the court, in discussing the question of unlawful delegation of legislative power, says, on page 47:

             "Nor do we find any unlawful delegation of legislative power.  The act sets up the machinery and fixes the standards by which the county committee shall be controlled.  It commits no legislative power to them.  It simply entrusts to them the administration of the act.  * * *"

             In the case of Newman v. Schlarb, 184 Wash. 147, the court points out that Article IX, Sections 1 and 2 of the constitution make the provision of uniform educational opportunities a paramount duty of the state.  On page 153 the court says:

             "It is apparent that the legislature, acting in pursuance of the constitutional mandate, saw fit to establish a system which, because of its ramifications, was to be administered through the cooperation of state, country, and school district officers.  It needs no argument to prove that the system must of necessity be operated and conducted in that way.  The state, being engaged in the exercise of a paramount duty, could, of course, select any method that it saw fit in order to discharge that duty.  * * *"  (Emphasis added)

             In the case of State ex rel. Washington Toll Bridge Authority v. Yelle, 195 Wash. 636, the court provides a standard to determine whether or not there has been a delegation of legislative power.  They say on page 643:

             "* * * The legislature manifestly cannot delegate  [[Orig. Op. Page 5]] the power to make purely substantive law,but may delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action dependent, provided it has enunciated a standard by which such an administrative body must beguided.  * * *"  (Emphasis added)

             Since Section 2 of the act has made it mandatory to consider certain facts and has stated the final plan must be equitable and must make both adequate and satisfactory provisions for participation by the non-high school districts, it would appear to meet every requirement of the quoted text.

             3. Article IX, Section 1 of the constitution provides that the state has the duty.

            "to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."

             Your question states that if the voters of the non-high district reject the participation plan the high school students in that district

             "* * * shall not be permitted to attend high school as provided by RCW 28.58.230."

            RCW 28.56.060 (1953 Supp.) [Sec. 6, chapter 229, Laws of 1953] provides in relevant part that:

             "* * * If the vote of the electors of the non-high school district is again in the negative, the high school students residing therein shall not be entitled to admission tothe high school or union high school under the provisions of RCW 28.58.230, following the close of the school year during which the second election is held; * * *" (Emphasis added)

             The language of the latter statute indicates that high school students within  [[Orig. Op. Page 6]] the non-participating [[nonparticipating]]non-high school district would not be permitted to attend the one particular high school to which they had decided not to contribute, as they would otherwise be permitted to do by the terms of RCW 28.58.230.

             Nothing in chapter 229, Laws of 1953, would prevent such students from attending some other high school under the provisions of RCW 28.58.230.  They are not completely deprived of the right to attend a high school.  We conclude that Article IX, Section 1, is not violated by chapter 229, Laws of 1953.

             4. Article II, Section 19 of the state constitution provides that "no bill shall embrace more than one subject, and that expressed in the title."  The title to the act under consideration reads as follows:

             "AN ACT providing for participation by nonhigh school districts in providing capital funds for financing the cost of high school facilities."

            Section 7 of the act provides a procedure for annexation of non-high school districts.

             Since there is no reference to annexation in the title it would appear more probable than not that a court test would result in a holding that the act offends the constitutional provision by reason of a defective title and a dual subject.

             If this analysis is correct there remains the problem of ascertaining the scope of such an anticipated adverse adjudication.  In other words, would the entire act be held void or only the portion of the act which is repugnant to the constitutional provision?

             In Swedish Hospital Etc. v. Dept of Labor & Industries, 26 Wn. (2d) 819 at page 832, the court quoted with approval from 11 Am. Jur. 857, section 162 as follows:

             "In accordance with the general principles governing the severability of statutes already discussed, where the title of the act is insufficient, the rule is that the matters in the body  [[Orig. Op. Page 7]] of the statute not embraced are invalid, but the remainder of the act is not unconstitutional unless the parts are inextricably interwoven in the texture of the statute."

             An examination of chapter 229, Laws of 1953, clearly demonstrates that the offending provisions, namely the last two sentences of section 7 which relate to annexation, can very readily be deleted without affecting the efficacy of the balance of the act.  In our opinion the act probably offends Article II, Section 19 of the state constitution, but the offending provisions are clearly severable.

 Very truly yours,
Attorney General 

Assistant Attorney General

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