PROSECUTING ATTORNEY ‑- DUTIES ‑- REPRESENTATION OF SCHOOL DISTRICTS ‑- REPRESENTATION OF TRUSTEE OF CHARITABLE TRUSTS CREATED FOR BENEFIT OF SCHOOL DISTRICTS ‑- CHARITABLE TRUSTS, ATTORNEY GENERAL...

PROSECUTING ATTORNEY ‑- DUTIES ‑- REPRESENTATION OF SCHOOL DISTRICTS ‑- REPRESENTATION OF TRUSTEE OF CHARITABLE TRUSTS CREATED FOR BENEFIT OF SCHOOL DISTRICTS ‑- CHARITABLE TRUSTS, ATTORNEY GENERAL AS PROPER PARTY ‑- VENUE OF ACTION TO ENFORCE.

It is the duty of a County Prosecuting Attorney to represent a school district in litigation.

It is not the duty of a County Prosecuting Attorney to represent a member of a school board in his capacity as trustee under a charitable trust wherein the school district is the beneficiary.

It is the duty of the County Prosecuting Attorney to represent a school district seeking to enforce a charitable trust wherein it is the beneficiary.

In an action to enforce a charitable trust, the Attorney General of the state of Washington is a proper party.

In a proceeding to enforce a charitable trust created for the benefit of a school district, in which the Attorney General is made a party, the venue need not be laid in Thurston County.

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                                                                  March 14, 1951

Honorable Keith O. Yates
Prosecuting Attorney
Columbia County
Dayton, Washington                                                                                                 Cite as:  AGO 49-51 No. 472

Dear Sir:

            By letter of February 1, 1951, you state that the Marcel Pietrzycki testamentary trust was created for the purpose of establishing and maintaining a "trade school" in connection with Dayton School District # 2.  You indicate that it is contemplated that proceedings will be instituted either on behalf  [[Orig. Op. Page 2]] of the school district or on behalf of one of the trustees who is also a member of the school board, in an attempt to secure application of the corpus of the trust to the trust purposes.  You further state that:

            "In view of RRS 116, RRS 4132, and Bates v. School District No. 10, 45 Wash. 498, my duty is not clear."

            You request our opinion on the following questions:

            1.         "Is it the duty of the County Prosecuting Attorney to represent a school district in litigation?

            2.         "Is it the duty of the County Prosecuting Attorney to represent a member of the school board in his capacity as trustee under a charitable trust wherein the school district is the beneficiary?

            3.         "Is it the duty of the County Prosecuting Attorney to represent a school district seeking to enforce a charitable trust wherein it is the beneficiary?

            4.         "In an action to enforce a charitable trust is the Attorney General of the state of Washington a necessary party?

            5.         "In an action to enforce a charitable trust by a school district in which the Attorney General of the state of Washington is made a party, must the venue be laid in Thurston County?"

            You are advised that:

            1. It is the duty of a County Prosecuting Attorney to represent a school district in litigation.

            2. It is not the duty of a County Prosecuting Attorney to represent a member of a school board in his capacity as trustee under a charitable trust wherein the school district is the beneficiary.

             [[Orig. Op. Page 3]]

            3. It is the duty of the County Prosecuting Attorney to represent a school district seeking to enforce a charitable trust wherein it is the beneficiary.

            4. In an action to enforce a charitable trust, the Attorney General of the state of Washington is a proper party.

            5. In a proceeding to enforce a charitable trust created for the benefit of a school district, in which the Attorney General is made a party, the venue need not be laid in Thurston County.

                                                                     ANALYSIS

            Under Rem. Rev. Stat. 116, it is expressly provided that it shall be the duty of the Prosecuting Attorney of each county " * * * to appear for and represent * * * all school districts in the county in which he is a prosecuting attorney, in all * * * civil actions and proceedings in such county in which * * * such school district is a party."

            It would seem clear, therefore, that the primary duty to represent a school district rests with the County Prosecuting Attorney.  This was recognized in the case ofState ex rel. Dysert v. Gage, 107 Wash. 282, where it was held that under the facts of that particular case, the Prosecuting Attorney being disqualified, the school district has the right to employ special counsel.

            The case ofBates v. School District, 45 Wash. 498, 88 Pac. 944, referred to by you, was decided in 1907 and prior to the enactment, in 1911, of section 11l in its present form.  In the Bates case, the court had under consideration a statute much narrower in scope than section 116 in its provisions relating to the duties of a Prosecuting Attorney.

            The duty of the Prosecuting Attorney, as imposed upon him by the statute, does not require him to represent the trustees of a charitable trust.  The fact that one of such trustees is also a member of the board of the school district, which is a beneficiary of the trust, would not, in our opinion, enlarge the scope of the duty of a prosecuting attorney.

            Representation of a school district in the enforcement of a charitable trust in which such school district is a beneficiary, is, we believe, within that class of representation required of the prosecuting attorney.

             [[Orig. Op. Page 4]]

            As to your fourth inquiry, we call your attention to the case ofKenney Presbyterian Home v. State, 174 Wash. 19, 24 P. (2d) 403, involving the enforcement of a charitable trust created for the purpose of establishing a home for the aged, where the state of Washington was made a party defendant.  The court there said:

            "The state of Washington was made a party defendant as the home is a public charity."

            InReagh v. Hamilton, 194 Wash. 449, 78 P. (2d) 555, the court cited theKenney Presbyterian Home case as authority for its ruling that the Attorney General is a proper party in an action to construe a charitable trust.  It would appear, therefore, that in any proceeding involving the construction or enforcement of a charitable trust, the Attorney General, as representing the public interest, is a proper party.

            With respect to the question of venue raised by your last question, Rem. Rev. Stat. 886, with certain exceptions as to certain actions involving real property, provides that any person or corporation having any "claim" against the state of Washington, shall have a right of action against the state in the Superior Court of Thurston County.  Our Supreme Court has held that, when applicable, Rem. Rev. Stat. 886 is a statute of jurisdiction rather than merely one of venue.  State ex rel. Thielicke v. Superior Court, 9 Wn. (2d) 309, 114 P. (2d) 1001.

            It is to be noted that in the Reagh case, supra, the action was commenced in King County and later transferred to Thurston County.  InTownsend v. Schalkenback Home for Boys, 33 Wn. (2d) 255, 205 P. (2d) 345, involving a charitable trust and in which the Attorney General was a party, the suit was brought and maintained in the Superior Court of King County.  The question of the application of the requirement of section 886 that actions on claims against the state must be brought in the Superior Court of Thurston County was not raised or discussed in either the Reagh or theTownsend case.  However, inasmuch as the question is one of jurisdiction, these two cases would strongly indicate that a proceeding to construe or enforce a charitable trust is not such a proceeding as falls within the mandate of section 886.  Distinction is made between those cases in which the interest of the state is of a general nature and those cases in which state funds are involved and the state has "a real, direct and positive interest."  State ex rel. Pate v. Johns, 170 Wash. 125, 15 P. (2d) 693.

             [[Orig. Op. Page 5]]

            We are, therefore, of the opinion that a proceeding to construe or enforce a charitable trust created for the benefit of a school district, and in which the Attorney General is made a party, does not involve a claim against the state or involve funds of the state so as to require that the action be brought in Thurston County Superior Court.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General