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AGO 1953 No. 8 - April 17, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

SCHOOLS ‑- KINDERGARTENS ‑- EFFECT OF TERMINATION OF STATE SUPPORT.

 1. The proviso to Substitute Senate Bill No. 400, terminating state support of kindergartens does not violate Article I, section 23 or Article II, section 19 of the State Constitution.

 2. The effect of the proviso to Substitute Senate Bill No. 400, terminating state support of kindergartens is to prevent school districts from making any funds available for the support of kindergartens.

                                                                  - - - - - - - - - - - - -

                                                                   April 17, 1953

Honorable Julia Butler Hansen
State Representative
Cathlamet, Washington 

Honorable A. L. Rasmussen
State Representative
4031 Pacific Avenue
Tacoma, Washington                                                                                                                  Cite as:  AGO 53-55 No. 8

  Dear Representatives Hansen and Rasmussen:

             We acknowledge your request for our opinion upon certain questions arising out of the proviso to the appropriation item for school districts, set out on page 21 of Substitute Senate Bill No. 400.  The proviso reads as follows:

             "Provided that no portion of this appropriation shall be expended for the cost of establishing or maintaining kindergartens under chapter 28.35 RCW."

             Your questions are as follows:

             (1) Does this proviso violate the provisions of Article I, section 23 of the Washington State Constitution prohibiting the passage of any law impairing the obligations of contracts?

             (2) Does the proviso violate the mandate of Article II, section 19 of the Washington State Constitution which reads as follows:

             "No bill shall embrace more than one subject and that shall be expressed in the title."?

             (3) In view of the proviso, can any moneys of the "general school fund" of a district be used to pay the cost of establishment or maintenance of kindergarten?

             (5) If the local school district may establish or maintain kindergartens under the pertinent statutes, what is its financial responsibility connected therewith?

             (6) Can daily kindergarten attendance be used as a basis for ascertaining attendance credits for school districts for apportionment purposes for next year?

             In our reply of March 20, 1953, we submitted our conclusions without setting forth a complete analysis.  This expedient was resorted to in view of the fact that the legislature was then  [[Orig. Op. Page 2]] in special session and it was contemplated that additional attention might be directed to modification of Substitute Senate Bill No. 400.  By Senate Bill No. 22 passed by the Extraordinary Session the proviso of Senate Bill No. 400 was amended, substantially changing the effect of the proviso of Senate Bill No. 400 on kindergartens.  Accordingly, the following conclusions (which we have previously forwarded to you) referring to Senate Bill No. 400, are repeated with notations as to the effect of Senate Bill No. 22:

             (1) The quoted proviso does not violate Article I, section 23, of the Washington State Constitution.

             (2) The proviso does not violate the provisions of Article II, section 19 of the Washington State Constitution.

             (3) All proceeds of local levies in a school district are a part of the "general school fund" of the district, and the effect of the proviso is that no moneys of the "general school fund" of such districts may be used to pay the cost of establishing or maintaining kindergartens.  (Nullified by Senate Bill No. 22, Extraordinary Session).

             (4) Local school districts may not set up or make available any fund or funds to be used for the establishment or maintenance of kindergartens.  (Nullified by Senate Bill No. 22, Extraordinary Session).

             (5) The financial responsibility of the local school district in this respect would include fuel, rent or depreciation of buildings, janitor service, a proportionate cost of transportation, and other incidental expenses.

             (6) Attendance of children at kindergarten this year should not enter into the formula for ascertaining attendance credits for school districts for apportionment purposes for next year.  (Nullified by Senate Bill No. 22, Extraordinary Session).

                                                                      ANALYSIS

             The appropriation from the current school fund for apportionment to counties for school districts, as provided at page 21 of Substitute Senate Bill No. 400 of the 1953 legislative session, expressly provides;

             "* * * That no portion of this appropriation shall be expended for the cost of establishing or maintaining kindergartens under chapter 28.35 RCW.  * * *"

             The act carries an emergency clause and therefore takes effect immediately.

              [[Orig. Op. Page 3]]

            Under RCW 28.35.010, first and second class school districts are authorized to establish and maintain free kindergartens "in connection with the common schools of their districts."  Kindergartens so established are a part of the public school system.  (RCW 28.35.020).  The cost of establishing and maintaining kindergartens is to be paid from the "general school fund" of the districts.  (RCW 28.35.030).  The general school funds of the districts are made up of funds derived from district tax levies, and from the state through apportionment of the current school fund.

             In apportioning funds among the school districts, the county superintendents are directed to "allow 1/2 credit for kindergarten attendance, to the same extent as credit is allowed for attendance in the elementary grades."  RCW 28.35.040 and RCW 28.41.070 prescribe the formula for extending the total attendance credit of school districts, on the basis of which, the superintendent of public instruction is to make apportionment of current school funds for the distribution among school districts.  This formula includes an allowance for "one‑half days for each two hours actual attendance in kindergarten."

             DOES THE PROVISO IMPAIR THE OBLIGATIONS OF CONTRACTS?

             Your first inquiry is whether the proviso to the appropriation item for apportionment to school districts violates the prohibition of Article I, section 23, of the Washington state constitution, prohibiting the impairment of contracts.  This question arises because of the fact that certain school districts have existing contracts with kindergarten teachers extending beyond April 1, 1953, the beginning of the fiscal biennium to which Substitute Senate Bill No. 400 applies.

             As above indicated, under RCW 28.35.030, the cost of maintaining kindergartens must be borne by the "general school funds" of the respective school districts.  Contracts entered into for kindergarten teachers are thus the obligation of the school district.  It is apparent that the elimination of financial assistance from the state for supporting kindergartens will place an added burden upon the districts in meeting their contractual obligations which were incurred for kindergarten purposes prior to the passage of Senate Bill No. 400.  This, however, does not result in an impairment of the obligation itself.  The contractual obligation remains intact, and the districts are still liable therefore.

             Even if the state were directly liable as one of the contracting parties, the general rule is that the legislature may avoid payment of the obligations of the state by failure or refusal to make the necessary appropriations, notwithstanding that that body cannot impair the obligations of the contract itself.  See 12 Am.Jur. 32, Constitutional Law, § 400; 49 Am.Jur. 275, States, § 62.

              [[Orig. Op. Page 4]]

            In the case of Carr v. State, 127 Ind. 204, 26 N.E. 778, the Indiana court makes the following statement:

             "There is one essential and far-reaching difference between the contracts of citizens and those of sovereigns; not, indeed, as to the meaning and effect of the contract itself, but as to the capacity of the sovereign to defeat the enforcement of its contract.  The one may defeat enforcement but the other cannot.  * * * The legislature has therefore the ability to avoid payment of the obligations of the state by a failure or refusal to make the necessary appropriations, although that body cannot impair the obligation of the contract.  Creditors who accept the obligations of the state are bound to know that they cannot enforce their claims by an action against the state directly, nor by an action against its officers where no appropriation has been made as the constitution requires.  * * *"

             We are of the opinion that the proviso appended to the appropriation item for school districts, by which the use of any of the funds for kindergartens is prohibited, does not constitute an impairment of the contracts heretofore entered into by the school district with kindergarten teachers.  Substitute Senate Bill No. 400 does not violate Article I, § 23 of the Washington constitution.

             DOES THE PROVISO CONTRAVENE ARTICLE II, SECTION 19 OF THE WASHINGTON STATE CONSTITUTION?

             Your second inquiry is whether the inclusion of the proviso attached to the appropriation for school districts violates Article II, section 19, of the state constitution.  That section reads as follows:

             "No bill shall embrace more than one subject, and that shall be expressed in the title."

             The title to Substitute Senate Bill No. 400 relates to the general subject of appropriations.  The proviso for appropriations for school districts controls the expenditure of the money appropriated in that particular item by excluding the establishment or maintenance of kindergartens as a proper use thereof.  Such control of disbursements is reasonably related to the general subject of appropriations as stated in the title of the act.

             Our Supreme Court has consistently held that the provisions of Article I, section 19 of the constitution must be liberally construed; that no special form of words or any particular manner is required to express the subject of the title; that the purpose  [[Orig. Op. Page 5]] of this provision is to require that the title so express the subject of the act as to reasonably lead to an inquiry into its body; and that any matter reasonably related or germane to the subject expressed in the title may be included in the body of the act.  Maxwell v. Lancaster, 81 Wash. 602, 143 Pac. 157; Holzman v. Spokane, 91 Wash. 418, 157 Pac. 1086;Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651.

             The proviso with which we are here concerned, by implication, supersedes or suspends the pre‑existing statutory provisions fixing kindergarten attendance as one of the elements in the formula for determining apportionment to school districts.  The fact that the proviso thus has the effect of indirectly modifying pre‑existing statutes which are not referred to in the title of the appropriation act does not violate Article II, section 19, of the constitution.

             In the case of Spokane Grain and Fuel Company v. Lyttaker, 159 Wash. 76, 82; 109 Pac. 316, the court has under consideration the prohibition of Article II, section 37, of the Washington constitution prohibiting amending or revising any act by more reference to its title, and requiring that the act amended be set forth in full.  This question is interwoven with the application of section 19 of the same article of the constitution.  The Court there said:

             "* * * Nearly every legislative act of a general nature changes or modifies some existing statute, either directly or by implication, * * *.  The purpose of the constitutional provision was to protect the members of the legislature and the public against fraud and deception; not to trammel or hamper the legislature in the enactment of laws.  * * *"

             The case of Jones v. Clausen, 78 Wash. 103, 138, 653, involved an appropriation act which, by an appropriation item, raised the salary of the deputy state auditor above the amount fixed by a pre‑existing statute.  In holding that the appropriation act did not violate Article II, section 19, of the constitution, the court stated the well established rule that all matters incidental or germane to the general subject set forth in the title of the act may be written into the body of the law.  With specific reference to appropriation bills, the court there said:

             "Appropriation bills, although temporary in duration, are nevertheless general laws, * * * If they do not offend against the Constitution, and are found to be in irreconcilable conflict with a permanent act, the latter will be held to be suspended to repealed during the time the appropriation bill is in force.  * * *"

              [[Orig. Op. Page 6]]

            In the case of In re Peterson's Estate, 182 Wash. 29, 45 P. (2d) 45, the court had under consideration "AN ACT authorizing the incorporation of mutual savings banks, defining their powers and duties, and prescribing penalties for violations hereof."  The body of the act changed the existing law of joint tenancies with respect to deposits in mutual savings banks.  It was contended that the act contravened Article II, section 19 of the constitution, in that the title to the act made no reference to the subject of joint tenancies.  The court there said:

             "* * * No elaborate statement of the subject of an act is necessary to meet the requirements of the constitutional provision.  A few well-chosen words, suggestive of the general subject stated, is all that is necessary.  State ex rel. Seattle Electric Co. v. Superior Court, 28 Wash. 317, 68 Pac. 957, 92 Am.St. 831.  Such a title to the act as this one should be liberally construed, and in deference to legislative discretion on the subject, acts shall not be construed as void, as violating the constitution, unless they are so beyond any reasonable doubt.  State ex rel. Reitmeier v. Oakley, 129 Wash. 553, 225 Pac. 425; King County v. Stringer, 130 Wash. 287, 227 Pac. 17."

            In our opinion, the proviso to Substitute Senate Bill No. 400 herein discussed, does not violate Article II, section 19, of the state constitution, nor does it violate section 37 of the same article.

             CAN ANY MONEYS OF A DISTRICT BE USED FOR KINDERGARTENS?

             RCW 28.35.030 provides that the cost of establishing and maintaining kindergartens shall be paid from the "general school fund" of the district.  RCW 28.44.010 defines that fund as follows:

             "* * *

             "(2) The school district fund together with the apportionments from the current state school fund and from the county school fund constitutes the 'general school fund' of a district."

             It is apparent that the fund from which the cost of kindergarten operations must be paid, is a fund which, by definition, will include some of the money appropriated by Substitute Senate Bill No. 400.  Since that bill prohibits the use of any of the money appropriated for schools therein from being expended upon kindergartens, it is necessary to determine whether or not the district can segregate, within the fund, the state apportionment money from the rest of the money, and use only the latter for the operation of kindergartens.  It is our opinion that they may not.

              [[Orig. Op. Page 7]]

            The very language of the statutes referred to seems to indicate that no such segregation was contemplated.  If the moneys are segregated the fund can no longer be the "general school fund" of the district.  If only funds raised by school district levies are used, the cost of operation is then paid from what is defined by RCW 28.44.010 as the "school district fund."  This result, of course, is not permissible because of the express terms of RCW 28.35.030.  Since the pertinent statutes require that the state and local moneys be commingled in a single fund, the limitations imposed upon a part of that fund by the proviso to the appropriations bill, would be equally applicable to the entire fund.

             It is our conclusion that no part of the "general school fund of a district" may be used to pay the cost of establishing and maintaining kindergartens.

             NOTE:  We take notice of the fact that Senate Bill No. 22 of the extraordinary session of the legislature amended the proviso in question and provided specifically:

             "That notwithstanding any provisions of the law to the contrary, no school district shall be prohibited from expending for the operation and maintenance of kindergartens, funds raised in any other manner."

             This bill was passed subsequent to the time our conclusions were drawn, but prior to the publication of this opinion.  Its effect is to nullify the conclusion just stated.

             MAY LOCAL SCHOOL DISTRICTS SET UP FUNDS FOR MAINTENANCE OF KINDERGARTENS?

             As indicated above RCW 28.35.030 provides that the cost of operating and maintaining kindergartens shall be paid from the general school fund of the district.  Ordinarily, the word "shall" in the statute is presumed to be used in a mandatory sense.  See State v. Meeker, 105 N.E. 906, 182 Ind. 240; Vail v. Messenger, 168 N.W. 281, 184 Iowa 553.  Unless there are other things in the statute to indicate a contrary legislative intent, the word will be deemed to have a mandatory effect.  State ex rel. Stevens v. Wurdeman, 246 S.W. 189, 194, 295 Mo. 566.

             In considering whether this word should have a mandatory effect in the statute cited, it is necessary to refer to RCW 28.44.010 to determine the legislative intent in setting up school district funds.  Although two separate funds are defined therein, a reading of the second definition indicates that all funds are combined in the "general school fund" of the district.  It follows, therefore, that there is but a single  [[Orig. Op. Page 8]] fund available to the school district and that is the fund known as the "general school fund."  It is, therefore, clear that the legislature intended to set up butone fund out of which the entire cost of operating schools and kindergartens should be paid.  There being no other fund, it necessarily follows that the legislature intended, by the language of RCW 28.35.030, to require that the cost of operating kindergartens be paidonly from that fund.  The result is that, even if additional moneys were raised on the local level, it can only be paid into the "general school fund" of the district.  Having been incorporated into the proviso to the appropriations bill, these same limitations would apply to the expenditure of that money as has been imposed upon the portion of the fund made up of state apportionment money.

             We conclude, therefore, that a local school district cannot set up or make available any fund or funds to be used for the establishment or maintenance of kindergartens.

             NOTE:  Senate Bill No. 22 of the extraordinary session, quoted at the end of the preceding section, nullifies the effect of the conclusion just stated.

             FINANCIAL RESPONSIBILITY OF LOCAL SCHOOL DISTRICT TO KINDERGARTENS.

             Our analysis and conclusions previously set out in answer to questions 3 and 4 apply equally to the problem raised by your fifth inquiry, except that it becomes necessary to determine what is embraced within the concept of "maintain."

             Courts are inclined to construe the word "maintain," when used in the sense of its application here, quite broadly.  The word "maintain" has been defined to mean "bear the expense of, to support, keep up, to supply with what is needed."  Farber v. Olkon, Cal.App. 246 Pac. (2d) 710, at page 716.  Our supreme court inState ex rel. King County v. Murrow, 199 Wash. 685, 692, held that marine insurance on ferry boats is a proper item for the expenditure of funds by a county for the maintenance of the county's road system and for ferries.  The court indicated that the term "maintain" should be given a broad construction and should include the term "operate."  Manifestly, "maintain" connotes something much broader than that contemplated by teachers' salaries alone.  It would include fuel, rent or depreciation of buildings, fire insurance, janitor service, a proportionate cost of transportation and many other incidental expenses.  It is the duty of the governing body of each school district (board of directors) to exercise its sound discretion in the computation of the cost of operating kindergartens within the district.  Such computations cannot, of course, be made mathematically precise.  It would undoubtedly be sufficient, in those districts where kindergartens share the regular school facilities, to calculate the cost of their operation upon a ratable formula, so long as that formula includes every item normally incident to kindergarten operations and maintenance.

              [[Orig. Op. Page 9]]

            NOTE:  Again, Senate Bill No. 22 of the extraordinary session modifies the prohibition contained within the proviso in question of Senate Bill No. 400.

             ATTENDANCE CREDITS OF KINDERGARTEN CHILDREN FOR APPORTIONMENT PURPOSES FOR NEXT YEAR.

             We are also of the opinion that attendance of children at kindergartens this school year may not enter into the formula for ascertaining the attendance credits for school districts for apportionment purposes for next school year.  No argument or analysis is necessary to point out the absolute inconsistency of withholding state funds for the support of kindergartens, and simultaneously continuing to base the apportionment of school district funds on a formula which takes into consideration such kindergarten attendance figures.

             NOTE:  Senate bill 22 of the extraordinary session has eliminated the problem discussed in the preceding section of this opinion.  It amended the proviso to Substitute Senate Bill 400 and provided as follows:

             ". . . . such limitation shall not apply to the balance of the school year ending June 30, 1953 or to those apportionments determined in accordance with Chapter 28.41 RCW, which are based on kindergarten attendance prior to June 30 1953, and after the aforesaid date no portion of the aforesaid appropriation shall be apportioned to school districts on the basis of kindergarten educational units or on the basis of kindergarten attendance, including such attendance for computing equalization payments:  * * *"

             Your six questions are answered in our conclusions set forth on pages 1 and 2 of this opinion.

 Very truly yours,
DON EASTVOLD
Attorney General 

RALPH M. DAVIS
Assistant Attorney General

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