Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1951 No. 187 -
Attorney General Smith Troy


Must a school district which has procured funds for the construction of a school building and the acquisition of a school site through a program of special levies and bond issues comply with requirements of Rem. Rev. Stat. 4809 and hold special election for selection of a school site?  (First Class District)

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                                                                December 7, 1951

Mr. Don G. Abel
Prosecuting Attorney
Grays Harbor County
Aberdeen, Washington                                                                                             Cite as:  AGO 51-53 No. 187

Dear Sir:

            You have requested the opinion of this office on the following question:

            "Where a first class school district has procured funds for the construction of a school building and acquisition of a school site through a program of special levies and bond issues, and the acquisition of the building site was authorized at a special election, must this school district comply with the requirement of the proviso of Rem. Rev. Stat., § 4809, and hold a special election for the selection of a school site by popular vote of the district?"

            Our conclusion is that the directors of a first class school district have authority to select a building site without the vote of the district.


            This question was before our Supreme Court in the case of State ex rel. Lukens v. Spokane School District, 147 Wash. 467, and we shall quote rather extensively from the court's decision.  At page 473, the court said:

             [[Orig. Op. Page 2]]

            "* * * Under the school code, ch. 97, Laws of 1909, p. 230, the same being Rem. Comp. Stat., § 4518et seq. [P.C. § 4720 et seq.] school districts are divided into three classes.  As to districts of the second class it is provided, Rem. Comp. Stat., § 4819:

            "'The board shall build or remove school houses, purchase or sell lots or other real estate when directed by a vote of the district to do so * * *'"

            and as to districts of the third class, Rem. Comp. Stat., § 4836 provides how the board of directors shall proceed when they

            "'* * * shall be authorized by the electors of their district to erect a school building.'

            "However, the respondent school district, comprising as it does the city of Spokane, is a school district of the first class, Rem. Comp. Stat., § 4695 [P.C. § 4899], and the law defining its powers contains no provision requiring a popular vote of the district to authorize the purchase of school sites or to erect and furnish school buildings.  The only provision on the subject to which our attention has been called or that we are aware of is Rem. Comp. Stat., § 4809 [P.C. § 5013], which says:

            "'The board of directors shall annually, at a meeting next preceding the annual tax levy for state and county purposes, report to the board of county commissioners an estimate of the amount of funds, in addition to estimated receipts from the state and county apportionments for said district, required for the support of the schools, for the purchase of school sites, the erection and furnishing of school buildings, * * *'

            "This is but a reprint of a former statute, Bal. Code, vol. 3, § 2367, under which it was held inNichols v. School District, 39 Wash. 137, 81 Pac. 325, that the school district in which the city of  [[Orig. Op. Page 3]] Tacoma was situated had authority, without a popular vote of the district, to purchase and pay for a site for a school building.  A popular vote in such a case is only advisory, not affecting the power of the board of directors in school districts of the first class.

            "In a nut shell, this whole controversy arises over a question of judgment.  The petitioners before the board, the appellants here, are not in agreement with the members of the board.  That disagreement of itself is not for the courts.  The law has plainly vested the board of directors of school districts such as this with discretionary powers in such matters, and the directors having examined into and passed upon the matter in the exercise of their discretion, the courts have no right or power to review the conclusions reached by them as a board in the absence of a showing of abuse of discretion on their part, which is not the case here."

            This case has been cited and the last paragraph quoted in State ex rel. Showalter v. Goodyear, 30 Wn. (2d) 834, at page 844, and in the case ofIn re Chelan Electric Co., 152 Wash. 412, at page 415.

            It would appear that the case of State ex rel. Lukens v. Spokane School District, supra, is conclusive, and that the directors have discretionary power to select a building site without a vote of the district in first class districts.

Very truly yours,

Attorney General

Assistant Attorney General