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Bob Ferguson

AGO 1954 No. 194 -
Attorney General Don Eastvold


1. The directors of a school district of the first class which does not contain a first or second class city may expend up to $50,000 for purchase of a school site without an election.

2. The ballot title in a bond election to finance construction of a school building in a first class school district need not contain a description of the building site.

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                                                                 January 25, 1954

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Court House
Spokane, Washington                                                                                                              Cite as:  AGO 53-55 No. 194

Attention:  Robert J. McNichols, Civil Deputy

Dear Sir:

            By letter dated January 5, 1954, you have requested the opinion of this office upon two questions, as follows:

            "(1) May the board of directors of a school district of the first class located outside of an incorporated area purchase property for a high school site without the prior approval of the electors of the district?"

             [[Orig. Op. Page 2]]

            "(2) Whether the answer to the foregoing question is in the affirmative or negative, must the ballot title in the subsequent bond election (held for the purpose of financing a high school building) include the description of the property site?"

            It is our opinion that the answer to your first inquiry is "Yes," and the answer to your second inquiry is "No."


            1.First Inquiry.  The answer to this question depends in part upon the effect to be given to the following provision, originally enacted as § 19, subchapter 4, Article III, Title III, chapter 97, Laws of 1909:

            "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, the payment of interest upon all bonds issued for school purposes, and the creation of a sinking fund for the payment of such indebtedness, if any, and the county commissioners are hereby authorized and required to levy and collect such additional amount of funds, the same as other taxes:  Provided, That for the purpose of the purchase of school sites and the erection of buildings the board of directors of a district of the first class in cities having a population of fifty thousand or less, may annually expend a sum not exceeding $50,000; in cities having a population greater than 50,000 and less than 100,000, a sum not exceeding $100,000; in cities having a population greater than 100,000 and less than 200,000, a sum not exceeding $200,000, and for every additional 50,000 of population beyond 200,000 a further sum of $50,000:  And provided  [[Orig. Op. Page 3]] further, That when any greater expenditure shall be required for said purposes, in any one current school year, the question shall be submitted to a vote of the electors of the district at the time and place the board of directors may appoint.  The board of directors shall, previous to such election, designate in one daily paper published in the district, if there be one, if not, then in such weekly papers as may be selected by the board, the place or places where such election shall be held, the locality of the site or sites required and the proposed cost of the buildings to be erected thereon."

            The entire section was reprinted by subsequent codifiers as follows: Rem. & Bal. 1910, § 4512; Rem. 1915, § 4512; Rem. Comp. Stat. 1922, § 4809; Rem. Rev. Stat. 1932, § 4809.  A note to the section in Rem. Comp. Stat. points out that § 24, chapter 49, Laws of 1915 repealed any part of § 4512 in conflict with chapter 49.  The detailed budget provisions of chapter 49 at least rendered superfluous that part of the section preceding the provisos, if it did not work a repeal:  see §§ 4-10, chapter 49, Laws of 1915.  In chapter 131, Laws of 1923, general budget provisions for school districts were enacted, § 12 of that law repealing all laws in conflict therewith.  Shepard's Washington Citations (vol. 3, 1918-1927, p. 356) cites § 4809 as repealed and superseded by chapter 131.  In State ex rel. Lukens v. Spokane School District No. 81, 147 Wash. 467 (473), 266 Pac. 189, that portion of § 4809 which precedes the provisos was partially quoted; the remainder of the section being indicated by deletion punctuation, and apparently considered as still effective.  As indicated, the entire section was thereafter reprinted by Remington as RRS § 4809.  Our office treated the section as in forcein toto in an opinion to the State Auditor on August 15, 1946 (reprinted at page 990 of the Attorney General's Biennial Report for 1945-1946, as amended on November 8, 1946).  But only the provisos were introduced into the Revised Code of Washington, as RCW 28.62.200 and 28.62.210, with text slightly abridged.  The Reviser's notes of 1948 state that the rest of the statute was superseded by the budget law, citing the reader to RCW 28.59.040 et seq., derived from chapter 131, Laws of 1923.  Since a codifier's opinion will not affect the actual state of the law (seePetsch v. Willman, 29 Wn. (2d) 136, 185 P. (2d) 992), and since the Supreme Court has apparently considered the entire section to be valid law, at a time five years subsequent to the promulgation of  [[Orig. Op. Page 4]] the 1923 statute felt by Shepard's and the Code Reviser to supersede and repeal it (in theLukens case, supra, decided in 1928), we must assume that the full section is still in force (although possibly vestigial in part).  If valid, this assumption would remove doubt as to the validity of the provisos currently carried in RCW, which might otherwise be predicated upon the general proposition that when a basic provision of law expires the appended provisos die with it.  Further, while the first part of the section related to a collection of estimates prior to the tax levy, the provisos in terms apply to expenditures.  Apparently for this reason, the Code Reviser concluded that the provisos could stand independently as authority for and limitations upon certain kinds of expenditures.  We concur in that view.

            We would also note here that the provisions of RCW 28.58.120, 28.58.130, and RCW 28.59.130, restricting expenditures to those budgeted and permitting the directors of a district to budget a sum not exceeding one‑fifth of the taxable income of the district for purchase of a schoolhouse site, among other things, are in no way contradicted by RCW 28.62.200 and 28.62.210.  The latter two sections must be considered as supplementary.

            From what has been said, we conclude that RCW 28.62.200 and 28.62.210 are in force at the present time.

            We think it plain under the two sections last cited that the directors of a first class school district of appropriate population may expend the amounts fixed in subsection 28.62.200 without a vote of the electors.  If it had been intended to require a vote on all such expenditures subsection 28.62.210 would have been mere surplusage; and we have found no other section dictating such a result.  The language of theLukens case, supra, at p. 473 of 147 Wash., although somewhat loose, confirms this conclusion.

            The next problem presented is this: Is the authority granted to directors of a first class district by RCW 28.62.200 available to a first class district which does not include a first or second class city?  Under § 2, subchapter 2, Article I, Title III, chapter 97, Laws of 1909 (p. 264), only those districts containing either a city of the first or second class, or a city having sufficient population to become so classified, could be of the first class.  Any such district had the authority in question; it was given to all first class districts.  Under the law classifying cities, then, as now, the minimum population required was 10,001 inhabitants for a second class city; hence, for a first class district.  See RCW  [[Orig. Op. Page 5]] 35.01.020 and derivation note appended thereto, and RCW 28.57.140,infra.

            The last cited session law provision, classifying districts, was repealed by § 41, chapter 266, Laws of 1947; and § 9 of that act, now codified as RCW 28.57.140, provides in part that:

            "Any school district in the state having a population in excess of ten thousand, as shown by any regular or special census or by any other evidence acceptable to the county superintendent, shall be a school district of the first class."

            This makes no change in the minimum population requirement, which remains fixed at 10,001, but it allows establishment of first class districts which do not contain first or second class cities.  From the description given, the district here involved is of that kind.

            Section 1, chapter 266, Laws of 1947, sets out in detail a legislative intent to adjust the organization and classification of school districts to the changes in population and economic conditions occurring since previous laws on the subject were passed.  The obvious purpose of § 9 (RCW 28.57.140) was to permit districts with over 10,000 people to become first class districts.  Since districts with cities of that size were already first class districts, the law was directed toward districts like that now under consideration, in order to give them the powers of a first class district.

            RCW 28.62.200 gears the authority to spend money without a vote to the size of the first class district as measured by population.  Since first class districts after 1909 had to contain cities, it was natural and appropriate to adopt the language of the classification statute then in effect, mentioning the size of the cities.  Doubtless this was reasonable at the time, since few, if any, rural areas of a size amenable to a single school district then had 10,000 residents.  The legislature simply contemplated city districts.  Section 3, subchapter 2, Article I, Title III, chapter 97, Laws of 1909 (p. 265).  In the period of roughly forty years after 1909, large population groups settled in areas possibly near but not within the limits of cities.  This growth and change was specifically stated to be a basic reason for the 1947 statute.  Under present conditions it would be unreasonable and discriminatory to deny first class status to a district  [[Orig. Op. Page 6]] outside a city while granting it to a district of the same, or less, population within a city.  Our school district organization is based upon population, as the best index of needs and requirements, rather than upon mere geographical location.  We think that the failure of the legislature to amend RCW 28.62.200 in accordance with the 1947 district classification must be taken as an oversight, such as occasionally occurs when a statute affecting so many other prior laws is passed.  The existence of this problem, and the fact that the 1947 law was to be given full effect, are evidenced by § 41 thereof, repealing all other conflicting acts or parts of acts, after and in addition to three and one‑half pages of specific repealers.  Since RCW 28.62.200 is essentially based upon population classifications within the general category of first class districts, we think it should be read in that light alone.

            For the reasons stated in the foregoing discussion, we conclude that a first class district which contains no first or second class city may nonetheless avail itself of the authority to expend funds without a vote of its electors, according to its population, as prescribed in RCW 28.62.200.

            2.Second Inquiry.  The question is:  Must the ballot title in an election to authorize school construction bonds include a description of the property site?

            RCW 28.51.010 provides that the directors of any school district may borrow money and issue bonds for the purpose of erecting buildings when authorized by vote of the district.

            RCW 28.51.020 provides in part:

            "The question whether bonds are to be issued, shall be determined at an election to be held in the manner prescribed by law for holding annual school elections.  Notice therefor shall state the amount of bonds proposed to be issued, the time they are to run, and the purpose for which the money is to be used.  The ballots must contain the words 'Bonds, yes' and 'Bonds, no.'"

            It does not appear from your statement of the question whether a full legal description is contemplated or merely an informal designation of the site, for  [[Orig. Op. Page 7]] instance, by reference to a road intersection, etc.  We find nothing in the statute which requires a description of any nature.  We call your attention to the rather meager ballot employed by a district and upheld under the statute in Kinder v. School District No. 126, 68 Wash. 410, 123 Pac. 610.  In this connection,Parkinson v. Seattle School District No. 1, 28 Wash. 335, 68 Pac. 875, although decided in 1902, may be of some assistance, insofar as it holds that the notice of the election need not submit more than the statute requires to the voters.

            We conclude that a legal description of the property is entirely unnecessary; and that an informal description, although not inappropriate, is not required to be printed in the ballot title.

Very truly yours,

Attorney General

Assistant Attorney General