SCHOOLS ‑- ANNEXATION ‑- AUTHORITY OF BOARD OF DIRECTORS TO SIGN A PETITION FOR ANNEXATION ‑- PROPERTY AS COMPRISING A PART OF THE AREA TO BE ANNEXED

SCHOOLS ‑- ANNEXATION ‑- AUTHORITY OF BOARD OF DIRECTORS TO SIGN A PETITION FOR ANNEXATION ‑- PROPERTY AS COMPRISING A PART OF THE AREA TO BE ANNEXED

1) Under the provisions of RCW 35.13.130 the board of directors of a school district is not entitled to sign a petition for annexation.

(2) The property of the school district may comprise a part of the area to be annexed provided the value thereof does not enter into the computations prescribed by RCW 35.13.130.

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                                                                  January 24, 1961

Honorable Gordon L. Walgren
Prosecuting Attorney
Kitsap County
245 Fourth Street Building
Bremerton, Washington

                                                                                                                  Cite as:  AGO 61-62 No. 4

 Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on two questions which we paraphrase as follows:

            1.         Under the provisions of RCW 35.13.130, is the board of directors of a school district entitled to sign a petition for annexation?

            2.         If a board of directors is not entitled to sign a petition for annexation, may its property still comprise a part of the area to be annexed provided the value thereof does not enter into the computations prescribed by RCW 35.13.130?

            We answer your first question in the negative and your second in the affirmative.

                                                                     ANALYSIS

            RCW 35.13.130 provides as follows:

             [[Orig. Op. Page 2]]

            "A petition for annexation of an area contiguous to a city or town may be made in writing addressed to and filed with the council of the municipality to which annexation is desired.  It must be signed by the owners of not less than seventy-five percent in value, according to the assessed valuation for general taxation of the property for which annexation is petitioned, shall set forth a description of the property according to government legal subdivisions or legal plats and shall be accompanied by a plat which outlines the boundaries of the property sought to be annexed."  (Emphasis supplied.)

            There is no question but what the property of a school district is absolutely exempt from taxation.  The Fourteenth Amendment to the State Constitution reads:

            ". . . Such property as the legislature may by general laws provide shall be exempt from taxation.  Property of the United States and of the state, counties, school districts and other municipal corporations, . . .shall be exempt from taxation. . . ." (Emphasis supplied.)

            Although the constitutional exemption is self-executing (Puget Sound Power and Light Co. v. Cowlitz County, 38 Wn. (2d) 907, 234 P. (2d) 506 (1951)), the legislature has seen fit to reaffirm such exemption in RCW 84.36.010 as follows:

            "All property belonging exclusively to the United States, the state,any county ormunicipal corporation shall be exempt from taxation."  (Emphasis supplied.)

            A school district is a municipal corporation.  See,Maxon v. School Dist. No. 34, 5 Wash. 142, 31 Pac. 462 (1892); AGO 59-60 No. 129 [[to Prosecuting Attorney, Lewis County on July 1, 1960]]; and, AGO 59-60 No. 121 [[to Prosecuting Attorney, Klickitat County on June 2, 1960]].  Thus, at this juncture our inquiry becomes narrowed to that of ascertaining whether the owner oftax exempt property is entitled to sign a petition for annexation.

            Cases bearing upon the right of an owner of tax exempt property to sign a petition for annexation are collected in a brief annotation in 146 A.L.R. 1260.  In addition, there is the subsequent case ofAmerican Distilling Co. v. City Council, 202 P. (2d) 125 (1949).  The result in each instance, as stated in 146 A.L.R. at page 1261, ". . . depends entirely upon the language of the statute requiring the consent."

             [[Orig. Op. Page 3]]

            Under the provisions of RCW 35.13.130, supra, the statute "requiring the consent" here, only the owners of property which has an "assessed valuation for general taxation" purposes are entitled to sign a petition for annexation.

            Since school district property is tax exempt, it would seem to but naturally follow therefrom that such property could have no assessed valuation for taxation purposes, thereby precluding the school district from signing a petition for annexation.  In other words, we feel the language of RCW 35.13.130, manifests a legislative intent to confine the right to sign such a petition to those owners who bear the burden of taxation.

            We would feel perfectly justified in predicating our conclusion solely upon the foregoing reasoning if not for the confusing provisions of § 9, chapter 130, Laws of 1925, Ex. Sess. (Cf. RCW 84.36.220), which states in part:

            "At the time of making the assessment of real property, the assessor shall enter each description ofproperty exempt under the provisions of Section seven of this act, and value and list the same in the manner and subject to the same rule as he is required to assess all other property, . . ."  (Emphasis supplied.)

            Property exempted "under Section seven of this act" includes the property described in RCW 84.36.010, which, it will be recalled is the legislative version of the constitutional tax exemption provided for school district and other public property in the Fourteenth Amendment.  Thus, under the terms of § 9, just quoted it can hardly be denied that school district property is to be valued and listed and thus acquire an assessed valuation the same as property which is subject to taxation.  On the other hand, since the legislature, when it enacted § 9,supra, was presumably aware of the fact that school district property was absolutely exempt from taxation under the constitution, it can hardly be denied that the purpose in requiring such property to be given an assessed valuation was oneother than that oftaxation.

            A situation somewhat analogous to that presented here confronted the supreme court of Arizona inCity of Phoenix v. State of Arizona, 58 Ariz. 8, 117 P. (2d) 87 (1941).  In that case, the question was whether a high school district, whose property was tax exempt under the constitution, was entitled to sign a petition for annexation under a statute that required such petition to be signed by "the owners of not less than one‑half in value of the  [[Orig. Op. Page 4]] property in any territory contiguous to the city, as shown by the last assessment of said property."  In support of the contention that the school district was so entitled, it was argued that, in Arizona, the county assessor had the duty to value and list upon the assessment roll all real estate, regardless of its ownership, even though such property be exempt from taxes.

            In answer to this contention, the Arizona court stated:

            ". . . We think the true meaning of the assessment statutes is that it is only property which is or may under some circumstances be subject to taxation that may properly be made a part of the assessment roll, and that property whose ownership in and of itself exempts it from all taxation has no legal place on such a roll,although it may be that the assessor, for certain purposes not necessarily connected with taxation, has made a memorandum thereof upon the the physical roll prepared by him.  We think also upon general principles of justice and equity it is not to be presumed that the legislature intended that property which could not bear any of the burdens of annexation should be entitled to be heard upon the question."  (Emphasis supplied.) (p. 89)

            Similarly, under the assessment statutes of this state, the assessor is required to value and list school district property.  However, thepurpose of such requirement is clearly not related to taxation since the property is not subject to taxes.  Rather, the purpose, in our opinion, is to provide for the orderly administration of the assessor's duties with respect to the assessment of property that is subject to taxation.  Under this system,all the property within any given county is fully accounted for.  In this respect, it is to be noted that, under RCW 84.40.050, the assessor is required to reportboth taxable and tax exempt property to the state tax commission.

            Accordingly, it is our conclusion that a school district is not entitled to sign a petition for annexation since its property is tax exempt and has no assessed valuation for taxation purposes.

            Our conclusion here is in accord with a letter from this office dated November 18, 1952, to the prosecuting attorney of Benton County, wherein we advised him that the Kennewick School District was not entitled to sign a petition for annexation.  In addition, we feel it advisable to distinguish our conclusion here from AGO 51-53-210, dated January 14, 1952, to the prosecuting attorney of Wahkiakum County, wherein the following question was posed:

             [[Orig. Op. Page 5]]

            "May the board of directors of a school district petition for the annexation to the town of school property situated without the limits of the town without approval of the voters?"

            In answer thereto we stated:

            "Under the general powers and duties of the board of directors, § 4776 Rem. Rev. Stat., is included the power to take proper steps to administer school property for the best interests of the school district, which includes the right to petition a town for the annexation of school property situated without the town without prior approval of the voters."

            Both the question and the answer thereto assumed that a school district had the right to participate in a petition for annexation.  Based upon thisassumption, the opinion decided that the approval of the voters was not necessary to the validity of such action.  RCW 35.13.130, which governs annexations by the petition method was not even considered.  Suffice it to say that any language employed therein which purports to support the proposition that a school district is entitled to sign a petition for annexation is to be disregarded.

            Addressing ourselves to your second question, we are of the opinion that property owned by a school district may properly be included within an area to be annexed.  In this respect, the situation is no different from that involving property owned by the state.  In the past, this office has advised the Vice‑President of Washington State College and the Director of the Department of Finance, Budget and Business, by letters dated August 19, 1943, and March 24, 1947, respectively, that there was no legal objection to the annexation of state land by a municipality where such results from the normal operation of the annexation statutes.

            RCW 35.13.010 provides:

            ""Any portion of a county not incorporated as part of a city or town but lying contiguous thereto may become a part of the city or town by annexation:. . .  An area proposed to be annexed to a city or town shall be deemed contiguous thereto even though separated by water or tide or shore lands on which no bona fide residence is maintained by any person."  (Emphasis supplied.)

             [[Orig. Op. Page 6]]

            The statute prescribes the limitations as to what property may be annexed under either the election or the petition method provided for in chapter 35.13 RCW.

            In this instance, we are concerned with the petition method.  From our examination of the pertinent statutes and the general law on the subject, we see no reason why the property of a school district cannot be included within the area described in a petition filed pursuant to RCW 35.13.130, supra.  However, bearing in mind that such property has no assessed valuation for purposes of taxation, we hasten to add that the value of school property included therein may not be used in determining whether the petition satisfies the legislative requirements.

            In the nature of a postscript, we wish to point out that after a petition, which conforms to the requirements of RCW 35.13.130, supra, has been duly filed, a public hearing must be scheduled at which time interested persons may "appear and voice approval or disapproval of the annexation."  RCW 35.13.130.

            It is then provided in RCW 35.13.150, as follows:

            "Following the hearing, the council or commission shall determine by ordinance whether annexation shall be made.  They may annex all or any portion of the proposed area but may not include in the annexation any property not described in the petition.  Upon passage of the ordinance a certified copy shall be filed with the board of county commissioners of the county in which the annexed property is located."

            Thus, although a school district is not entitled to sign a petition for annexation, it is entitled to be heard upon the matter and thereby present its views for the council's consideration.  In all probability, the board of directors would desire to review very carefully any petition which includes property of the district in view of the possible effects upon the school district's boundaries.  See RCW 28.57.150.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

 DUANE S. STOOKEY
Assistant Attorney General