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Bob Ferguson

AGO 1950 No. 242 - Mar 23 1950
Attorney General Smith Troy


A majority vote of the electors is sufficient to authorize construction of a school building on a site previously selected where the existing site which will be abandoned was selected by a district which included only part of the area and voters of the present district.

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                                                                  March 23, 1950

Honorable Lawrence Hickman
Prosecuting Attorney
Whitman County
Colfax, Washington
                                                                                                              Cite as:  AGO 49-51 No. 242

Dear Sir:

            We have your letter of February 2, 1950, requesting an opinion from this office on the following question:

            Does a proposition authorizing a school district of the second class to build a grade school sufficient in size to accommodate all grade school pupils of the district, upon a site previously selected by the electors as a high school site require a two-thirds majority vote where such construction will necessarily mean the abandonment of existing grade school sites and buildings which had been selected and built under authority of the electors of a district which included only part of the area and voters of the present district?

            Our conclusion may be summarized as follows:

            Such a proposition requires only a majority vote to authorize the proposed construction.


            Between March 3, 1945, and November 19, 1949, eight elections have been held in Colfax School District No. 300 in an attempt to establish a building program adequate for its needs and satisfactory to its citizens.  You inquire whether the latest of these elections authorizes construction of a grade school on a particular site, which will eventually replace now existing grade school facilities.

             [[Orig. Op. Page 2]]

            It is within the power of school districts generally, to rescind or amend by subsequent elections authority granted under previous elections.  We have held in an opinion of November 14, 1946, to the Honorable A. E. Edwards, State Senator, that the electorate of a school district which has voted a tax levy, the proceeds of which were to be used by the school board for building a schoolhouse, may subsequently rescind its authorization by voting to use such proceeds for the purpose of enlarging existing facilities.

            The Iowa court has decided that having approved by vote the levy of a schoolhouse tax, the electors may subsequently withdraw that authority where no vested rights have intervened.  SeeHibbs v. Adams Township, 110 Iowa 306, 81 N.W. 584.  In the case of In re Eiss, 199 N.Y.S. 544, the court held in overruling an earlier decision, that:

            "It is elementary that any legislative body may reconsider and amend a proposition once adopted, if no person or any vested interest is affected thereby (Denton v. Jackson, 2 Johns. Ch. 320, 331; Allen v. Inhabitants of Taunton, 19 Pick. [Mass.] 485); and where the legislative power resides in the body of the voters, they may take such action.  This has been frequently done in town meetings and held valid."

            Although our own court has not passed on the question, we are aware of no authority holding that an electorate may not rescind or amend expressly or by implication what has been authorized as a proper subject of its local legislative power.  In the absence of intervening vested rights, the latest electoral mandate shall control insofar as it is in conflict with or inconsistent with earlier ones.  To proceed with the analogy of legislation one degree further, it may be said that successive elections, like successive statutes, should as far as possible be interpreted as compatible.

            On that premise, we shall consider the effect of the successive elections referred to above.  The first of these was held in March, 1945, authorizing a bond issue for the purpose of constructing new buildings and acquiring school sites.  The second election in March, 1946, authorized the acquisition of what shall hereafter be referred to as the Morton Street site and directed the district officers to transfer the high school from its then present location to the Morton Street site.  It may be noted here that the latest election, to which we shall refer in more detail below, was concerned with a tract of real estate somewhat less in area than, though substantially the same as that acquired by virtue of the second election, and  [[Orig. Op. Page 3]] for that reason, we shall consider the property involved as the same site.  The next ballot failed to receive a sufficient majority and the fourth authorized an additional tax levy for school purposes.  In the election of May 15, 1948, the voters approved construction of two new grade school buildings to be built upon the existing grade school sites.  The next proposition failed to pass, and the seventh election of May 28, 1949, authorized construction of a grade school on the Morton Street site, as well as two new grade schools on the existing grade school sites.  The latest election was held November 19, 1949, in which a majority of the voters approved the following proposition:

            "Shall Colfax School District No. 300, Whitman County, State of Washington, acting through its Board of Directors, be authorized to build a grade school building upon the Morton Street site of a size sufficient to accommodate all pupils of said district up to and including the 8th grade, according to such plans and specifications as may be obtained and adopted by the said Board, and to pay the cost of constructing said building, together with plans and specifications, water and sewer connections, equipment and furnishings, and the preparation of said site for said building and for school purposes from any money in the building fund of said district, including any money heretofore received from the sale of bonds and any money to be received from any special levy heretofore voted: Said Morton Street site is more particularly described as follows:"  (Description omitted.)

            You have advised us that the proposed construction would necessarily mean the abandonment of the other grade school buildings and sites.  We agree with your interpretation that, at least by implication, the proposition of November 19, 1949, authorizes a change in school site.  The answer to your question then depends upon whether the change would be within the statutory language and meaning of Chapter 97, p. 300, Laws of 1909, as last amended by Chapter 289, section 1, Laws of 1927, (Rem. Rev. Stat. 4819), which section provides as follows:

             [[Orig. Op. Page 4]]

            "The board shall build or remove schoolhouses and teachers' cottages, purchase or sell lots or other real estate when directed by a vote of the district to do so and where the district shall possess a schoolhouse upon a site owned by such district the board may by unanimous vote of all the members thereof purchase or lease additional real estate adjacent to such site; provided, that a schoolhouse, or other building, already built on a site which has been selected by a majority vote of the legal school electors of a district shall not be removed to a new site without a two-thirds vote of the school electors voting at an annual or special election; nor shall a schoolhouse site that has been selected by a majority vote of thelegal school electors, but upon which no schoolhouse has been built, be changed except by a two-thirds vote of the legal school electors voting at an annual or special election as hereinbefore provided."  (Emphasis supplied).

            Without discussing whether the proposed change is among the situations anticipated by the statute, we think that the emphasized portions of the statute refer to the electors of the district as it is presently constituted.  The existing grade school buildings and sites were built and selected by the voters of Colfax School District No. 1.  The history of the dissolution and reorganization of the original district discloses that by June 3, 1938, Colfax School District No. 1 had ceased to exist.  During its evolution to the present District No. 300, several other districts were involved and subsequent changes in territory and electors were effected.

            In an opinion of July 15, 1946, to the Prosecuting Attorney of Adams County, this office held that where a site had been selected by a district prior to its reorganization into a consolidated district, the selection by the electors of the former district did not bind the electors of the new district or its directors.  The requirement of a two-thirds vote under Rem. Rev. Stat. 4819 to change a school site selected by majority vote was considered to refer to a majority vote of the electors of the consolidated district, and to have no application when the electors of the consolidated district had not themselves selected the site.

            We agree with the conclusion expressed in that opinion and consider the reasoning therein applicable to the situation with which we are immediately concerned.  Although the Colfax School District No. 300 is a consolidated district, it is an entity separate from the original district.  Accordingly, we  [[Orig. Op. Page 5]] are of the opinion that the election of November 19, 1949, authorized and directed the directors of the district to proceed with such construction as the proposition contemplated.  The district taxpayers are of course not concluded by this opinion but may get a final determination from the court in an appropriate proceeding.

Very truly yours,

Attorney General

Assistant Attorney General