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Bob Ferguson

AGO 1950 No. 238 - Mar 22 1950
Attorney General Smith Troy


School district erecting buildings within municipalities may be required to comply with municipal building ordinances, provided that they are reasonable.

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                                                                  March 22, 1950

Mr. Donald H. Webster
Bureau of Governmental Research & Service
University of Washington
Seattle, Washington                                                                                                              Cite as:  AGO 49-51 No. 238

Dear Sir:

            You have inquired whether or not school buildings to be erected within the corporate limits of cities or towns may be required to comply with reasonable municipal building ordinances.

            The conclusion reached is that cities or towns may require such compliance.


            There is no question but that in the exercise of its police power, a municipality may ordain reasonable building regulations, and such regulations will be valid so long as they do not conflict with positive general laws covering the same subject matter.

            State Constitution, Art. XI, Section 11
Rem. Rev. Stat. 8966(24) 1st class cities
Rem. Rev. Stat. 9034(52) 2nd class cities
Rem. Rev. Stat. 9127(r)  3rd class cities
Rem. Rev. Stat. 9174(17) 4th class cities
Bebb v. Jordan, 111 Wash. 73, 189 Pac. 553

            It is well established, however, that such municipal building regulations are not binding upon the state.

           !ih5,3Kentucky Inst. v. Louisville,
123 Ky. 767, 97 S.W. 402
Milwaukee v. McGregor ,
140 Wis. 35, 121 N.W. 642
Ops. Atty. Gen., Feb. 28, 1947
Ops. Atty. Gen., Aug. 30, 1913

            Thus, in an opinion dated February 28, 1947, addressed  [[Orig. Op. Page 2]] to the State Auditor, the conclusion was reached that the City of Ellensburg might not compel the trustees of the Central Washington College of Education, it being a state institution, to comply with the city's building code.  In that opinion, the following language appears:

                 "The basic theory underlying the problem is well stated in the case of Kentucky Institution for Blind v. Louisville, 123 Ky. 767, 97 S.W. 402, 8 L.R.A. (N.S.) 533:

                 "' * * * The principle is that the state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property which the state has authorized another body or power to control.  The municipal government is but an agent of the state‑-not an independent body.  It governs in the limited manner and territory that is expressly or by necessary implication granted to it by the state.  It is competent for the state to retain to itself some part of the government even within the municipality, which it will exercise directly or through the medium of other selected and more suitable instrumentalities.  * * *'"

            The result reached therein is manifestly correct.  School districts, however, do not stand upon the same high plane of sovereignty as the state or its institutions.  A school district is a municipal corporation or quasi-municipal corporation created by the legislature, and it exercises only such powers as the legislature has granted to it in express words, or those necessarily or fairly implied in or incident to the powers expressly granted or those essential to the declared objects and purposes of the corporation.  Juntila v. Everett School District No. 24, 178 Wash. 637 (639), 35 P. (2d) 78.

                 "It is not necessary to cite authorities to support the statement that school districts and their directors have only such powers as are by statute given them."

                 Hansen v. Lee, 119 Wash. 691 (694), 206 Pac. 927.

            What, then, are the powers conferred upon school districts and their directors concerning the erection of school buildings?

            By the provisions of section 1, chapter 52, Laws of 1943  [[Orig. Op. Page 3]] (4776 Rem. Supp. 1943), which defines the powers of all school directors:

                 "Every board of directors, unless otherwise specially provided by law, shall have the power and it shall be its duty:  * * *

                 "Fourth.  To cause all school houses to be properly heated, lighted and ventilated, and to cause all school premises to be maintained in a cleanly and sanitary condition."

            Section 7, chapter 90, Laws of 1919 (Rem. Rev. Stat. 4789), provides:

                 "Whenever any board of directors of school districts of the third class shall be authorized, by the electors of the district, to erect a school building, it shall be the duty of such board, before entering into any contract for the erection of any buildings, to obtain the approval of the county superintendent of the county in which the building is to be erected, of the plans and specifications for the building to be erected, said superintendent to give special attention to the provisions made therein for heating, lighting and ventilation."

            It is provided in section 14, chapter 97, Laws of 1897 (Rem. Rev. Stat. 4836), relating likewise to directors in 3rd class districts, that:

                 "Whenever any board of directors shall be authorized by the electors of their district, to erect a school building, it shall be the duty of such board, before entering into any contract for the erection of any buildings, to obtain the approval of the county superintendent, of the plans and specifications for the building to be erected, including also the heating, lighting, ventilating and safety thereof."

            An examination of these statutes reveals that the directors of all districts are charged with the duty of properly heating, lighting and ventilating all school premises and causing them to be maintained in a sanitary condition and in addition, directors of third class districts are enjoined to submit plans and specifications of new school buildings to the county superintendent of  [[Orig. Op. Page 4]] schools.

            Upon the other hand, by the provisions of Article XI, section 11 of the Constitution:

                 "Any county, city, town or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws."

            It was held inPasadena School District v. Pasadena, 166 Cal. 7, 134 Pac. 985, under a constitutional provision identical with that quoted above, that a municipal corporation, in the exercise of its police power, has the power to subject a school district erecting a school building within its corporate limits, to its regulatory building ordinance and building code.  In that case, the board of trustees of the school district were, by statutes, obliged to submit plans and specifications to the county superintendent, and were entrusted generally with the management and control of the school district's property.  The court said that the only question presented was one of power.

                 "It is claimed by appellant that if the power of the city authorities is sustained, the effect will be to deprive the state of its power through school trustees acting as a public agency of the state to regulate the construction of such buildings for school purposes as the state may desire.  No such result will follow nor is it to be apprehended.  The state undoubtedly might provide, in the exercise of its police power and under a general law, for a complete system of regulation for the protection of the public health, safety, and comfort in the erection of school buildings.  But this it has not done.  It was not intended by the legislature, in empowering the trustees of school districts to control school property and erect school houses, that the matter of regulations respecting school buildings should be left to the trustees; that a school district which embraces territory including a densely populated city or where its territory as such is exclusively within the city in which the necessity for building regulations to promote the safety and security of the community is imperative, should not be controlled by the police power of the municipality but might set at naught its regulations and construct a school building in any part of the city it  [[Orig. Op. Page 5]] saw fit and of any kind of material or character it chose to and thus in any serious conflagration jeopardize surrounding buildings and the lives of their occupants.  While it is of course necessary that the safety and security of pupils should be assured in constructing school buildings, still other equally important interest of the inhabitants of a city are to be consulted.  The legislature doubtless recognized that in the matter of police regulations, though it had the power by general law to provide for them in school districts, yet their imposition might be safely left to the public bodies, empowered by section 11 of article XI of the constitution, who would have more particular knowledge of the necessity and extent of imposing them.  Different police regulations may be required in different municipalities depending on the density of the population.  The mere fact that the school district embraces a part of a city where building regulations are imperative for public safety could afford no reasonable excuse why, if it is necessary to construct a school building in the city, the trustees should not in the interest of the public good be subject to the same building regulations as others erecting structures therein are subjected to.  In promoting the municipal welfare and safety the school district ought to be subject to them.  The only way it can be relieved from this would be by a general law on the subject and as none exists the municipal regulations control and a school district desiring to erect a school building within the municipal territory, though it is likewise school district territory, must submit to its building code and ordinances and comply with their requirements."

            Section 4776 (4) Rem. Supp. 1943 quoted above, while it is without question a general law, does not in our opinion conflict with the letter or the spirit of the various building codes in effect throughout the state inasmuch as that section pertains only to the maintenance and operation of school buildings.  Rem. Rev. Stat. 4789 and Rem. Rev. Stat. 4836, while they expressly relate to the erection of school buildings in 3rd class districts do not, to quote the language of thePasadena case, constitute "a complete system of regulation for the protection of the public health, safety, and comfort in the erection of school buildings."

             [[Orig. Op. Page 6]]

            It is our conclusion, therefore, that municipalities may require compliance by school districts with municipal building ordinances and building codes provided that they are reasonable.  See also,Kansas City v. School District of Kansas City (Mo.), 201 S.W. (2d) 930.

Yours very truly,

Attorney General

Assistant Attorney General