Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1962 No. 169 - Sep 26 1962
Attorney General John J. O'Connell


A school district may contract with a sewer district for the installation of a sewer line under chapter 35.91 RCW.

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                                                              September 26, 1962

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle 4, Washington

                                                                                                              Cite as:  AGO 61-62 No. 169

Dear Sir:

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

            May a school district contract as an owner with a sewer district under the provisions of chapter 35.91 RCW?

            We answer your question in the affirmative as explained in the analysis.


            A school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature, those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of a municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934).  The rule has been stated in several ways by the supreme court of this state.  In summary, it may be said that ". . . if the power is not expressly granted or fairly implied as incidental and essential to the powers granted, such powers must be denied."  SeeGriggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928).

            To clarify this point, implied powers are such as are necessary to carry into effect those which are expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant.  City of Madison v. Daley, 58 Fed. 751, 755  [[Orig. Op. Page 2]] (1893).  If there is a fair or reasonable doubt as to whether or not a particular power has been granted, it must be denied.  Griggs v. Port of Tacoma, supra; Pacific First Federal Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347, 353, 178 P. (2d) 351 (1947); 2 McQuillin, Municipal Corporations, 3rd ed., § 10.12, page 609.

            The words "necessary" and "essential" in such cases refer to legal necessity rather than practical necessity.  See,State ex rel. State Board etc. v. Clausen, 84 Wash. 279, 283, 146 Pac. 630 (1915).

            The governing body of a school district, empowered to exercise the foregoing powers, is, of course, the elected board of directors.  RCW 28.58.080;State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934).

            Chapter 35.91 RCW, which is the municipal water and sewer facilities act, and which is intended to establish comprehensive sanitary systems in outlying areas, provides, in RCW 35.91.020:

            "The governing body of any city, town, sewer district, water district or drainage district, hereinafter referred to as a 'municipality' may contract withowners of real estate for the construction of storm, sanitary or combination sewers, pumping stations and disposal plants, water mains, hydrants or appurtenances, hereinafter called 'water or sewer facilities', within their boundaries or within four miles from their corporate limits connecting with the public water or sewerage system to serve the area in which the real estate of such owners is located, and to provide for a period of not to exceed fifteen years for the reimbursement of such owners and their assigns by any owner of real estate who did not contribute to the original cost of such water or sewer facilities and who subsequently tap onto or use the same of a fair pro rata share of the cost of the construction of said water or sewer facilities, including not only those directly connected thereto, but also users connected to laterals or branches connecting thereto, subject to such reasonable rules and regulations as the governing body of such municipality may provide or contract, and notwithstanding the provisions of any other law.  The provisions of such  [[Orig. Op. Page 3]] contract shall not be effective as to any owner of real estate not a party thereto unless such contract shall have been recorded in the office of the county auditor of the county in which the real estate of such owner is located prior to the time such owner taps into or connects to said water or sewer facilities.  The power of the governing body of such municipality to so contract shall also apply to water or sewer facilities in process of construction on the effective date of this act or which shall not have been finally approved or accepted for full maintenance and operation by such municipality upon the effective date of this act."  (Emphasis supplied.)

            Thus, in order to contract with a "municipality," as defined in the act, the school district must be an "owner."  That a school district is an owner in the normal sense of the word can hardly be disputed.  The power to own realty is expressly granted in many places throughout Title 28 RCW.  By way of example, RCW 28.58.010 provides in part:

            "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 andreal estate, . . . 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."  (Emphasis supplied.)

            Our next inquiry must then be, can the directors enter such a contract?  RCW 28.58.100 (4) makes it a duty of the directors to:

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

            From the duty to keep the schools "sanitary" there must necessarily be implied the power to enter into a contract to have the service performed, which in this instance is the installation of a sewer to the school.

             [[Orig. Op. Page 4]]

            This conclusion is substantiated by a prior opinion of this office, dated December 1, 1944, to the Honorable Lloyd Shorett, Prosecuting Attorney, King County, which states that a school district has authority to expend school funds to lay a water pipe to the city water main under RCW 28.58.100 (4), supra.  It is reasonable to conclude that if a school district has the power to contract to have a water main put in to serve the school under RCW 28.58.100 (4)supra, the school district should have the power to contract for sewerage facilities for the school.

            Accordingly, it is the opinion of this office that a school district is authorized to contract with a sewer district, under chapter 35.91 RCW for the installation of such sewer lines as are necessary.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General