DISTRICTS ‑- SCHOOLS ‑- AUTHORIZATION BY VOTERS TO USE MONEY IN BUILDING FUND DERIVED FROM SPECIAL LEVY FOR GENERAL FUND PURPOSES ‑- VOTE REQUIRED

DISTRICTS ‑- SCHOOLS ‑- AUTHORIZATION BY VOTERS TO USE MONEY IN BUILDING FUND DERIVED FROM SPECIAL LEVY FOR GENERAL FUND PURPOSES ‑- VOTE REQUIRED.

(1) Electors of a school district may authorize, at a special election, the use of monies in the building fund (derived from a special levy but not necessary for immediate expenditure) for general fund purposes.

(2) If the school district desires to use the money in the building fund for general fund purposes the matter must be resubmitted to the voters and their approval must be tested by the requirements of the 17th Amendment and RCW 84.52.052.

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                                                                 August 30, 1961

Honorable R. A. Hensel
Prosecuting Attorney
Douglas County
Waterville, Washington

                                                                                                                Cite as:  AGO 61-62 No. 59

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on several questions concerning the use of school funds.  We paraphrase your questions as follows:

            (1) May the electors of a school district at a special election authorize money in the building fund to be used for general fund purposes where said money was derived from a special excess levy for building purposes?

            (2) If question (1) is answered in the affirmative, is a majority vote all that is required to authorize said use?

            We answer question (1) in the affirmative‑-question (2) in the negative.

                                                                     ANALYSIS

            You have advised us of the following facts giving rise to your request for our opinion: That the Eastmont School District in Douglas county at a special election authorized in 1960 an excess levy which produced $70,000 for its building fund; that it now appears the  [[Orig. Op. Page 2]] growth in the district has leveled off so that the extra classrooms are not needed at the present time and will not be needed until 1964-65; that inasmuch as the district cannot balance its 1961-62 general fund budget without a special levy, the question has arisen as to whether the residents of the district could legally vote to use the money in the building fund for general operating expenses, and if this question is answered in the affirmative what voting percentages will govern to determine the validity of said election.

            As you are aware, 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 the municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934); see, also, State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934), and RCW 28.58.010.

            In AGO 57-58 No. 51 [[to Prosecuting Attorney, Spokane County on April 22, 1957]], this office stated:  "It is well settled that when the electors of a taxing district have authorized an indebtedness to be incurred by the sale of bonds for a specific purpose or haveauthorized the imposition of a tax levy for a specific purpose, the proceeds from the sale of bonds or the imposition of the tax levy cannot be expended for any purpose other than the purpose for which authorized.  Sheldon v. Purdy, 17 Wash. 135, 141;Thompson v. Pierce County, 113 Wash. 237, 241.  In this state the general rule is reinforced by Article VII, Section 5 of the state constitution . . . which provides that every law imposing a tax shall state distinctly the object of the same 'to which only it shall be applied.'"  (Emphasis supplied.)

            Likewise in an early opinion to the prosecuting attorney, Snohomish county, dated February 8, 1924, this office concluded that when funds are raised by taxation for a designated purpose, they cannot be diverted to some other use.  However, therein we recognized:

            "It follows that the funds raised by the special levy for the purchase of play grounds cannot lawfully be diverted to the general fund.  This limitation, however, operates only upon the school district officers anddoes not, in our opinion, prevent the electors of the district from authorizing the use of the playground levy for general school purposes."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            In a later opinion written to the Honorable A. E. Edwards, November 14, 1946, this office discussed the power of the electors of a district to rescind an excess levy for one purpose and to authorize the use of the funds for another purpose.  Therein we stated:

            ". . . In considering a similar question, the Iowa Supreme Court has said:

            "'* * * Appellant contends that, having once voted the tax, the electors have no power of rescission.  It is fundamental that electors of a district township can only exercise such powers as are conferred by statute, either expressly or by reasonable implication.  Washington v. Thomas (1882) 59 Iowa 50, 12 N.W. 767.  By § 2749 of the Code of 1897, they are given power "to vote a schoolhouse tax, not exceeding 10 mills on the dollar in any one year, for the purchase of grounds, construction of schoolhouses, the payment of debts contracted for the erection of schoolhouses," etc.  Having the power to vote the tax, they, by necessary implication, have the right to rescind that vote, unless by so doing they interfere with vested rights.  Power to do necessarily implies the power not to do; so that, having voted at one regular annual meeting to vote a schoolhouse tax, they may, at a subsequent meeting, vote not to levy a tax, unless, as we have said, some vested right has intervened.  * * *'  Hibbs v. Adams Township (1900), 110 Iowa 306, 81 N.W. 584, 48 L.R.A. 535.

            ". . .

            "There being no vested right which would be impaired by the school district rescinding its original grant of authority and substituting another therefor, it is the opinion of this office 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 their authorization to the school board for the construction of a schoolhouse by voting to use the proceeds of the taxes previously authorized for the purpose of enlarging existing school house facilities.  The opinion of June 24, 1946, hereinbefore referred to, is overruled."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            At this point, it should be noted that the money with which we are here concerned was derived from a special excess levy authorized by a vote of the people.  Under the 17th Amendment to the Washington State Constitution, and RCW 84.52.052, the imposition of such a levy could only be authorized by a vote of 40 percent of the people in the district who voted at the preceding general election, and of those voting on the proposition, 60 percent must have voted in favor thereof.  See, AGO 59-60 No. 120 [[to Prosecuting Attorney, Kitsap County on May 31, 1960]].

            In the recent case ofDavis v. Seattle, 56 Wn. (2d) 785, 355 P. (2d) 354 (1960), our court was presented with the question of determining whether a proposition referred to the voters of the city of Seattle, pursuant to the city charter, was passed when a majority of the people voting thereon, voted in favor thereof.  The proposition was to authorize the use of certain funds, derived from a bond issue and payable fromexcess levies, for a purpose other than that originally approved.  In the cited case the court concluded that the election formula contained in Article VIII, § 2, Amendment 17, of the Washington State Constitution, was not applicable to thereferendum election since once the increase in taxes exceeding the 40-mill limit had been approved and the taxing district had been obligated on the bonds, the protection of the 17th Amendment had operated for the protection of the taxpayers.

            In our opinion, the basis of the court's decision lies in the referendum election authorized by the charter of Seattle.  For that reason, we do not feel that the reasoning of that case is applicable to the instant situation.

            The opinion of the court in the Davis case, supra, a five‑four decision, is one which we feel must be restricted to the facts of the particular case.  Both the majority and dissenting opinions recognized the general principle of law that a measure approved by the voters cannot be changed by another public body, i.e., the measure can be changed by no less authority than that which called it into being.  See, State ex rel. Ausburn v. Seattle, 190 Wash. 222, 67 P. (2d) 913 (1937);State ex rel. Leo v. Tacoma, 184 Wash. 160, 49 P. (2d) 1113 (1935);State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P. (2d) 602 (1935);State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P. (2d) 1020, 33 P. (2d) 905 (1934); Stetson v. Seattle, 74 Wash. 606, 134 Pac. 494, (1913).

            We feel that the following language found in the dissenting opinion written by Judge Rosellini is applicable to the instant case: (Davis v. Seattle, supra, 798)

            ". . . If the rule that a change cannot be made without the authorization of the voters means  [[Orig. Op. Page 5]] anything at all, it means that the question must be referred back to those who authorized the levy, and their approval must be voiced with the same authority.  While amendment 17 does not expressly require that an amendment to a special levy be approved in the same manner as the original levy, this requirement is found in the rule of law and is consistent with the dictates and in harmony with the spirit of that provision of the constitution."  (Emphasis supplied.)

            Accordingly, it is the opinion of this office that if the school district desires to use the money in the building fund for general fund purposes, the matter must be resubmitted to the voters and said authorization must be tested by the requirements of the 17th Amendment and RCW 84.52.052.

            At this time we specifically overrule the opinion written by this office to the Honorable D. J. Cunningham, Prosecuting Attorney, Lewis County, dated August 24, 1949 [[Opinion No. 49-51-113]], in so far as it conflicts with the views expressed herein, wherein we held that a simple majority vote would be all that was required to authorize a diversion of funds derived from a special excess levy election.

            In passing, it should be mentioned that we have considered the various arguments under which the rule of the Davis case, supra, could be held controlling in this instance.  However, since we are here concerned with funds derived from a special tax levy which was voted for aparticular purpose, we feel any doubts as to whether the formula prescribed by the 17th Amendment is to be followed should be resolved in favor of its application.  If the proposition is submitted to the people and passes by a mere majority vote, the district may desire to have this matter submitted to the court.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General