Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1962 No. 117 - Apr 19 1962
Attorney General John J. O'Connell


School buildings may be constructed or remodeled so as to provide a radioactive fallout protection factor.

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                                                                   April 19, 1962

Honorable Louis Bruno
State Superintendent of
Public Instruction
Old Capitol Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 117

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on the following question:

            "Do school districts have the power under existing law, or fairly implied therefrom, to utilize state or local tax funds, or both, for the purpose of constructing combination classroom or multipurpose rooms and bomb shelters, or the power to construct a bomb shelter per se with said funds?"

            We answer your question in the affirmative provided the construction is for the benefit of school children as opposed to the general public.


            Your question poses two problems for our consideration: (1) Does a school district have the authority to build such shelters or multipurpose rooms; and (2) may school tax funds be used to do so?

            1.The Authority of School Districts.

            Our legislature, acting under the authority conferred upon it by Article IX, §§ 1 and 2 of our State Constitution, has provided for a school system administered through the cooperation of state, county and local school officials.  InNewman v. Schlarb, 184 Wash. 147, 50 P. (2d) 36 (1935), our court pointed out that (p. 153):

             [[Orig. Op. Page 2]]

            "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, county, 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.  Consequently, it reserved to the proper state officers the general supervision of the system and entrusted to its various political subdivisions certain functions and details in which they were particularly interested and concerned."

            It must be kept in mind that a school district is a creature of the legislature and has only such powers as may be conferred by statute.  SeeOthello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955); Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934); and State ex rel. School District No. 301 v. Clausen, 109 Wash. 37, 186 Pac. 319 (1919).  Municipal corporations, including school districts, have only those powers which are expressly granted by statute or necessarily implied therefrom.  Christie v. The Port of Olympia, 27 Wn. (2d) 534, 179 P. (2d) 294 (1947).  While any reasonable doubt as to the existence of a power must be resolved against the municipal corporation(Pacific First Federal Savings & Loan Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947)) the statutes need not set forth in minute detail every power which the municipal corporation may exercise.  State ex rel. Hunter v. Superior Court, 34 Wn. (2d) 214, 208 P. (2d) 866 (1949).

            Thus it becomes necessary for us to consider the authority of a school district as found in our statutes.

            RCW 28.58.010 reads as follows:

            "A school district shall constitute a body corporate and shall possess all the usual powers of a corporation for public purposes, and in that name and style may sue and be sued, purchase, hold, and sell personal property and real estate, and enter into such obligations as are authorized by law.   [[Orig. Op. Page 3]] The board of directors of the school district shall have exclusive control of all school buildings and other property, real or personal, owned by the district."

            RCW 28.58.100 reads in part as follows:

            "Every board of directors unless otherwise specially provided by law, shall:

            ". . .

            "(2) Enforce the rule and regulations prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils and teachers, and enforce the course of study lawfully prescribed for the schools of their districts;

            "(3) Rent, repair, furnish and insure schoolhouses and employ janitors, laborers and mechanics;

            "(4) Cause all schoolhouses to be properly heated, lighted and ventilated, and cause all school premises to be maintained in a cleanly and sanitary condition;

            "(5) Purchase personal property in the name of the district and receive, lease, issue and hold for their district real and personal property;"

            RCW 28.51.010 reads in part as follows:

            "The board of directors of any school district may borrow money and issue negotiable coupon bonds therefor for the purpose of:

            ". . .

            "(3) For erecting buildings authorized by law and providing the necessary furniture, apparatus, or equipment; or"

             [[Orig. Op. Page 4]]

            As we interpret these statutes, school districts, acting through their respective school boards, have the express authority to provide appropriate school buildings and to adequately supply the same for school purposes.

            School districts are charged with the care and custody of school children during school hours.  InBriscoe v. School District No. 123, 32 Wn. (2d) 353, 362, 201 P. (2d) 697 (1949), our court pointed out:

            ". . . when a pupil attends a public school, he or she is subject to the rules and discipline of the school, and the protective custody of the teachers is substituted for that of the parent.

            "As a correlative of this right on the part of a school district to enforce, as against the pupils, rules and regulations prescribed by the state board of education and the superintendent of public instruction, a duty is imposed by law on the school district to take certain precautions to protect the pupils in its custody from dangers reasonably to be anticipated. . . ."

            In our opinion it necessarily follows that the school district may and should consider the safety of the school children and if, in an exercise of its discretion, it finds that the international situation justifies the construction or remodeling of school facilities so as to provide a protection factorto the children in such school, we believe that the court would uphold such a determination.

            2.Use of School Tax Funds.

            It next becomes necessary to consider from what sources school districts may draw funds to construct or remodel school buildings so that such buildings will have a fallout protection factor.

            Initially we note that it is well settled that common school funds may not be used for building construction whether the buildings involved be for school or community purposes.  See,Sheldon v. Purdy, 17 Wash. 135, 49 Pac. 228 (1897).

            Building funds may however be obtained by budgeting the same in the annual district's budget as provided in RCW 28.58.120, which reads as follows:

             [[Orig. Op. Page 5]]

            "At the time of preparing the annual budget for the ensuing year the board of directors of a school district may include therein a sum not exceeding one‑fifth of the taxable income of the district for any or all of the following purposes:  (1)The establishment and support of a building fund, (2) the establishment and support of a fund for the purchase of transportation equipment, (3) the purchase of a schoolhouse site or sites for buildings or playgrounds, (4)the erection of one or more buildings authorized by law and providing the same with furniture, (5) the payment of the principal or interest on outstanding bonds or the refunding of outstanding indebtedness."  (Emphasis supplied.)

            or by borrowing money and issuing bonds as provided in RCW 28.51.010, which reads as follows:

            "The board of directors of any school district may borrow money and issue negotiable coupon bonds therefor for the purpose of:

            "(1) Funding outstanding indebtedness or bonds theretofore issued; or

            "(2) For the purchase of schoolhouse sites for buildings or playgrounds authorized by law; or

            "(3)For erecting buildings authorized by law and providing the necessary furniture, apparatus, or equipment; or

            "(4) For any or all of these purposes.

            "Neither the amount of money borrowed nor bonds issued therefor shall exceed five percent of the assessed valuation of the taxable property in such district, as shown by the last assessment roll for county and state purposes previous to the incurring of such indebtedness, except that in cities incorporated under special charter the valuation shall be taken from the last assessment for city purposes:  Provided, That any school district  [[Orig. Op. Page 6]] may become indebted to a larger amount but not exceeding five percent additional for capital outlays.

            "Bonds may be issued only when authorized by vote of the district."

            In addition, state matching funds provided by chapter 28.47 RCW may also be used for remodeling school buildings in all districts, should the state board of education so provide by rule or regulation.  In reaching this conclusion we are guided by the provisions of RCW 28.47.050, which reads as follows:

            "It is the intent of the legislature that the following provisions be enacted for the purpose of establishing and providing for the operation of a program of state assistance to school districts in providing school plant facilities."

            and by RCW 28.47.060, which reads in part as follows:

            "The state board of education shall:

            "(1) Prescribe rules and regulations governing the administration, control, terms, conditions, and disbursements of grants to school districts to assist them in providing school plant facilities;"

            By the plain and unambiguous terms of these statutes, state aid may be used to assist the districts in providing school plant facilities subject to the rules and regulations of the state board of education.

            We conclude that a school district may remodel existing school buildings or construct future school buildings so that the same would have a fallout protection factor if in the opinion of the local school district directors such remodeling or construction is reasonably necessary to protect the school children from danger due to potential fallout.  The funds necessary for such remodeling or construction may be obtained by budgeting the same in the annual school district budget, or by borrowing money and issuing bonds.  In addition, state matching funds may also be used for such remodeling or construction provided the state board of education so provides by rule or regulation.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General