SCHOOLS - FEDERAL FOREST FUND PAYMENT - ALLOCATION BY COUNTY COMMISSIONERS, COUNTY SUPERINTENDENT AND SCHOOL DIRECTORS

SCHOOLS - FEDERAL FOREST FUND PAYMENT - ALLOCATION BY COUNTY COMMISSIONERS, COUNTY SUPERINTENDENT AND SCHOOL DIRECTORS.

After Federal Forest Funds have been allocated by the county commissioners to the county superintendent who apportions them to the school district, the board of directors of the district is the only agency having the power or discretion to direct the use of such funds for specific school purposes.

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                                                               November 20, 1959

Honorable Lloyd J. Andrews
State Superintendent of PublicInstruction
Old Capitol Building
Olympia, Washington                                                                                     Cite as:  AGO 59-60 No. 86

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question relating to the use of Federal forest funds by school districts.  We paraphrase your inquiry as follows:

            Is the board of directors of a school district the only agency having the power or discretion to limit or direct the use of federal forest payments forspecific school purposes after the funds have been apportioned to the district by the county superintendent from those funds made available by the county commissioners?

            We answer the question in the affirmative as qualified hereinafter in our analysis.

                                                                     ANALYSIS

            At the outset, we deem it advisable, if not necessary, to discuss briefly the federal and state laws, and amendments thereto relating to the distribution and use of Federal forest reserve payments and some of the court decisions and opinions of this office wherein these laws have been interpreted.

             [[Orig. Op. Page 2]]

            Under § 500, Title 16 of the United States Code Annotated, the Congress has directed that twenty-five per cent of all moneys received by the Federal government during any fiscal year from each national forest shall be paid to the state wherein the forest is located ". . . to be expended as the State legislature may prescribe for the benefit of the public schools and the public roads of the county or counties in which such national forest is situated".  (Emphasis supplied)

            In accordance with the authorization of the federal act our legislature enacted chapter 185, Laws of 1907 which, in so far as it is pertinent, reads as follows:

            "County commissioners of the respective counties to which the money is distributed are hereby authorized and directed to expend said money [federal forest funds] for the benefit of the public schools and public roads thereof, and not otherwise."

            One of the first problems which arose in connection with the distribution of the forest funds was whether the county commissioners were required to make equal distribution between the two purposes named, to-wit: (1) schools, and (2) roads.  In Everett School Dist. No. 24 v. Pearson, 261 F. 631 (1918) the federal district court held that the schools and roads of the county involved were entitled to share equally in the fund.  However, in the later case of King County v. Seattle School Dist. No. 1, 263 U.S. 361, 44 S.Ct. 127, 68 L.Ed. 339, (1923) reversing C.C.A. 1922, 278 Fed. 46, the United States Supreme Court concluded that equal apportionment between schools and roads was not required under the federal act and that it was within the power of the state legislature to determine how moneys should be divided between the two purposes stated.  The court stated:

            "When turned over to the State, the money belongs to it absolutely.  There is no limitation upon the power of the legislature to prescribe how the expenditures shall be made for the purposes stated, though, by the act of Congress 'there is a sacred obligation imposed on its public faith.'  (Citations omitted) No trust for the benefit of appellee [Seattle School Dist. No. 1] is created by the grant.  But, assuming the moneys paid over to the State are charged with a trust that there shall be expended annually one half for schools and one half for roads, the appellee has no right to enforce the trust.  Congress alone can inquire  [[Orig. Op. Page 3]] into the manner of its execution by the tate. . . ." (Emphasis supplied)

            As could be expected, the Attorney General has been called upon several times to construe the above acts.  In respect to the distribution of funds, the former opinions of this office beginning with an opinion issued in 1915 are summarized in an opinion written to the State Superintendent of Public Instruction, dated March 4, 1941.  Therein, we recognized the holding of the court in the Seattle School District case, supra, and based our opinion thereon.

            We, therefore, concluded that the county commissioners had the power in the exercise of the discretion vested in them by the legislature, to determine the amount of funds to be devoted to schools and/or county roads.  At this time, we adhere to the views expressed therein.

            The next significant opinion rendered by this office on this subject was in 1946.  In this opinion, written to the State Auditor (dated February 14, 1946) we ruled that under § 2, chapter 185, Laws of 1907, supra, Federal forest reserve funds could not be used by a school district for building purposes but had to be placed in the current expense fund for current operating expenses.  Thereafter, presumably because of that opinion, the legislature, at its 1949 session, passed § 1, chapter 131, Laws of 1949, (cf. RCW 36.33.110) amending § 2, chapter 185, Laws of 1907,supra.  This section,which is the law at the present time, reads as follows:

            "County Commissioners of the respective counties to which the money is distributed are hereby authorized and directed to expend said money for the benefit of the public schools,including school maintenance and building purposes, and the public roads thereof, and not otherwise."  (The emphasis suppliedindicates the amendment)

            On the basis of this legislative pronouncement, this office in an opinion written to the Honorable Raymond C. Sly, Prosecuting Attorney, Skamania County, dated May 31, 1949 [[Opinion No. 49-51-49]], concluded:

            "The new act clearly contemplates that school districts may use the forest reserve funds for building purposes after the effective date of the act, namely, June 9, 1949.  While it is true that prior to June 9, 1949, those funds could not be used for building purposes, they may be so used after that date, . . ." (Emphasis supplied)

             [[Orig. Op. Page 4]]

            The foregoing chronological review brings us up to the present time and the question now submitted for an opinion of this office:

            Is the board of directors of a school district the only agency having the power or discretion to limit or direct the use of federal forest payments forspecific school purposes after the funds have been apportioned to the district by the county superintendent from those funds made available by the county commissioners?

            In order to resolve this question and, at the same time, to formulatea reasonable rule of action for the various officers involved in the distribution and administration of the forest funds, we consider it necessary to determine the nature and extent of the power vested by the legislature in the county commissioners, the county superintendent of schools and the board of directors of the individual school districts.  On the basis thereof, our conclusions must necessarily follow:

            (1)Board of County Commissioners

            As previously stated, the county commissioners are expressly authorized under § 1, chapter 131, Laws of 1949 (cf. RCW 36.33.110) to expend federal forest reserve payments for the benefit of the public schools "including school maintenance and building purposes" and for county roads.  Furthermore, equal division of the funds between the two purposes is not required.  King County v. Seattle School Dist., supra.

            Although we believe that the legislature intended in 1949 to give to the school districts in the county the right to elect the specific school district fund (current operating fund or building fund) into which its apportionment of the federal forest funds should be deposited, such intent does not appear from the language used.  The power to expend the funds for the public schools, including school maintenance and building purposes, is granted to the county commissioners and not the local school districts.  This conclusion is certainly implied in our opinion written to the Prosecuting Attorney, Skamania County, dated May 31, 1949, a copy of which is attached hereto for your consideration.  Since the language of the statute itself is plain, free from ambiguity and devoid of uncertainty, the meaning evidenced thereby must be given effect.  SeeState v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949); State ex rel. Wash. Etc. Bank v. Bellingham, 8 Wn. (2d) 233, 111 P. (2d) 781 (1941).

            Thus, the county commissioners, under § 1, chapter 131, Laws of 1949 (cf. RCW 36.33.110)supra, not only have the power to determine what portion of the federal forest funds are to be expended for the public  [[Orig. Op. Page 5]] schools in the county but also the power to divide the funds set aside for the public schools between the current operating expense fund and the building fund.  In this connection it should be noted that in a memorandum opinion the Superior Court of Mason County in the case ofSchool District No. 10 v. S. E. Smith, Treasurer of Mason County et al, No. 5551, the court, in discussing the above statute, stated:

            "The statute involved in this litigation is plain and requires no construction.  If the Legislature had desired to require any particular method of apportionment, it could have done so either at the time of the original passage of the act, or in 1949 when the original act was amended.

            "The county commissioners clearly have the right not only to make any allocation they desire, as between roads and schools, but also to use the school money in any way they see fit,as long as it is used for school purposes."  (Emphasis supplied)

            Being cognizant of the above decision of the superior court (which was not appealed to the State Supreme Court) and of the fact that the statute makes no provision for the apportionment among the various school districts in the county of the funds set aside for the public schools, the commissioners nevertheless may deem it advisable, for the sake of uniformity, to follow the rule found in 78 C.J.S., Schools and School Districts, § 21, p. 648:

            "Where a statute provides for the devotion of a particular fund to school purposes without prescribing the manner in which it shall be distributed or apportioned, distribution should be made in the same manner as is provided for other school funds."  (Emphasis supplied)

            See also,Romero v. Board of Education, 10 N.M. 67, 61 Pac. 109 (1900).

            Before proceeding to discuss the ordinary method for apportionment of school funds, we desire that it be clearly understood that although it is our opinion that the county commissioners have the power to control the apportionment of the funds and to divide the federal forest funds set aside for school purposes between the current operating expense fund and the building fund,they need not exercise this power.  They may properly leave the apportionment of the funds to the county superintendent and the determination of the specific use of the funds to the local boards of directors.

             [[Orig. Op. Page 6]]

            (2)County Superintendent of Schools

            Among the general powers and duties of the county superintendent of schools, we find that the legislature has directed that he "shall apportion school funds."  See § 7 (14), chapter 216, Laws of 1959, (cf. RCW 28.19.060).  See also, RCW 28.48.030.  Therefore, if and when the county commissioners have exercised their discretion and have allocated any portion of the forest reserve funds to "public schools", the funds unquestionably become "school funds" within the above statute and, thereafter, it is the duty of the county superintendent to apportion said moneys to the districts entitled thereto.  This is true whether the funds are merely set aside for the benefit of the "public schools" or whether the county commissioners make a division between the current operating expense fund and the building fund.

            This conclusion is in accord with the views expressed by this office in: AGO No. 2898, written to the Honorable N. D. Showalter, Superintendent of Public Instruction, dated January 23, 1933; AGO written to the Honorable Lowell B. Vail, Prosecuting Attorney, Grant County, dated June 17, 1939; AGO written to the Honorable Pearl A. Wanamaker, State Superintendent of Public Instruction dated March 4, 1941; AGO written to the Honorable Cliff Yelle, State Auditor, dated February 14, 1946 [[1945-46 OAG 603]].  Although some of the statutes discussed in the foregoing opinions have been amended, we do not believe any of the amendments evidence an intent on the part of the legislature to withdraw from the county superintendent the duty of apportioning the federal forest funds made available by the county commissioners for the schools in the county.

            The apportionment of the funds to the district should be made by the county superintendent in accordance with the provisions of chapter 28.41 RCW which governs the apportionment of state funds.  See AGO written to the Honorable Pearl A. Wanamaker, supra.  The county superintendent in making the apportionment has no authority to direct in to which fund the federal moneys are to be placed unless he is acting under the direction of the county commissioners.  His duty is merely ministerial.

            (3)School District Board of Directors

            The governing body of a school district is the board of directors (RCW 28.58.080;State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94,) and, upon receipt of its apportionment of federal forest funds, the determination of how these funds can be utilized in the best interest of the district as a whole, must be made by it if not directed by the county commissioners.  We believe this is within the intent and purpose of the amended statute enacted by the legislature in 1949.  The funds may be deposited in whole or in part in either the current operating expense fund or in the building fund.  See AGO written to the Prosecuting Attorney, Skamania County, dated May 31, 1949 [[Opinion No. 49-51-49]].

             [[Orig. Op. Page 7]]

            For your convenience we summarize our conclusions as follows:

            (1) The county commissioners have the authority, in the exercise of their discretion, to determine the division of federal forest funds between the public schools, (including maintenance and building purposes) and county roads.

            (2) The county superintendent of schools has the duty of apportioning among the school districts in the county any funds set aside by the county commissioners for the benefit of the public schools.  The apportionment should be made on the same basis on which state apportionment is allowed.  The county superintendent has no authority to direct how these funds are to be used, unless acting as agent of the county commissioners.

            (3) The board of directors of a school district may use any funds apportioned by the county superintendent for either current operating expenses or it may place the whole or any part of the amount apportioned into the building fund, unless the county commissioners have made some division between the funds prior to apportionment by the county superintendent.

            In passing it should be pointed out that the conclusions stated herein are not to be construed so as to relieve, or affect in any way, the duty imposed upon the board of directors of a school district by the legislature to comply with the general laws relating to the budgeting and appropriation of funds or with the rules and regulations promulgated by the State Auditor for the accounting thereof.

            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