Seattle School District No. 1 v. State

585 P.2d 71, 90 Wash. 2d 476, 1978 Wash. LEXIS 1111

• Court: Washington Supreme Court
• Decided: September 28, 1978
• Docket: 44845
• Status: Published

Opinions

Stafford, J.

This appeal arises from a judgment of the trial court declaring unconstitutional the State's reliance upon special excess levy funding for discharging its paramount duty to make ample provision for the education of its resident children as required by Const, art. 9, § 1. Respondents cross-appeal from the trial court's denial of requested attorneys' fees. We affirm in part and modify in part.

The factual and legal background of this appeal is exceedingly complex. The necessity of adequately touching upon the large number of critical and unique issues involved has caused this opinion to reach great length. For that reason we shall first summarize the primary matters discussed at greater length hereafter.

I. A declaratory judgment is peculiarly well suited to a judicial determination of controversies concerning constitutional rights and, as in this case, the constitutionality of legislative action or inaction under Const, art. 9, §§ 1 and 2. See page 489.

The trial court is affirmed in its use of this remedy.

II. All respondents have standing to seek declaratory relief. See page 490.

The trial court is affirmed.

III. Whether RCW 84.68 precludes judicial resolution of this action is not properly before us. See page 495.

The trial court is affirmed.

IV. It is a proper function of the judiciary to interpret, construe and enforce the constitution of the State of Washington. See page 496.

The trial court is affirmed.

V. Section 1 is not a mere preamble of Const, art. 9. Const, art. 9, § 1 is mandatory and imposes a judicially enforceable affirmative duty. See page 497.

The trial court is affirmed.

VI. Although Const, art. 9, §§ 1 and 2 are not self-executing, neither judicial construction and interpretation giving them substantive content nor the judicial enforcement thereof violates separation of powers. See page 504.

The trial court is affirmed.

VII. Const, art. 9, § 1 imposes a paramount duty upon the State which in turn creates a correlative right on behalf of all children residing within the borders of the state. See page 510.

The trial court is affirmed.

VIII. Const, art. 9, § 1 imposes upon the State the paramount duty of making ample provision for the education of all resident children. The Legislature may properly be left the obligation of implementing the State's mandatory duty. The Legislature must act to carry out its constitutional duty by defining and giving substantive content to "basic education" and a basic program of education. See page 514.

The trial court is affirmed.

IX. The State's affirmative paramount duty to make ample provision for the education of its resident children is a mandatory duty not limited to revenues derived from sources specified in Const, art. 9, §§ 3 and 5 and Const, art. 16. Rather, there can be compliance with the State's mandatory duty only if there are sufficient funds derived through dependable and regular tax sources to permit school districts to carry out a basic program of education. See page 520.

The trial court is affirmed.

X. The State has a mandatory duty to make ample provision for the basic education of all resident children through a general and uniform system. However, the ultimate obligation of giving effect to the mandate rests upon the Legislature. See page 523.

The trial court is affirmed.

XI. The statutory authorization of special excess levy elections for the purpose of meeting the State's mandated duty of making ample provision for "basic education" does not comply with Const, art. 9, §§ 1 and 2. However, special excess levies may be utilized to fund "enrichment-programs" that go beyond the constitutional mandate. See page 524.

The trial court is affirmed.

XII. In the absence of special excess levies the State system of school funding does not make ample provision for the education of the children residing within respondent District and thus does not comply with Const, art. 9, § 1. See page 527.

The trial court is affirmed.

XIII. The Legislature has not expressly determined, in any current law, the level of funding or deployment of resources which is fully sufficient to provide the mandated "basic education." See page 537.

The trial court is affirmed.

XIV. Special excess levies used to fund, in whole or in part, the "basic education" mandated by Const, art. 9, §§ 1 and 2 are unconstitutional. The Legislature has the duty to define "basic education" and to make ample provision for its funding by means of regular and dependable tax sources. The relief granted herein shall be prospective in nature so that obligations heretofore incurred shall not be impaired. Recognizing that the Legislature will need an adequate opportunity to respond to this decision, we modify the judgment of the trial court and extend the date for compliance from July 1, 1979, to July 1, 1981. See page 537.

The judgment of the trial court is affirmed in part and modified in part.

XV. We do not retain jurisdiction over the parties or the action being confident the Legislature will comply fully with its constitutionally mandated duty. Having declined to retain jurisdiction over the parties and the action, we also modify those portions of the judgment that deny "at this time" respondents' prayer for two writs of prohibition against expenditure of State funds and respondents' prayer for a judicially declared constitutional standard of "basic education." See page 538.

The judgment of the trial court is modified.

XVI. The trial court properly refused to award reasonable attorneys' fees to respondents. See page 539.

The trial court is affirmed.

The findings of fact demonstrate that Seattle School District No. 1 (District) must provide an educational program that complies with State statutes, regulations of the State Board of Education and the Superintendent of Public Instruction. Yet, while required to provide the program, the District is not given sufficient state revenue to do so. Rather, the Legislature has authorized school districts to supplement insufficient state funding by resort to special excess levy elections. This scheme merely authorizes a district to "seek" more adequate funding from the local electorate; but, the voters are not required to approve the request. A special excess levy election may not be brought more than twice in any one year. If the second request fails, the district must operate within the funds provided by the State.

School districts have no independent authority to raise funds necessary to fulfill their legal obligations. Consequently, school districts in general and the District in particular, have relied increasingly upon special excess levies to obtain funds necessary for their maintenance and operation budgets.

In 1975 the District twice submitted special excess levy proposals for the purpose of raising necessary additional revenue. As is true of most districts, the District did not base its levy request upon actual need. Rather, it sought a lessér amount believing it might attract voter approval. Although the amount requested, when added to the State guaranty, would not have provided full funding, both levy propositions failed. As a result, the District not only lost needed revenue, it incurred the heavy expense of twice placing the issue on the ballot. The District's experience was not unique. During the 1975-76 school year, 40 percent of the students in the state were in levy loss districts.

The findings of fact reveal that if special excess levies are utilized, in part, to provide for the maintenance and operation of a school district, a levy failure will adversely affect the quality of education. It goes without saying that a double levy failure will severly damage a district's educational program.

Faced with a deteriorating physical plant, a reduction in budgets for books, supplies, staff and programs and a double levy failure, petitioners (respondents and cross-appellants herein) brought this action. The thrust of their claim was that the State had failed to discharge its "paramount duty" to make "ample provision for the education" of its resident children pursuant to Const, art. 9, § 1 and to "provide for a general and uniform system of public schools" pursuant to Const, art. 9, § 2.

The action originated in December 1975 in the Supreme Court as "Petitions for Mandamus, Prohibition and Declaratory Judgment." The original petitioners (respondents and cross-appellants herein) are the District; certain named voter-taxpayers in King County, some of whom are members of the District school board and all of whom are parents of minor children enrolled in and attending the District's schools; and children enrolled in the District as students.

The original respondents (appellants herein) are the State of Washington (State); the Speaker of the House of Representatives and the President of the Senate, as representatives and principal officers of the State House of Representatives and Senate (Legislature); the Superintendent of Public Instruction (SPI); the State Treasurer; and, each member of the State Board of Education (Board).

After a hearing, this court transferred the matter to the Superior Court for Thurston County for an expedited "resolution of all issues of fact and law." The case, as finally determined, was to be subject to direct appeal to the Supreme Court in accordance with appellate rules.

Prior to trial counsel stipulated that consideration of the issues surrounding the 1976-77 school year would be postponed pending determination of the issues involving the 1975-76 school year. Following approximately 9 weeks of trial, the trial court entered findings of fact, conclusions of law and a judgment that may be characterized as a limited declaratory judgment coupled with a retention of jurisdiction to enforce it.

Specifically, the judgment declares that the District's children have a constitutional right to an adequately funded educational program of instruction. In addition it declares that the State, acting through the Legislature, is required by Const, art. 9, §§ 1 and 2, to fund, or provide dependable and regular tax sources for funding, a basic program of education, i.e., it must make available that amount of funding necessary to "make ample provision for the education of all children residing within [this state's] borders ..." It likewise declared unconstitutional the State's reliance, in whole or in part, upon a system of state funding which incorporates special excess levies as a part of the funding of "basic education," or the "basic program of education." Furthermore, it provides that special excess levies may only be used to fund "enriched programs," i.e., educational programs which go beyond that required by Const, art. 9, § 1. In like manner the level of funding provided by the Legislature for the 1975-76 school year was declared insufficient to comply with the State's paramount duty under Const, art. 9, § 1. It also provided that reliance upon special excess levies for the financing of "basic education" must cease and that funds be made available from definite and certain sources to make ample provision for "basic education." The Legislature was granted until July 1, 1979, to enact the necessary legislation to fully comply with the mandate of Const, art. 9, § 1. Moreover, the trial court declared that it is the duty of the Legislature to fully implement Const, art. 9, §§ 1 and 2, and to that end it is to: (A) define "basic education" and determine the substantive content of the "basic program of education"; and (B) provide for the fully sufficient and ample funding of the program by appropriation or through regular and dependable tax sources.

The trial court retained jurisdiction of the action and over the parties to provide for necessary relief in the event the Legislature failed to enact effective legislation in full compliance with Const, art. 9, §§ 1 and 2. The trial court also declared that the relief granted was prospective and was not to be construed as invalidating any acts taken or obligations incurred under existing statutes or regulations. Until July 1, 1979, all acts taken under existing statutes were deemed valid.

On the other hand, the trial court denied respondents' prayer for $17,000,000 damages for the 1975-76 school year and its petition for a writ of mandate directing the State Treasurer to provide the District with damages from state revenues. Additionally, it denied, "at this time," respondents' prayer for a writ of prohibition pertaining to the allocation of funds to local school districts and likewise denied respondents' prayer for a writ prohibiting the State Treasurer from disbursing state funds for any statutorily authorized purposes until supplemental funds were set aside for the operation of the District. The trial court denied, "at this time," respondents' prayer that the court establish, as a matter of constitutional law, the standard against which the substantive content of "basic education" could be measured in order to comply with Const, art. 9, § 1. Finally, the court denied respondents' prayer for reasonable attorneys' fees and costs other than those normally allowed by statute.

Appellants have assigned error to 9 of 698 findings of fact. Except for numbers 172 and 446 no other finding is again referred to in appellants' brief by identifiable number or otherwise. Three other findings are mentioned without actual argument in the reply brief. Since there is no further argument, discussion or reference to these findings, we deem them abandoned. Lassila v. Wenatchee, 89 Wn.2d 804, 809, 576 P.2d 54 (1978); State v. Wood, 89 Wn.2d 97, 99, 569 P.2d 1148 (1977); Pappas v. Hershberger, 85 Wn.2d 152, 153, 530 P.2d 642 (1975). In any event, we have reviewed the record and are convinced that all challenged findings are supported by substantial evidence and none are mere conclusions of law. Such findings will not be disturbed on appeal. Lehmann v. Board of Trustees, 89 Wn.2d 874, 576 P.2d 397 (1978); Lassila v. Wenatchee, supra at 810; Rutcosky v. Tracy, 89 Wn.2d 606, 609, 574 P.2d 382 (1978). Accordingly we must accept all 698 findings of fact as verities. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 199, 570 P.2d 1035 (1977); Heggen Constr. Co. v. Turalba, 88 Wn.2d 711, 716, 565 P.2d 420 (1977).

Appellants have assigned error to 41 of 102 conclusions of law and 37 of 42 paragraphs of the judgment. While a number of the matters to which error is assigned are clearly supported by findings of fact, other matters necessitate a detailed discussion of legal principles basic to this law suit. Thus, they will be dealt with in appropriate sections pertaining to the specific issues to which they are addressed.

Appellants raise a two-part threshold question. The first is concerned with respondents' use of declaratory judgment procedures to challenge the adequacy and constitutionality of the state system of school funding under Const, art. 9, §§ 1 and 2. The second is whether respondents have standing to challenge the constitutionality of the State's reliance upon a system of funding which depends, in whole or in part, upon special excess levies to "make ample provision for the education of all [resident] children."

I

Use of a declaratory judgment to challenge the constitutionality of the legislation.

Appellants appear to contend that it is improper for the District to seek declaratory relief against the State. It is pointed out that there must be a "justiciable controversy" as defined in Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973):

(1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.

Appellants seem to suggest that element (2) is missing because the District is a mere corporate arm of the State, created for administration of the school system. Thus, they assert, the District and the State have identical interests which make declaratory relief inappropriate. We do not agree.

Where the question is one of great public interest and has been brought to the court's attention with adequate argument and briefing, and where it appears that an opinion of the court will be beneficial to the public and to other branches of the government, the court may exercise its discretion and render a declaratory judgment to resolve a question of constitutional interpretation. State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972). See also Diversified Indus. Dev. Corp. v. Ripley, supra at 814; Huntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952).

Our review of the record and the briefs compels us to conclude that the Legislature, the Attorney General, school districts and the people of this State are uncertain as to the meaning and application of Const, art. 9, §§ 1 and 2. They, as well as the impacted public school children, will benefit from a clarification of the applicable constitutional and statutory provisions. Declaratory procedure is peculiarly well suited to the judicial determination of controversies concerning constitutional rights and, as in this case, the constitutionality of legislative action or inaction. See Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977).

II

Standing to seek declaratory relief.

The unchallenged findings of fact disclose that one respondent is the District, a municipal corporation charged by state law with providing educational instruction for public school children in grades 1 through 12. Another group of respondents includes taxpayer-parents of such children, all of whom are citizens of the State, own real property in King County, are registered voters within the District and some of whom are District board members. Finally, thé children-respondents all reside within the District and attend public school therein.

Appellants assign error to the trial court's conclusion of law that the above-mentioned respondents have standing to contest the constitutionality of the school funding system. We find no error.

Appellants assert that the District lacks standing to seek the requested declaratory relief based solely upon one case. Buse v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141 (1976). Buse involved a challenge to the validity of Wisconsin's system of school financing. However, the financing, statutory, and state constitutional requirements discussed therein are unlike those here. Buse involved a challenge to Wisconsin's "power-equalization" system under which local tax revenues were diverted from wealthy school districts to poorer districts in the form of, what was imaginatively called, "negative aid." Five school districts from which funds were diverted were petitioners along with taxpayers and parents of school children residing therein. The five districts were dismissed as parties but the taxpaying parents were left in the action.

Buse is neither factually nor legally controlling. First, "power-equalization" or "negative aid" is not employed in this state's system of school financing. Second, as pointed out in Buse, the five school districts concerned were not placed in a position of having insufficient funds. Rather, all five had sufficient funds for lawfully operating the required educational program. They merely challenged diversion of their tax revenues to other districts. Further, the Buse challenge involved a question of tax uniformity rather than a constitutional duty to make ample provision for education. Finally, the Buse court commented that school districts held power delegated to them by the legislature and thus lacked power to challenge the constitutionality of the legislative acts "under the circumstances". But, it also noted that there were exceptions not relevant in Buse, at least one of which is applicable here. For example, Wisconsin recognizes an exception if the case presents an issue of great public concern. Town of Germantown v. Village of Germantown, 70 Wis. 2d 704, 235 N.W.2d 486 (1975). See also Fulton Foundation v. Department of Taxation, 13 Wis. 2d 1, 108 N.W.2d 312, 109 N.W.2d 285 (1961) in which the Wisconsin court specifically refers to this exception, relying on our own Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959).

It is difficult to imagine a greater interest in the outcome of litigation than that pf respondent District. The current statutory system of school financing has been found insufficient to provide for the basic operation and maintenance of schools. Teaching staffs, educational programs and teaching materials are severely impacted. The failure of two special excess levy proposals has caused additional deferred plant maintenance, educational cutbacks and reductions in teaching staff. The latter fact alone has resulted in other school districts being sued by teachers separated from their positions. For example, see Oak Harbor School Dist. v. Oak Harbor Educ. Ass'n, 86 Wn.2d 497, 545 P.2d 1197 (1976); Hill v. Dayton School Dist. 2, 85 Wn.2d 204, 532 P.2d 1154 (1975); Pierce v. Lake Stevens School Dist. 4, 84 Wn.2d 772, 529 P.2d 810 (1974); Thayer v. Anacortes School Dist., 81 Wn.2d 709, 504 P.2d 1130 (1972); and Boyle v. Renton School Dist. 403, 10 Wn. App. 523, 518 P.2d 221 (1974). Respondent Seattle School District No. 1 is in no different position. For example, see consolidated cases One Thousand Persons v. Seattle School Dist. No. 1 of King County; Adams v. Seattle School Dist. No. 1 of King County; and,. Angevine v. Seattle School Dist. No. 1 of King County, King County cause Nos. 795080, 795060, and 795058 respectively. All concern actions in which the District paid judgments arising out of litigation precipitated by the District's double levy failures in 1975.

Past unrealistically strict considerations of "standing" have been eroded thus permitting broader factual "interests" to give rise to standing. Association of Data Proc. Serv. Org'n, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970); Barlow v. Collins, 397 U.S. 159, 25 L. Ed. 2d 192, 90 S. Ct. 832 (1970); see also K. Davis, Administrative Law Treatise 710 (Supp. 1970). In abandoning strict reliance upon the over legalistic "interest-right" test of standing, the United States Supreme Court commented in Association of Data Proc. Serv. Org'n v. Camp, supra at 153:

The "legal interest" test goes to the merits. The question of standing is different. It concerns . . . the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.

A review of our own cases involving claims by municipal corporations clearly demonstrates that we no longer consider standing an insurmountable barrier to reaching a decision on the merits when a municipal corporation challenges, as unconstitutional, a legislative act. For example, see Moses Lake School Dist. 161 v. Big Bend Community College, 81 Wn.2d 551, 503 P.2d 86 (1972); Snohomish County Bd. of Equalization v. Department of Revenue, 80 Wn.2d 262, 493 P.2d 1012 (1972).

Based on the more liberalized view of standing now recognized both by the United States Supreme Court and our own,¹ it is clear the District has standing to challenge the constitutionality of the school financing system. The interests of the District are not theoretical; they involve actual financial constraints imposed upon the District by the challenged system itself-. In short, the interests sought to be protected by the District are within the zone of interest either regulated by the challenged regulations and legislation or by Const, art. 9, §§ 1 and 2. Under these circumstances it would be unreasonable to deny standing to the District which, far from being a nominal party, stands at the very vortex of the entire financing system.

The basic reason school districts exist is for the education of children through development and maintenance of schools and associated education programs. To that end school districts are authorized to "sue and be sued and to transact all business necessary for maintaining school and protecting the rights of .the district. . ." RCW 28A.58.010.

In considering the question of standing, what could be more fundamental to the maintenance of schools, and an educational program, than an action seeking to obtain sufficient revenue to keep a district operating with its basic programs intact so as to comply with the mandate of Const, art. 9, §§ 1 and 2? What could be more fundamental than respondent District's need for review of a system of public school financing that undermines its means of existence? When school districts are forced into litigation or potential litigation as parties defendant, how can it be said they lack sufficient interest to challenge the constitutionality of the very system of financing which forces them into that untenable position?

Having demonstrated sufficient factual injury and having shown that the interest to be protected is within the zone of interest protected by Const, art. 9, §§ 1 and 2, we hold the District has standing.

Appellants do not seriously challenge the standing of those respondents who are voter-taxpayers, some of whom are members of the District school board, and all of whom are parents of minor children attending public schools within the District. Other than mentioning the subject, the matter is not discussed and.no authority has been cited on this issue of standing. The claimed error does not appear meritorious on its face. Thus, we will not consider it further. Myers v. Harter, 76 Wn.2d 772, 782, 459 P.2d 25 (1969); Brown v. Quick Mix Co., 75 Wn.2d 833, 836, 454 (1969); State v. Robinson, 75 Wn.2d 230, 234, 450 P.2d 180 (1969).

Appellants suggest that respondent children lack standing to seek declaratory relief challenging the State's system of school financing. Yet, all respondent children are residents of the state of Washington, live with their respondent parents within the District, and each is enrolled in and attends one of the public schools within the District.

At the outset it should be noted that Const. Art. 9, § 1, provides:

It is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . .

(Italics ours.) Clearly all respondent children fall within the zone of interest to be protected by the foregoing constitutional classification. They, of all people, are the intended and immediate objects of RCW Title 28A and WAC Title 180. Further, the adverse impact of insufficient revenue for the 1975-76 school year, as it relates to educational programs, is demonstrated by the findings of fact. Nevertheless, appellants challenge the children on the ground that "we do not know enough about them," i.e., the children are challenged for what is not known about them rather than for what is known about them and their status as members of a class specifically recognized by the constitution and our statutes. While the negative approach is ingenious, it has little merit. Additionally, appellants have cited no authority to support this position. Consequently, we will not consider it further. Myers v. Harter, supra; Brown v. Quick Mix Co., supra; State v. Robinson, supra.

Ill

Applicability of RCW 84.68.

A final threshold question is raised by appellants' assignment of error to the trial court's determination that RCW 84.68.010-.150 does not preclude judicial resolution of this action. We do not reach the issue. Appellants did not address the question in their brief and did not cite to RCW 84.68 which deals generally with recovery of taxes paid, payment under protest and injunctions. Ordinarily we will not consider assignments of error on appeal if they are not supported by argument or authority. Lassila v. Wenatchee, supra at 809; State v. Wood, supra at 99; Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 899, 568 P.2d 764 (1977). We see no reason to depart from this practice here.

IV

Role of the court in constitutional interpretation and enforcement.

Appellants assign error to the trial court's conclusion that "[i]t is the proper function of this court to interpret and enforce the constitution of the State of Washington . . ." We do not agree. The ultimate power to interpret, construe and enforce the constitution of this State belongs to the judiciary. Brownlee v. Clark, 87 Wn.2d 478, 482, 553 P.2d 1344 (1976); Haines v. Anaconda Aluminum Co., 87 Wn.2d 28, 34, 549 P.2d 13 (1976); Plummer v. Gaines, 70 Wn.2d 53, 58, 422 P.2d 17 (1966); State Highway Comm'n v. Pacific N.W. Bell Tel. Co., 59 Wn.2d 216, 222, 367 P.2d 605 (1961). See State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969); State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 777, 380 P.2d 735 (1963). See also Dyer v. Sims, 341 U.S. 22, 28, 95 L. Ed. 713, 71 S. Ct. 557 (1950). As we said in In re Juvenile Director, 87 Wn.2d 232, 241, 552 P.2d 163 (1976):

Both history and uncontradicted authority make clear that "' [i]t is emphatically the province and duty of the judicial department to say what the law is.'" United States v. Nixon [418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974)], supra at 703, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803), even when that interpretation serves as a check on the activities of another branch or is contrary to the view of the constitution taken by another branch. Powell v. McCormack, 395 U.S. 486, 549, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Tacoma v. O'Brien, 85 Wn.2d 266, 534 (1975). As stated in Baker v. Carr, 369 U.S. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962):

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

Further, the effect of a judicial interpretation of the constitution may not be modified or impaired in any way by the legislature. See Haines v. Anaconda Aluminum Co., supra at 34.

V

The legal status of Const. art. 9, § 1.

Appellants present a broad attack upon the trial court's use and application of Const, art. 9, § 1. Primarily they contend Const, art. 9, § 1 is a mere preamble, or policy declaration, which imposes no judicially enforceable affirmative duty upon either the legislative or executive branches of government. As a preamble, it is argued, the judiciary is without power to give Const, art. 9, § 1 substantive content. We do not agree.

A. Const, art. 9, § 1 is not a preamble.

Much of appellants' argument is based upon the actual location of section 1 within the education article. It is urged that since the section was placed first it is merely explanatory of objects sought to be accomplished by the balance of the article and thus must be a "preamble." Further, it is said support for this view exists because the codifiers have denominated the section a "Preamble" since 1897. However, these arguments ignore the explicit mandatory wording of section 1 and also beg the question.

Appellants support their "placement" argument by referring to the education articles of 13 other states.² In passing we note that a section in one such article has been held to be a mere preamble without substantive effect.³ But, the argument is not persuasive. Further, a careful review of the other education articles reveals that none is similar to Const, art. 9, § 1, which declares "It is the paramount duty of the state to make ample provision for the education of all children residing within its [the state's] borders ..." (Italics ours.) For example, the constitutions of California, Iowa, Nevada, Michigan and North Carolina merely provide that education shall be encouraged. The Illinois, Louisiana and Montana constitutional provisions are equally inapposite, describing merely the goal of education. Massachusetts, New Hampshire and Tennessee's constitutions are equally irrelevant by referring to cherishing education. Rhode Island specifically makes it the duty of the general assembly to promote education and to adopt all means which they may deem necessary to secure the advantages of education. Maine's constitution authorizes the legislature to act and makes it their duty to require towns to make suitable provision "at their own expense."⁴ Appellants' argument thus contains its own rebuttal. Clearly, Const, art. 9, § 1 is unique among state constitutions.

Const, art. 9, § 1 has not been amended since its adoption. Nothing contained therein or in the Journal of the Washington State Constitutional Convention 1889 (1962) indicates that Const, art. 9, § 1 was intended to have the subordinate status of a mere preamble or that the language "paramount duty" was to be accorded anything less than its plain meaning. Unlike the hortatory language found in the education articles of other states, nothing in Const, art. 9, § 1 suggests that it does not actually declare the State's educational duty. Without question the language used by other states was before the drafters of our state constitution. But, it is significant that such vague laudatory language was rejected and the specific term paramount duty was adopted. There is no doubt the imperative wording of Const, art. 9, § 1 was intentional.

Appellants also attach importance to the fact that since 1897 the published version of Const, art. 9, § 1 has been entitled "preamble." We see no such significance. The original version of the constitution adopted in 1889 contained no titles or subtitles for articles, sections or subsections. It was not until 1897 that law book publishers volunteered titles for their own editorial purposes; and, it must be noted that these additions have changed from time to time.

We do not know from whence the title "preamble" was derived; but, the mere decision of an editor to volunteer captions for an otherwise untitled constitution deserves no weight in interpreting the instrument.

We also disagree with appellants' suggestion that the framers only intended that a "general and uniform" school system be provided. See Const, art. 9, § 2. Had this been their intent, it would have been unnecessary to use the words "ample provision" in section 1. Unlike other states, our constitution couples the State's "paramount duty" with the words "ample provision." The duty to make "ample provision", as opposed to merely providing for a "general and uniform " school system, is the only instance in which our constitution declares a specific state function to be a "paramount duty" of the State. Had the framers intended that the "paramount duty" was to provide a "general and uniform" school system, the constitution would have so provided.

Const, art. 9, § 1 does not merely seek to broadly declare policy, explain goals, or designate objectives to be accomplished. It is declarative of a constitutionally imposed duty. Thus, we hold that,Const, art. 9, § 1 is not a "preamble".

Finally, appellants devote considerable space to the function and legal effect of a preamble. Having rejected appellants' argument that Const, art. 9, § 1 is a preamble, further argument based upon the rejected assumption is irrelevant.

B. Const, art. 9, § 1 is mandatory and imposes judicially enforceable affirmative duty.

Appellants urge that if Const, art. 9, § 1 is not a preamble, it at least is not mandatory and thus imposes no judicially enforceable affirmative duty. However, this contention directly contradicts Const, art. 1, § 29, which provides:

The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.

(Italics ours.) The language of Const. art. 1, § 29 is clear and thus leaves no room for construction, interpolation or addition. Anderson v. Chapman, 86 Wn.2d 189, 543 P.2d 229 (1975); State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969); State ex rel. Swan v. Jones, 47 Wn.2d 718, 289 P.2d 982 (1955). Since this provision is clear and unambiguous, it has been the subject of few judicial comments. Anderson v. Chapman, supra at 192; State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 97, 273 P.2d 464 (1954); State ex rel. Washington Nav. Co. v. Pierce County, 184 Wash. 414, 423, 51 P.2d 407 (1935); State ex rel. Smith v. Neal, 25 Wash. 264, 265, 65 P. 188 (1901). There being nothing in Const, art. 9, § 1 expressly declaring otherwise, we must assume that it is mandatory.⁵ Anderson v. Chapman, supra at 192; State ex rel. Billington v. Sinclair, 28 Wn.2d 575, 581, 183 P.2d 813 (1947); Const. art. 1, § 29.

Appellants argue, however, that even if Const, art. 9, § 1 is mandatory it imposes no judicially enforceable affirmative duty because the command is directed solely to the Legislature. Appellants assert that the sole remedy for breach of such a duty lies with the voters. In short, the remedy is said to be political not judicial.

Appellants' argument assumes, as it must, that Const. Art. 9, § 1 is directed to the Legislature. Based upon that assumption the contention appears to find some support in the case law that culminates in Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915). But, as shall be discussed in Sections VI and VIII below, the constitutional command of Const, art. 9, § 1 is not directed solely to the Legislature.

Without question we held in Gottstein that Const, art. 1, § 29 falls short of solving the problem in cases similar to Gottstein and that in such situations it would be a mistake to assume only the courts can be relied on as guardians of the constitution. However, despite the broad language of Gottstein, that case also recognizes an exception extremely relevant here. At page 493 we said:

Of course, when it comes to considering individual rights such as are protected by the guaranties, that the right to trial by jury shall remain inviolate; that no person shall be deprived of life, liberty or property without due process of law; that no law shall grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens; and many other constitutional guaranties that look to protection of personal rights, the courts have ample power, and will go to any length within the limits of judicial procedure, to protect such constitutional guaranties.

But in that large field of governmental activity having to do with public affairs only, there are many things that might be done or left undone in derogation of mandatory constitutional provisions which the courts would be powerless to correct.

(Italics ours.) We thus recognized that the judiciary has ample power to protect constitutional provisions that look to protection of personal "guaranties." While Gottstein has specifically enumerated some, we also recognized the existence of many others. In this regard we could have then added the affirmatively stated personal guaranties expressed in Const, art. 1, § 5, freedom of speech; Const, art. 1, § 11, freedom of religion; Const, art. 1, § 19, freedom of election; as well as the constitutional rights expressed in Const, art. 1, § 20, authorization for bail; Const, art. 1, § 10, entitlement to public trial; and Const, art. 1, § 22, the right of an accused to appear and defend in person. At this late date in our judicial history we doubt that one could seriously contend any of the foregoing do not set forth judicially enforceable affirmative duties of the State.⁶ Equally illogical would be a rule that a mandatory constitutional provision placing an affirmative "paramount duty" on the State to "make ample provision for the education" of a specific class of citizens is not judicially enforceable. If our exception in Gottstein stands for anything, it recognizes the need to protect those constitutional guaranties of a personal nature.⁷ Const. art. 9, §§ 1 and 2 reflect such a right.⁸

Appellants' argument that any breach of the duty imposed by Const, art. 9, § 1 requires political rather than judicial resolution is incorrect for another reason. As indicated previously, all parties agree that Const, art. 9, § 1 is in need of both interpretation and construction, i.e., a determination of the sense and meaning of the words used in the section as well as the legal effect and consequence of the section itself. The real dispute stems from a disagreement over which governmental body has the power to interpret and construe the constitution. In this respect, appellants argue that Const, art. 9, § 1 is merely a statement of moral principle and that it is the sole prerogative of the Legislature to interpret, construe and give it substantive content. We disagree. As we stated in Section IV, the judiciary has the ultimate power and the duty to interpret, construe and give meaning to words, sections and articles of the constitution. Haines v. Anaconda Aluminum Co., 87 Wn.2d 28, 549 P.2d 13 (1976); Plummer v. Gaines, 70 Wn.2d 53, 422 P.2d 17 (1966); State Highway Comm'n v. Pacific N.W. Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961); see State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 380 P.2d 735 (1963); State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969); see also Dyer v. Sims, 341 U.S. 22, 95 L. Ed. 713, 71 S. Ct. 557 (1950). It is emphatically the province and duty of the judicial department to say what the law is. United States v. Nixon, 418 U.S. 683, 703, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). This duty must be exercised even when an interpretation serves as a check on the activities of another branch of government or is contrary to the view of the constitution taken by another branch. In re Juvenile Director, 87 Wn.2d 232, 241, 552 P.2d 163 (1976); Powell v. McCormack, 395 U.S. 486, 549, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969).

Once it has been determined that the court has the power or the duty to construe or interpret words or phrases in the constitution and to give them meaning and effect by construction, it becomes a judicial issue rather than a matter to be left to legislative discretion.

VI

Separation of powers.

Appellants assert that since Const, art. 9, §§ 1 and 2 are not self-executing, any judicial enforcement thereof or any attempt to give them substantive content would violate the doctrine of separation of powers. We do not agree.

As we said in Sections IV and V, interpretation and construction of the constitution are exclusively judicial functions. Further, as pointed out in Section V, Const, art. 9, §§ 1 and 2 require judicial interpretation and construction to give them proper meaning and scope. Moreover, as stated in Baker v. Carr, 369 U.S. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962):

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

Once it is determined that judicial interpretation and construction are required, there remains no separation of powers issue. Thereafter, the matter is strictly one of judicial discretion. In such a case and after a judicial determination therein, the legislature must subsequently act within the confines of the judicial interpretation. See Plummer v. Gaines, supra; State Highway Comm'n v. Pacific N. W. Bell Tel. Co., supra. This is altogether different from the constitutional requirement of initial and total judicial abstention for which appellants opt.

In this vein we note even appellants concede the judiciary has some power to act. They first suggest the judiciary should inject itself herein only if the legal grounds for so doing are absolutely compelling. Again, in oral argument they maintained the judiciary should refrain from acting unless things become bad enough. Clearly, these arguments are not addressed to a "separation of powers" question. Rather, they are directed at judicial restraint. To acknowledge that the judiciary may act in compelling or exigent circumstances is to concede that it actually has the power to act. That being true, there is no "separation of powers" issue.

At this juncture we also consider Marbury v. Madison, supra, wherein the United States Supreme Court first dealt with the basic powers and duties of the judiciary. Faced with a Congressional declaration of executive authority and an attempt to extend judicial power beyond that provided by the United States Constitution, Chief Justice Marshall said that the judiciary, not Congress, was the branch of government empowered to interpret the constitution. In short, Chief Justice Marshall declared that the. judiciary was supreme in the area of constitutional interpretation, declaration of legal duties thereunder, and the application thereof. It is of interest that appellants do not contend that Marbury was wrong or that it should be disregarded after 175 years. Rather, they concede that the statement of principle has been validated by history.

Nevertheless, we are sensitive to the fact that our state government is divided into legislative, executive and judicial branches with the sovereign powers allocated among the co-equal branches. We are equally aware that those charged with the exercise of power in one branch must not encroach upon power exercisable by ánother. But, the compartments of government are not rigid. In fact, the practicalities of government require that each branch take into account the power of the others. None was intended to operate with absolute independence. Moran v. State, 88 Wn.2d 867, 873, 568 P.2d 758 (1977); In re Juvenile Director, supra; United States v. Nixon, 418 U.S. 683, 707, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Recognition of this fact is particularly important where, as here, Const, art. 9, § 1 is addressed to the "State" not merely to the Legislature. Thus, all three branches of government are charged by the constitutional command and with the mandatory provisions of Const, art. 1, § 29. In addition, the judiciary is charged by Const, art. 4 to exercise the judicial power which, as we said, includes interpretation and construction of the constitution itself.

We cannot abdicate our judicial duty to interpret and construe Const, art. 9, §§ 1 and 2 merely because, as appellants seem to suggest, we lack apparent available physical power. We do not see the threat of confrontation visualized by appellants. To the contrary, we are firmly convinced the other branches of government also will carry out their defined constitutional duties in good faith and in a completely responsible manner,

Judge Sirica was faced with a similar "power" argument by counsel for Richard Nixon, then President of the United States. In In re Grand Jury Subpoena to Nixon, 360 F. Supp. 1, 9 (D.D.C. 1973), he said:

That the Court has not the physical power to enforce its order ... is immaterial to a resolution of the issues. Regardless of its physical power to enforce them, the Court has a duty to issue appropriate orders. . . . [I]t would tarnish the Court's reputation to fail to do what it could in pursuit of justice. In any case, the courts have always enjoyed the good faith of the Executive Branch . . . and there is no reason to suppose that the courts in this instance cannot again rely on that same good faith.

(Footnotes omitted. Italics ours.) On appeal the Circuit Court had this further comment in Nixon v. Sirica, 487 F.2d 700, 711-12 (D.C. Cir. 1973):

The legality of judicial orders should not be confused with the legal consequences of their breach; for the courts . . . always assume that their orders will be obeyed, especially when addressed to responsible government officials.

The action taken in In re Grand Jury Subpoena to Nixon, supra, and Nixon v. Sirica, supra, was affirmed in United States v. Nixon, supra.

The foregoing principles apply with equal force to apparent conflicts between the judicial and legislative branches. See, e.g., Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969). In Powell the issue was whether Congress had wrongfully excluded Adam Clayton Powell from its membership. At stake was the power of the United States Supreme Court to interpret and enforce rights under article 1, section 5 of the United States Constitution which reads:

Each house shall be the judge of the . . . qualifications of its own members . . .

As with our own Const, art. 9, §§ 1 and 2, counsel in Powell strenuously argued that affirmative action by the judiciary would produce a potentially embarrassing confrontation between coordinate branches of the federal government, i.e., with Congress. Powell v. McCormack, supra at 548. Although the problem in Powell was more clearly evident than here, the Supreme Court did not hesitate to assume its proper role. It said at pages 548-49:

But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of the respect due [a] coordinate [branch] of government," nor does it involve an "initial policy determination of a kind clearly for nbnjudicial discretion." Baker v. Carr, 369 U.S. 186, at 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility.

In like manner, this court cannot fail to act. Interpretation and construction of Const, art. 9, §§ 1 and 2 are traditional judicial functions and involve no disregard for or lack of respect due a coordinate branch of government. While the judiciary occasionally may find it necessary to interpret the State Constitution in a manner at variance with a construction given it by another branch, the cry of alleged "conflict" cannot justify courts avoiding their constitutional responsibility. Powell v. McCormack, supra at 548-49.

Appellants also suggest Judge Hoyt's opinion in State ex rel. Reed v. Jones, 6 Wash. 452, 34 P. 201 (1893), merits special consideration in the separation of powers area because he and the concurring judges, Dunbar and Stiles, were members of the State's constitutional convention. We disagree.

Somewhat similar reasoning was rejected as early as 1803 in Marbury v. Madison, supra. In Marbury, the challenged legislation was enacted by a congress populated by numerous framers of the federal constitution. Thus, it was argued, the intent of the drafters of the Constitution must have been accurately expressed in the challenged legislation. The Marbury court disagreed and held the act of Congress unconstitutional. While we recognize that the former framers in Marbury were Congressmen and that those referred to here are judges, appellants' argument is entitled to no greater weight than it was in 1803.

The fact that the three judges were former members of the constitutional convention furnishes no insight to our consideration of the separation of powers issue. Moreover, a careful review of Reed reveals that Judge Hoyt claimed no ability or intent to do so. Consequently, we reject appellants' contention that Reed expresses the intent of the framers of our Constitution. Further, despite appellants' assertions to the contrary, we find that, these former constitutional draftsmen also expressed no helpful view on "separation of powers" in either Anderson v. Whatcom County, 15 Wash. 47, 45 P. 665 (1896) or State ex rel. Spokane & British Columbia Tel. & Tel. Co. v. Spokane, 24 Wash. 53, 63 P. 1116 (1901). Neither actually discusses the "separation of powers" concept. At best, they touch upon it only indirectly and then only in a conclusory manner.

Turning again to Reed, we note that although it discusses "separation of powers" it is not a "separation of powers" case. Primarily, Reed is concerned with the "enrolled bill doctrine" and the type of presumption to be accorded an enrolled bill. Since we are not here concerned with that doctrine, Reed is not in point.

Further, at page 457, Reed recognizes that the "enrolled bill doctrine" may be employed if it can be done "without violating some fundamental constitutional provision or well settled rule of construction." It is of interest, however, that Reed does not thereby exclude judicial action. Rather, it recognizes that whether a constitutional provision or a rule of construction has been violated is a judicial function. Thus, in the final analysis even Reed would acknowledge that the threshold question, e.g., whether the doctrine may be employed, must be decided by the judiciary.

One of our latest discussions of constitutional interpretation and construction, as well as the judicial power and duty to render a declaratory judgment to resolve constitutional questions, is found in State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972). The principal issue concerned the interpretation of Const, art. 2, § 12, i.e., whether extraordinary legislative sessions are limited to 60 calendar days. We held that Const, art. 2, § 12 contains no such limitation. However, we also made another determination singularly applicable to this case. We held that the judiciary has the power and it is its duty, in a case properly presented, to construe the provisions of the constitution.

Consequently, we hold that the trial court's interpretation and construction of Const, art. 9, §§ 1 and 2, as well as its subsequent application thereof to pertinent legislative enactments, does not violate separation of powers principles. In addition, the judgment as subsequently modified herein does not violate the doctrine of separation of powers. Such determinations fall within the traditional role accorded the judiciary to interpret and construe the constitution and involves no lack of respect due a coordinate branch of government. It is the constitutional exercise of a legitimate judicial duty.

VII

Const, art. 9, § 1 imposes a paramount duty upon the State which in turn creates a correlative right on behalf of all resident children.

Const, art. 9, § 1 which stands at the vortex of the entire dispute is unique. It reads in part as follows:

It is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . .

The Journal of the Washington State Constitutional Convention 1889 (1962) discloses no indication that this article or section was intended to have secondary status or was to be accorded anything less than its plain meaning. In fact, Const, art. 9, § 1 is the declaration of the State's social, economic and educational duty as distinguished from a mere policy or moral obligation.

Careful examination of our constitution reveals that the framers declared only once in the entire document that a specified function was the State's paramount duty. That singular declaration is found in Const, art. 9, § 1. Undoubtedly, the imperative wording was intentional. Theodore L. Stiles, a member of the 1889 constitutional convention wrote:

No other state has placed the common school on so high a pedestal. One who carefully reads Article IX. might also wonder whether, after giving to the school fund all that is here required to be given, anything would be left for other purposes. But the convention was familiar, with the history of school funds in the older states, and the attempt was made to avoid the possibility of repeating the tale of dissipation and utter loss.

T. Stiles, The Constitution of the State and Its Effects Upon Public Interests, 4 Wash. Hist. Q. 281, 284 (1913).

It is of some significance that the plain English meaning of the word "paramount" is consistent with the foregoing. "Paramount" is not a mere synonym of "important." Rather, it means superior in rank, above all others, chief, preeminent, supreme, and in fact dominant. B. Evans, A Dictionary of Contemporary American Usage 350 (1957) defines it as :

an adjective meaning above others in rank or authority, superior in power or jurisdiction . . . chief in importance, supreme, preeminent . . . When a thing is said to be paramount, it can only mean that it is more important than all other things concerned.

Webster's Third New Int'l Dictionary 1638 (1971) defines paramount in similar terms:

1: having a higher or the highest rank or authority ... 2: superior to all others . . . Chief, Supreme, Preeminent . . . syn see Dominant

The singular use of the term "paramount duty", when taken together with its plain English meaning, is clear indication of the constitutional importance attached to the public education of the State's children.

By imposing upon the State a paramount duty to make ample provision fór the education of all children residing within the State's borders,⁹ the constitution has created a "duty” that is supreme, preeminent or dominant. Flowing from this constitutionally imposed "duty" is its jural correlative, a correspondent "right"¹⁰ permitting control of another's conduct.¹¹ Therefore, all children residing within the borders of the State possess a "right," arising from the constitutionally imposed "duty" of the State, to have the State make ample provision for their education. Further, since the "duty" is characterized as paramount the correlative "right” has equal stature.

It is also significant that the paramount duty is imposed upon the "State" rather than upon any one of the three coordinate branches of government. Had the framers intended that the duty be a charge upon the Legislature alone, as appellants contend, they would have so provided. However, the constitutional convention did not choose this alternative even though the framers clearly understood the difference between the "State" and the "Legislature."

We thus conclude that, in the context employed by Const, art. 9, § 1, the paramount duty is imposed upon the sovereign body politic or governmental entity which comprises the "State."¹² While the Legislature is an essential element thereof, it is only one segment of that intricate governmental body politic upon which has been placed the paramount duty.

Consequently, all children residing within the State's borders have a "right" to be amply provided with an education. That "right" is constitutionally paramount and must be achieved through a "general and uniform system of public schools." Const, art. 9, § 2. Further, the education that is provided must be "without distinction or preference on account of race, color, caste, or sex." Const, art. 9, § 1.

Since the children residing within the State's borders possess this "right", the State may discharge its "duty" only by performance unless that performance is prevented by the holder of the "right."¹³ There being no evidence that the children have prevented performance by the State, the critical question becomes whether the State has, in fact, performed its "duty."

Northshore School Dist. 417 v. Kinnear, 84 Wn.2d 685, 530 P.2d 178 (1974) is overruled insofar as it is inconsistent with Section VII of this opinion.

VIII

Const, art. 9, §' 1 imposes upon the State the paramount duty of making ample provision for the education of all resident children.

A. The duty.

Appellants contend Const, art. 9, § 1 should be given only that substantive meaning accorded it by the early legislatures. They argue that the action of the first legislature is entitled to great weight because several of its members participated in the constitutional convention and must have known what the framers meant when they used the phrase "make ample provision for . . . education." Const, art. 9, § 1. Thus, it is asserted, the phrase "make ample provision for . . . education" must be interpreted in light of the financing actually provided immediately after statehood.

Appellants point to the exceptionally restrictive funding provided at that time. State funding was either negligible or nonexistent. The little state money provided came from school lands. Funding of school construction was dependent upon voter approval. For the most part, operating revenues were dependent upon niggardly allotments made by county commissioners. This resulted in an average school year of between 4 and 5 months. Finally, school districts had virtually no taxing authority which was independent of county commissioners or the voters. This restrictive funding scheme, appellants contend, is an indication of the first legislature's view of its "paramount duty ... to make ample provision for the education" of the resident children. Had the constitution required a stable school funding base, appellants suggest the early legislatures would have provided it.

We do not accept appellants' argument for two reasons. First, we have already said in Sections IV and V that it is a function of the judiciary, not the legislature, to interpret, construe and give substantive meaning to Const, art. 9, § 1. Second, appellants' position stems from the legal nonsequitur considered and rejected in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), and fully considered in Section VI.

In the final analysis, however, it is not the failure of our early legislatures that troubles us. Rather, our current concern is the failure of subsequent legislatures to "make ample provision for . . . education ..." Accordingly, we must now examine the trial court's interpretation of Const, art. 9, and the obligation it imposes upon the State.

The trial court did not and we do not attempt to deal definitively with the words "ample," "provision" or "education." Rather these terms are treated as guidelines for giving the Legislature the greatest possible latitude to participate in the full implementation of the constitutional mandate. In this sense, then, we adopt, as guidelines, the trial court's unchallenged conclusions of law and corresponding paragraphs of the judgment, which provide broadly:

As used in Const. Art. 9 sec 1 the word "ample" (amply) means liberal, unrestrained, without parsimony, fully, sufficient.

As used in Const. Art. 9, sec. 1, the word "provision" (provide) means preparation, measures taken beforehand; for the supply of wants; measures taken for a future exigency.

As used in Const, art. 9, § 1 "education" in its total or ultimate sense

comprehends all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, and form the manners and habits of youth, and fit them for usefulness in the future. In its most extended signification it may be defined, in reference to man, to be the act of developing and cultivating the various physical, intellectual, aesthetic and moral faculties.

Appellants contend there can be no conclusive, static or exact definition of the phrase "make ample provision for the education" of all resident children. But, it is not seriously argued that this places the State's duty to make such provision beyond all judicial scrutiny. There are ongoing factors as well as financial and historical considerations that clearly impact the subject as well as provide a commonsense aid for determining what may or may not be "ample provision." For example, the phrase "make ample provision for . . . education" has remained unchanged since its enactment. Yet, to suggest that the State fulfills its duty to make such provision by merely providing more acceptable educational facilities than those of 1889 is utter nonsense. We cannot ignore the fact that times have changed and that which may have been "ample" in 1889 may be wholly unsuited for children confronted with contemporary demands wholly unknown to the constitutional convention.

However, to recognize changing times is not to change the constitution. Quite the contrary. We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning. It is the judiciary's duty to ensure that the constitution does not become "a magnificent structure ... to look at, but totally unfit for use." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 222, 6 L. Ed. 23 (1824). A constitution is "intended to endure for the ages to come, and consequently, to be adapted to the various crises of human affairs." McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 416, 4 L. Ed. 579 (1819). In short, the constitution was not intended to be a static document incapable of coping with changing times. It was meant to be, and is, a living document with current effectiveness. As was so well stated by Mr. Justice Holmes in Missouri v. Holland, 252 U.S. 416, 433, 64 L. Ed. 641, 40 S. Ct. 382, 11 A.L.R. 984 (1920):

[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

Consequently, the State's constitutional duty goes beyond mere reading, writing and arithmetic. It also embraces broad educational opportunities needed in the contemporary setting to equip our children for their role as citizens and as potential competitors in today's market as well as in the marketplace of ideas. Robinson v. Cahill, 62 N.J. 473, 515, 303 A.2d 273 (1973); see also Keyishian v. Board of Regents, 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967). Education plays a critical role in a free society. It must prepare our children to participate intelligently and effectively in our open political system to ensure that system's survival. See Wisconsin v. Yoder, 406 U.S. 205, 221, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). It must prepare them to exercise their First Amendment freedoms both as sources and receivers of information; and, it must prepare them to be able to inquire, to study, to evaluate and to gain maturity and understanding. The constitutional right to have the State "make ample provision for the education of all [resident] children" would be hollow indeed if the possessor of the right could not compete adequately in our open political system, in the labor market, or in the marketplace of ideas.

In short, we agree with the trial court's conclusions of law and judgment as they express these same broad educational concepts in terms of constitutional rights. The trial court did not, nor do we, deal with the above mentioned educational concepts as fully definitive of the State's paramount duty. Rather, we hold that they constitute broad guidelines and that the effective teaching and opportunities for learning these essential skills make up the minimum of the education that is constitutionally required.

We hold further that the mandate of Const, art. 9, § 1 is addressed to the State and requires, as a first priority, fully sufficient funds for the "general and uniform system of public schools" which the Legislature is obligated to establish pursuant to Const, art. 9, § 2. Through this system our children will receive their constitutionally guaranteed education.

B. Legislative implementation of the State's mandatory duty.

Although the mandatory duties of Const, art. 9, § 1 are imposed upon the State, the organization, administration, and operational details of the "general and uniform system" required by Const, art. 9, § 2 are the province of the Legislature. In the latter area the judiciary is primarily concerned with whether the Legislature acts pursuant to the mandate and, having acted, whether it has done so constitutionally. Within these parameters, then, the system devised is within the domain of the Legislature.

While the judiciary has the duty to construe and interpret the word "education" by providing broad constitutional guidelines, the Legislature is obligated to give specific substantive content to the word and to the program it deems necessary to provide that "education" within the broad guidelines. However, the broad guidelines which we have provided do not contemplate that the State must furnish "total education" in the sense of all knowledge or the offering of all programs, subjects, or services which are attractive but only tangentially related to the central thrust of our guidelines. Specifically, then, we shall refer to the Legislature's obligation as one to provide "basic education" through a basic program of education as distinguished from total "education" or all other "educational" programs, subjects, or services which might be offered.

With the foregoing considerations in mind, we note that the Legislature has heretofore enacted laws to "provide for a general and uniform system of public schools." However, it has not as yet fully implemented Const, art. 9, §§ 1 and 2 by defining or giving substantive content to "basic education" or a basic program of education. Thus, the Legislature must hereafter act to comply with its constitutional duty by defining and giving substantive meaning to them.¹⁴

Respondents also suggest the need for additional judicial guidelines for matters less fundamental than those discussed heretofore. For example, they suggested we adopt guidelines concerning (1) deployment of instructional and classified staff; (2) staffing ratios and salaries; (3) individualization of instruction for the handicapped, gifted, below average, and for the particular unique needs of students; (4) recognition of unique demographical and geographical demands; (5) local control; and (6) support services. However, in light of the judicial guidelines already set forth and considering the need for the Legislature to rethink and retool much of the present educational system, so that it may mesh as a working whole, we decline respondents' invitation. We are confident the Legislature will consider each of these concerns as well as all other appropriate matters when framing its definition of basic education and when giving substantive content to a basic program of education. There are important policy reasons, historical and otherwise, that pertain to these concerns. But, we cannot say at this time that any one of them, standing alone, rises to a constitutional imperative requiring immediate judicial intervention. While the Legislature must act pursuant to the constitutional mandate to discharge its duty, the general authority to select the means of discharging that duty should be left to the Legislature. See Newman v. Schlarb, 184 Wash. 147, 153, 50 P.2d 36 (1935).

Finally, the constitution requires more than a mere definition of "basic education" or a basic program of education. As we will discuss fully in Sections IX and X below, the State also has an affirmative paramount duty to make ample provision for funding the "basic education" or basic program of education defined. This funding must be accomplished by means of dependable and regular tax sources and cannot be dependent on special excess levies. See Section XI, below.

Insofar as Northshore School Dist. 417 v. Kinnear, 84 Wn.2d 685, 530 P.2d 178 (1974) is inconsistent with Section VIII of this opinion, it is overruled.

IX

The State's affirmative paramount duty to make ample provision for the education of its resident children is mandatory and is not limited to revenue derived from sources specified in Const, art. 9, §§ 3 and 5 and Const, art. 16.

Appellants argue that "ample provision for the education of all [resident] children", mandated by Const, art. 9, § 1, may be achieved only by resort to revenue derived from Const, art. 9, §§ 3 and 5 and possibly Const, art. 16. Appellants stress that Const, art. 9, § 3 concerns establishment and maintenance of a "permanent and irreducible” common school fund; that Const, art. 9, § 5 deals with protection of the permanent common school fund; and, that Const, art. 16 pertains to school lands. They contend that by adopting the foregoing three sections the framers of the constitution believed they had fulfilled their "paramount duty."

The suggestion is ingenious, but it is not supported by history, the Journal of the Washington State Constitutional Convention 1889, or logic. Had the members of the constitutional convention been satisfied that the funds available from Const, art. 9, § 3 would be fully sufficient to comply with the mandate of Const, art. 9, § 1, why did they also provide in section 3:

The legislature may make further provisions for enlarging said [common school] fund.

(Italics ours.) By expressly providing for expansion of the common school fund beyond that initially authorized by Const, art. 9, § 3, the framers must have been mindful that future demands for financing common schools might be greater than those encountered in 1889. Further, if "ample provision for the education of all [resident] children" was to be made solely from common school funds, why does Const, art. 9, § 5 also provide for the protection of "any other state educational fund"? Again, thé constitutional draftsmen must have contemplated that funds, other than common school funds, were to be available for and used to educate our resident children.

Moreover, the State's paramount duty to "make ample provision for the education of all [resident] children" must be discharged by means of a "general and uniform system of public schools." (Italics ours.) Const, art. 9, § 2. The general and uniform system contemplated by the constitution is neither limited to common schools nor is it synonymous therewith. Const, art. 9, § 2 provides for something considerably more extensive: a public school system that "shall include common schools, and such high schools . . . as may hereafter be established." (Italics ours.) It is of interest that no provision is made for the Legislature to disestablish the high school system once it has been established.

The affirmative paramount duty of the State to "make ample provision for the education of all [resident] children" is not limited to revenues derived from funds specified in Const, art. 9, §§ 3, 5 or possibly Const, art. 16. At best these sources provide an irreducible minimum devoted primarily to common schools. But, that minimum cannot be equated with the "ample provision" required for an education that is nowhere limited to the common schools. Rather, Const art. 9, § 2 refers to a "public school system" which includes the common schools as merely one segment of that general and uniform system which also includes high schools. Const, art. 9, §§ 1 and 2 require the State to amply provide for the education guaranteed through the medium of "a general and uniform system of public schools." (Italics ours.)

Thus we hold, compliance with Const, art. 9, §§ 1 and 2 can be achieved only if sufficient funds are derived, through dependable and regular tax sources, to permit school districts to provide "basic education" through a basic program of educatión in a "general and uniform system of public schools." (Italics ours.)

Insofar as Northshore School Dist. 417 v. Kinnear, supra, is inconsistent with Section IX of this opinion, it is overruled.

X

The State has a mandatory duty to make ample provision for the basic education of resident children through a general and uniform system.

A. The immediate duty rests upon the Legislature.

As we indicated in Section IX, the State must make ample provision for the "basic education" of our resident children through a general and uniform system supported by dependable and regular tax sources. While Const, art. 9, § 1 imposes upon the State the basic duty of making "ample provision for the education of all [resident] children," it is not self-executing insofar as legislation is required to give effect to the mandate. However, the fact that the Legislature possesses an ultimate obligation to act is not to say that it may act or not act as it chooses. The duty to act as well as the duty to do so within the parameters of Const, art. 9, §§ 1 and 2 is constitutionally required.

B. A constitutionally imposed "duty" giving rise to correlative jural "rights" does not give rise to similar "rights" in areas not similarly declared constitutionally paramount.

Appellants argue that to impose upon the State a mandatory duty to make ample provision for the education of its resident children through regular and dependable tax sources will open a pandora's box. It is suggested that if the educational system is accorded such preeminence, other state functions will demand similar treatment because they are either mentioned in the constitution or have an important statewide impact.

Whether others will seek larger portions of the tax dollar is unpredictable. However, such attempts cannot be made on the same constitutional basis. Only in Const, art. 9, § 1 is it declared a paramount duty of the State to make ample provision for a service mandated by the constitution.

XI

Statutory authorization of special excess levy elections does not satisfy the State's constitutionally mandated duty under Const, art. 9, §§ 1 and 2.

Appellants contend the State's affirmative duty to "make ample provision for the education of all [resident] children" may be fulfilled by authorizing school districts to submit special excess levy requests. We do not agree.

Historically, the operation and maintenance of public schools have been funded in part by special excess levies. While legislative appropriations for such schools have continually increased, they have not kept pace with increased costs incurred by school districts operating under existing statutes and regulations. For example, in 1960 the total amount of special excess levies raised for the maintenance and operation of schools was $8.4 million or approximately 6.8 percent of the total school maintenance and operation costs. By school year 1974-75, the proportion of special excess levy revenue needed to finance maintenance and operating costs within the State had increased to approximately 25.6 percent of the total maintenance and operation budget. Reliance upon special excess levy funding increased in 1975 to $299 million and in 1976 is expected to increase to $341 million. The experience of the District is no different. In 1974-75, a special excess levy of $43.6 million represented 37.7 percent of the District's total revenues.

As long as voters , approved special excess levies sufficient to operate and maintain local school systems, there were no challenges to special excess levies other than in Northshore School Dist. 417 v. Kinnear, supra. Yet, even when levies did pass problems arose. School boards frequently submitted inadequate levy requests based upon "practical politics," rather than need, to ensure passage.

During the 1975-76 school year, 40 percent of the students in this state, including those in the District, resided in levy loss districts. Such levy defeats placed public school education in immediate danger. In fact, the District was forced to reduce substantially the teaching staff at both the elementary and secondary levels. This change in the student-teacher ratio reduced the subject offerings per student. Individualized instruction and counseling were also decreased. Loss in program coordination, as well as a delay in or a reduction of services, ensued. The budget for books, programs, and supplies was reduced. Security personnel was substantially decreased. Ballard High School's accreditation was placed on temporary status. Finally, the District was unable to adequately care for or maintain its deteriorating physical plant.¹⁵

As we said in Section IX, the State complies with its mandatory duty to make ample provision for basic education only if sufficient funds, derived through dependable and regular tax sources, are provided. The special excess levy is neither dependable nor regular. It is wholly dependent upon the whim of the electorate and is then available only on a temporary basis. A levy defeat ensures that needed funds will not be available. This unstable statutory system destroys a district's ability to plan for a known or definite funding base for either the current year or for future years.

Further, the levy system's instability is demonstrated by the special excess levy's dependence upon the assessed valuation of taxable real property within a district. Some districts have substantially higher real property valuations than others thus making it easier for them to raise funds. Such variations provide neither a dependable nor regular source of revenue for meeting the State's obligation.

Appellants have reminded us of the financial burden that may be faced by the Legislature if we hold unconstitutional the statutory system of special excess levies. We do not doubt that ever increasing demands upon the Legislature by state agencies, departments and institutions have reached near crisis proportions. However, none has the mandatory constitutional recognition found in Const, art. 9, §§ 1 and 2. Though the crisis is recognized, it does not change the constitutional duty of the court or the Legislature. See State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 110, 273 P.2d 464 (1954).

We hold that any statutory scheme which authorizes the use of special excess levies to discharge the State's paramount duty of making ample provision for "basic education" or a basic program of education is not the dependable and regular tax source required to comply with Const, art. 9, §§ 1 and 2. Thus, we agree with the trial court that the statutory funding scheme extant during school year 1975-76 is unconstitutional.¹⁶ However, we do not hold that all resort to the use of special excess levy funds is forbidden. The Legislature may authorize utilization of special excess levies to fund programs, activities and support services of a district which the State is not required to fund under its basic mandate. Thus, if local taxpayers desire to fund an "enrichment program'' which goes beyond that required by the constitution, they may do so by means of a special excess levy.

Insofar as Northshore School Dist. 417 v. Kinnear, supra, is inconsistent with Section XI of this opinion it is overruled.

XII

Special excess levies are unconstitutional insofar as they are used to fund other than "enrichment programs." The balance of the statutory and regulatory system of common school financing fails to make ample provision for the education of children residing . in respondent district.

A. Explanation of the system and application to respondent district.

In Section XI we declared the special excess levy system of funding unconstitutional insofar as it is used to fund other than "enrichment programs." We now consider whether the trial court correctly determined that the State failed to make ample provision for the education of the District's children during school year 1975-76. We agree the State failed to make such provision.

Appellants initially challenge the evidence as insufficient to support the trial court's findings of fact and conclusions of law pertaining to the reasonableness of the District's salary scale, staffing ratios, associated nonsalaried costs and consequently the failure of the State to adequately fund those reasonable costs. Appellants assert that even if the judiciary has the power to declare a prescribed level of state funding constitutionally required, it can only declare a specific funding level inadequate if supporting evidence meets the "highest burden of proof," citing In re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976). Appellants contend respondents have failed to meet that strong burden and thus the trial court improperly injected itself into the subject of the District's funding. We do not agree.

In re Juvenile Director, supra, is not in point. There, we were concerned with the judiciary's need to set a high standard of proof for itself when exercising its inherent power on its own behalf. In that light, we employed a self-imposed restriction, for dealing with court funding, by requiring the "highest burden of proof" and the "clear, cogent, and convincing" test. Here, unlike Juvenile Director, the financial needs of the judiciary vis-a-vis the Legislature are not at issue. Rather, we are concerned with legislative compliance with a specific constitutional mandate. Unlike Juvenile Director, the court has no financial interest. Thus, contrary to appellants' contention, the normal civil burden of proof, i.e., "preponderance of the evidence", applies.

Further, much of appellants' argument is an assertion that the trial court should have believed its witnesses rather than those of respondents and should have found different facts. In this regard appellants' position is not well taken because we have already noted that there is substantial evidence to support the trial court's findings of fact.

We now turn to the level of State funding provided the District in the year 1975-76, independent of special excess levy funds. The trial court held, and we agree, that the funds provided the District through the equalization formula were insufficient to fund a "basic program of education."

The District receives the bulk of its general fund resources from the State through an apportionment formula which operates on the premise of an equal guaranty in dollars for each weighted student enrolled, based upon one full year of 180 days. RCW 28A.41.130. "Weightings" are used to increase the State's allocation to a district for costs associated with particular programs, the type of district, training or experience of the staff, or circumstances involving students enrolled. The State guaranty is determined by dividing total state and local revenue available by the total number of "weighted" pupils.

Only the applicable weighting factors apply in each district and then only for the appropriate pupils and staff. A full time equivalent student (FTE) is calculated on the basis of 180 days, i.e., one school year. The weightings are as follows:

The staff weighting factor is the most significant of all the weighting factors. It is developed each year for each district and it reflects the placement of appropriate certificated staff for that year. However, the factor developed for each district is delayed 1 year so that the prior year's factor is used in the formula calculations. The factor is based on the composite average levels of the staff's certification, education, and experience. The purpose of the staff weighting factor is twofold: (1) to recognize salary costs where they occur; and (2) to enhance recruitment of appropriately trained and experienced staff by local school districts. This factor thus generates additional funds to districts based upon actual salary requirements. As a consequence of this factor, the District received more dollars per FTE than the state average.

The State weighted pupil guaranty does not include the excess cost allocation for special education programs, or funding for traffic safety education, pupil transportation, food services, and other categorical programs. Within these program appropriations, a built-in obligation exists for the expenditures specifically associated with the programs.

Since there is no longer a regular local property tax for schools, this revenue is not included in the 1975-77 formula. With the exception of the State and County Forest Funds (included at 75 percent) and In Lieu of Leasehold Excise Tax (at 50 percent), all other applicable local revenues are included at 100 percent of actual receipt for the 1975-76 school year. For the 1976-77 school year all applicable local revenues are included at 100 percent. The 100 percent deductible revenues include:

In-Lieu-of Tax Receipts

1 percent Real Estate Excise Tax

Federal Forest Funds

Public Utility District Funds

State and County Forest Funds — Local

Timber Excise Tax — Reserve Fund.

In 1973 the Legislature eliminated from the formula both "assumed money"¹⁷ and, on a phased in basis, "leeway money."¹⁸ The levying authority of the local school districts for regular property taxes was also eliminated. The regular property tax for schools was placed at the state level, with the revenue distributed under the apportionment formula rather than, as with the "two mill shift,"¹⁹ dollar-for-dollar back to the district from which it was derived. The effect of "assumed money" upon school districts was alleviated in whole or in part, by the "two mill shift."

In order to alleviate the possible adverse impact of these changes on certain school districts, the Legislature enacted a "grandfather" clause providing that the per pupil guaranty (under the new formula) would not be less than 95 percent of the average amount received per enrolled student, excluding excess levies, by any district during the preceding 3 school years. RCW 28A.41.130.

During school year 1974-75, the District actually received $28,268,185 in state funds for its regular K-12 program. In school year 1975-76, it was estimated that the District would receive $43,592,494 in state funds for its regular K-12 program. Generally, the difference between the two figures may be attributed to the fact that in previous years the regular local property tax which was collected in the District accrued to the District itself. Legislative changes (equalization of general real property taxes) resulted in reassignment of those regular property taxes to the State for collection and redistribution to the districts throughout the state on an equalized basis. The 1975-76 figure reflects the complete change following a partial phasing in of the program.

Using the State average real property valuation per FTE student as a base for comparison, the District has about two-thirds more real property valuation per FTE student than the statewide average. However, because of the equalization of regular levy taxes on real property, the regular real property taxes levied on property within the District are only partially retained by the District for the benefit of its students. Despite the "grandfather clause," the conversion to the state equalization formula represents a loss of approximately $2 to $4 million to the District. .

Beginning with the 1973-74 school year, the present system for computing the staff weighting factor was adopted. Consequently, state appropriations for salary improvements which had previously been distributed outside the formula could now be distributed within the formula, by simply increasing the amount of funds to be distributed under the formula.

Under the apportionment formula, the State distributes money to school districts on the basis of FTE weighted students. However, the actual dollar amount per FTE enrolled pupil in the District does not include categorical funding for such programs as handicapped, special education, pupil transportation, food service, traffic safety education, the gifted program, drug abuse or URRD (Urban, rural and racially disadvantaged).

The number of "weighted" students in the District during school year 1975-76 was 102,553.08. The State guaranty per "weighted" pupil for school year 1975-76 was $480. Thus, the total state funds available to the District for 1975-76 after deducting revenues from the real estate transaction tax, the in-lieu-of taxes, 50 percent of the leasehold in-lieu-of excess tax and federal forest funds, was $45,105,478.

For school year 1975-76, the anticipated revenue to the District in guaranteed support through the State apportionment formula would not change if the FTE pupil to FTE certificated staff ratio were reduced from 30:1 to 20:1. A reduction in this ratio would, however, increase significantly the District's expenditures.

With the foregoing factors in mind, we next consider whether the trial court correctly determined that the funds provided the District by the State were insufficient to fund a basic program of education during school year 1975-76.

Initially, it must be recognized that the trial court was confronted with the dilemma. At the time of trial the Legislature had defined neither "basic education" nor the requisites of a basic program of education. In the absence of such a definition, the trial court considered three suggested definitions of "basic education" and "costed out" each to determine whether the State funding thereof was sufficient. The three definitions utilized were: (1) the May 14, 1976, definition provided by the State Board of Education/Superintendent of Public Instruction; (2) application of State Board of Education accreditation standards, as if they applied to kindergarten through high school; and (3) the "collective wisdom" approach.

The trial court concluded, that irrespective of the educational definition used, the State's provision of funds to the District was insufficient. Having specifically considered each approach employed by the trial court, we agree that State funding was insufficient to provide for any of the suggested definitions of "basic education" or a basic program of education. It is also clear that respondents sustained the burden of proving that the State failed to make ample provision for education as required by Const, art. 9, § 1.

At this point it is important to note an important factor in terms of operating the District. In terms of "quantitative input,” staffing ratios and salaries are the most significant factors in determining the cost of education within a district. In this regard, we again note that there is substantial evidence in the record to support the trial court's finding of fact that in 1975-76 the average salaries paid in the District to both certificated and classified employees were reasonable.

We now refer more specifically to the three approaches employed by the trial court, in the absence of a legislative definition of "basic education" or a basic program of education. The first definition pertains primarily to the present requirements of state statutes and the regulations of the Board and the SPI. Although this definition was not intended to be a funding mechanism, its use is appropriate when considering the most significant impact on costs, i.e., staff ratios, salary expenses, teacher qualifications, instructional requirements, hours, and specific substantive requirements. But, we note with interest that even the minimum ratio contained in the SPI definition when "costed out" against the definition's minimum programs, produces an apparent deficit of $933,045. Moreover this deficit would be increased by $8,315,830 had the Legislature not provided that amount to the District through the Special Levy Relief Act following the District's double levy failure. We also note that the definition used by the Board excludes kindergarten notwithstanding its inclusion within the definition of "common schools" in RCW 28A.01.060. Kindergarten is an integral part of the District's program. Had kindergarten been included in the "costing out," even more State funding would have been required. Finally, if the handicapped programs are included, as the definition suggests, an additional deficit of $275,640 would have existed.

Consequently, it is clear that the State funding would be insufficient to permit the District to operate if "costed out” pursuant to the Board/SPI definition of "state program of education."

Turning next to the costs associated with the second suggested definition (accreditation — K-12), we find State financing equally deficient. We are aware that accreditation standards are not actually funding mechanisms. Further, they ordinarily apply only to grades 7-12. However, accreditation standards are intended to assure a quality program to help graduates prepare for higher education and/or occupational opportunities. The standards provide evidence of accountability that a school district is making judicious use of the resources at its command. Thus, in the absence of a legislative definition of "basic education" and considering the nature of these standards, the accreditation standards may be appropriately treated as if they applied to the K-12 program. By so doing, it is clear that State funding would again be insufficient but for the State's reliance upon funds unconstitutionally generated by special excess levies.

Under the accreditation approach, the District's education requirements for 1975-76 (including kindergarten) would be $75,905,575 whereas the State guaranty ($47,266,694.40) plus other funds available including the excess levy relief funds provided by the Legislature would amount only to $57,640,788. The evidence clearly demonstrates that the funding level for such education under existing law is insufficient.

Finally, a somewhat less exacting approach to defining "basic education" may be found by using what has been called the "collective wisdom" approach. In the absence of scientific proof to conclusively demonstrate a relationship between educational "quantitative inputs" and "qualitative outputs,” this approach seeks to provide standards for needed educational resources by focusing upon the theoretical "normal range ability" student as determined by the collective experience of local educators, school boards, and parents. The approach concentrates upon the statewide aggregate average per pupil deployment of certificated and classified staff and nonsalary related costs for the maintenance and operation of a school program for the normal range student. This approach is not entirely wide of the mark insofar as the Legislature delegates the responsibility to local districts to ultimately determine program, services, staffing ratios and salaries necessary to provide an educational program. Having delegated this responsibility, it would seem only reasonable that the districts be provided with sufficient funding to operate the system.

Under the "collective wisdom" approach, deployment of staff is established at a level of 20 to 1 (pupil per certified employee), or 25 to 1 (pupil to classroom teacher). Clearly, such a ratio is not being funded.

As the foregoing figures demonstrate, and despite the definition used for "education," under existing law the State has not made "ample provision" therefor as required by Const, art. 9, § 1.

B. Alleged surplus.

Appellants contend that an $8 million surplus existed in the District for the 1975-76 school year. It is urged that since this "surplus" could have been used for any purpose, the District actually had sufficient funds. We disagree.

The alleged "surplus" came from two sources: (1) underexpenditure on budgeted items ($6.5 million) and (2) underestimation of total revenues ($1.5 million). Given the instability of the special excess levy system, it is entirely understandable that a school district may be unable to accurately project exact revenues and exact expenditures for the future year. Our review of the findings of fact also reveals that the District's underexpenditure arose from several sources: an unused emergency reserve, warrant interest, lower cost of food services, lower cost of facility operation, and lower transportation costs. It is true these funds could have been used elsewhere. However, it must be remembered that both then and for several years prior thereto, the District was operating on a "deferred maintenance" basis resulting in reduced cleaning standards, use of emergency maintenance, and a delay in repair of instructional equipment, building maintenance, interior and exterior painting, floor replacement and many other items. In short, the so-called "surplus" cannot be considered "money in the bank" when considered in light of what had remained undone both in the area of maintenance and the foregoing of salary raises in the school year 1975-76. Further, had the District granted salary increases based upon the consumer price index increase, this factor alone would have cost, an additional $11,157,749. Thus, we can only conclude that the so-called $8 million "surplus" would not have placed the District in a full funding position insofar as the State is concerned.

Accordingly, we hold that in the absence of unconstitutional special excess levy funds, the State system of school funding during school year 1975-76 did not comply with Const, art. 9, § 1 in making "ample provision" for the education of the children residing within the District.

Insofar as Northshore School Dist. 417 v. Kinnear, 84 Wn.2d 685, 530 P.2d 178 (1974) is inconsistent with Section XII of this opinion, it is overruled.

XIII

The Legislature has not expressly determined, in any current law, the level of funding (or deployment of resources) which is fully sufficient to provide the "basic education" mandated by Const, art. 9, §§ 1 and 2.

Upon review of the law and the briefs, we conclude that the Legislature has not expressly determined a level of funding (or deployment of resources) which would be fully sufficient to provide the "basic education" or a basic program of education mandated by Const, art. 9, §§ 1 and 2.

While we are aware legislation was enacted subsequent to the trial of this case (see footnotes 14 and 16), that legislation is not. before us and any comment thereon would be both dicta and advisory in nature. In either event we should not consider the matter at this time.

XIV

Prospective application of this opinion.

We have great faith in the Legislature and its ability to define "basic education" and a basic program of education and also to fund such education without reliance upon special excess levies. Nevertheless, we do not minimize the task.

The State has developed its current educational and funding system over a period of many years. Without question the changes required herein will have an immediate and major impact upon that system. Thus, the Legislature must be given an adequate opportunity to comply with our decision.

Consequently, we hold that the relief granted herein shall be prospective and shall not be construed or considered as invalidating, in any way, acts done or obligations incurred under existing statutes and regulations, if otherwise constitutional. Further, until July 1, 1981, all acts taken under existing statutes shall be deemed valid, if otherwise constitutional. Beyond this, however, it is the duty of the Legislature to enact legislation compatible with this opinion by July 1, 1981. To this extent, the judgment of the trial court requiring compliance by July 1, 1979, is modified.

The prospective treatment of this decision is not inconsistent with our determination that the system of funding is in fact unconstitutional. In Carkonen v. Williams, 76 Wn.2d 617, 458 P.2d 280 (1969) we adopted a similar approach to allow the State and counties necessary time to rework assessment procedures to comply with a decision of this court having a similar severe fiscal impact. See also Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973); Brown v. Board of Educ., 349 U.S. 294, 99 L. Ed. 1083, 75 S. Ct. 753 (1955).

XV

Retention of jurisdiction modified.

Next, it is necessary to determine whether there was a need for the trial court to retain jurisdiction over the action and the parties. In this regard, we note the trial court's refusal to grant respondents' request to specify the relief it would give if the Legislature failed to comply with the judgment. This refusal was correctly based on the assumption that the Legislature, as a constitutional body] would comply with the constitutional mandate. Legislators, as well as judges, are sworn to support the constitution of the State of Washington and we see no reason to assume legislators will fail to act in good faith to comply with their oath.

The trial court's decision to retain jurisdiction is inconsistent with the assumption that the Legislature will comply with the judgment and its constitutional duties. Consequently, we modify that portion of the judgment retaining jurisdiction over the parties and action. We have every confidence the Legislature will comply fully with the duty mandated by Const, art. 9, §§ 1 and 2 within the time specified in the judgment as here modified.

Having declined to exercise our discretion to retain jurisdiction over the parties and the action, we also modify that portion of the trial court's judgment denying "at this time" respondents' prayer (1) for . a writ of prohibition against allocation of funds to local school districts; (2) for a writ prohibiting the State Treasurer from disbursing State funds; and (3) for a judicially declared constitutional standard against which the substantive content of "basic education" shall be measured.

XVI

The trial court's refusal to award respondents reasonable attorneys' fees.

Respondents have cross-appealed assigning error to the trial court's refusal to allow them reasonable attorneys' fees. They contend such fees should have been awarded either under RCW 7.16.260 or RCW 7.24.100, pursuant to the "common fund/common benefit" doctrine as an exception to the American Rule, or under the court's inherent equitable powers. We do not agree.

By way of support, respondents point to unchallenged findings of fact that they were billed $199,035.50 for attorneys' fees. Based upon the skill, time involved, and nature of the action, the fees charged were found to be reasonable even though they represent only those sums accumulated through December 25, 1976. Other unchallenged findings of fact reveal that this litigation secured a substantial benefit common to all public school children. Finally, the trial court found that the most equitable way to assure that the benefited class would bear its share to the total burden would be to assess attorneys' fees against appellants. Respondents' suggestion for awarding attorneys' fees was to assess them against the State and require payment by way of a judgment from taxing sources.

Respondents' action was instituted seeking writs of prohibition, a writ of mandate, a declaratory judgment and damages. Respondents' prayer for the writs of prohibition was denied and they have not cross-appealed either that denial or the denial of their damage claim. Consequently, we need not decide whether RCW 7.16.260 authorizes a trial court to award reasonable attorneys' fees to a prevailing party. Further, respondents did not claim to have proceeded as a "private attorney general." Thus, we express no opinion as to the applicability of that theory in this or other cases.²⁰

We have consistently refused to award attorneys' fees as part of the cost of litigation in the absence of a contract, statute, or recognized ground in equity. Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 176, 570 P.2d 428 (1977); Hsu Ying Li v. Tang, 87 Wn.2d 796, 797-98, 557 P.2d 342 (1976); Swift v. Island County, 87 Wn.2d 348, 362, 552 P.2d 175 (1976); see Beadle v. Barta, 13 Wn.2d 67, 74, 123 P.2d 761 (1942); State ex rel. Macri v. Bremerton, 8 Wn.2d 93, 102, 111 P.2d 612 (1941); Miesen v. Motter, 115 Wash. 49, 55, 196 P. 659 (1921). In this case there is no contract for attorneys' fees. Thus, we must determine whether there is either a statutory or equitable basis for such an award.

Respondents point to the fact that they have prevailed in an action for declaratory judgment and thus are entitled to reasonable attorneys' fees under RCW 7.24.100, which provides:

In any proceeding under this chapter, the court may make such award of costs as may seem equitable and just.

(Italics ours.) However, RCW 7.24.100 is not a statutory, authorization for attorneys' fees. Referring to this statute and the meaning of "costs" as used therein we have said: .

'costs' do not include attorneys' fees (other than statutory) or accountants' fees. . . .

'"The term "costs" is synonymous with the term "expense." Costs are allowances to a party for the expense incurred in prosecuting or defending a suit, and the word "costs," . . . does not include counsel fees; in other words, counsel fees are not costs or recoverable expenses incurred in prosecuting or defending a suit, either in suits in equity or actions at law.

(Italics ours.) Rocky Mt. Fire & Cas. Co. v. Rose, 62 Wn.2d 896, 899-900, 385 P.2d 45, 1 A.L.R.3d 876 (1963), quoting from Chapin v. Collard, 29 Wn.2d 788, 795, 189 P.2d 642 (1948). In Rocky Mt. Fire & Cas. Co., supra, we concluded that the court was without power to award attorneys' fees, other than statutory fees, under the provisions of the declaratory judgments act. See Fiorito v. Goerig, 27 Wn.2d 615, 619, 179 P.2d 316 (1947); Schoenwald v. Diamond K Packing Co., 192 Wash. 409, 421, 73 P.2d 748 (1937). See also Fritz v. Gorton, 83 Wn.2d 275, 315, 517 P.2d 911 (1974). Accordingly, we affirm the trial court's determination that it was without power under the declaratory judgments act to award attorneys' fees other than statutory attorneys' fees. Further, respondents have not directed our attention to any other statutory basis upon which reasonable attorneys' fees can be awarded. Consequently, we also affirm the trial court's holding that it lacked statutory authority to make the requested award.

Next, respondents argue that reasonable attorneys' fees may be awarded because this litigation has benefited a recognized class and that attorneys' fees may be imposed upon the fund created by the litigation, citing Hein v. Forney, 164 Wash. 309, 319, 2 P.2d 741, 78 A.L.R.3d 631 (1931) and Drain v. Wilson, 117 Wash. 34, 200 P. 581 (1921). However, neither Hein nor Drain is in point. In each, the litigation produced or preserved an actual fund under the court's control that would not have existed but for the lawsuit. In each case we referred to the fund as an "estate" or a "trust fund," and logically so. The fund acquired or preserved did not. devolve solely to the benefit of the immediate litigant, but was to be divided among all members of . a closely defined class. In Hein, a creditor's challenge to the receiver's report preserved the "estate" for the remaining lawful creditors. In Drain, the action resulted in the creation or augmentation of a fund for the benefit of the beneficiaries under a will. The court referred to it as a "trust fund." In each case there was an actual identifiable fund under the control of the court upon which attorneys' fees could be impressed.

Here, no such fund has been created from which beneficiaries may draw in common, upon which attorneys' fees may be impressed, or from which those fees may be paid so that all who benefit may share equally in the payment of fees. The only source from which attorneys' fees might be drawn would be a legislatively imposed tax. The cited cases are inapposite.

Respondents next rely on the "common benefit/common fund" theory. This theory requires the litigation to both benefit others as well as the litigant and also to protect, preserve, or create a common fund. Crane Towing Co. v. Gorton, supra at 176-77; Hsu Ying Li v. Tang, supra at 799. Without question, respondents have benefited a substantial class. Yet, they have not protected, preserved, or created an existing common fund. To the contrary, an unchallenged finding of fact recognizes that respondents have assured for the future that "the state will preserve or create, or cause to be preserved or created, a common fund . . ." (Italics ours.) Having failed to protect, preserve or create an immediate fund from which reasonable attorneys' fees may be awarded, respondents are not entitled to such fees under the "common benefit/common fund" theory. See also Weiss v. Bruno, 83 Wn.2d 911, 914, 523 P.2d 915 (1974).

Nonetheless, respondents argue that there is an exception to the "common benefit/common fund" theory which permits such fees even though no specific monetary fund has been preserved, protected or created. Respondents rely upon Hsu Ying Li v. Tang, supra; PUD 1 v. Kottsick, 86 Wn.2d 388, 545 P.2d 1 (1976); and Weiss v. Bruno, 83 Wn.2d 911, 523 P.2d 915 (1974).

Although the broad language in Hsu superficially supports respondents' contention, it is not in point. First, Hsu (like Drain and Hein) was an action between private litigants involving neither the State nor State funds. Second, in the instant case, there is no allegation or proof of constructive fraud such as that which supported the award of attorneys' fees in Hsu Ying Li v. Tang, supra. See generally PUD 1 v. Kottsick, supra at 930; State ex rel. Macri v. Bremerton, 8 Wn.2d 93, 113, 111 P.2d 612 (1941). See also Fiorito v. Goerig, supra at 618.

Respondents' reliance upon Kottsick is equally without merit. In Kottsick we said at pages 390-91:

The appellants also claim that they fall within the "common fund" exception to the no-attorney-fees rule. We first applied this exception to cases where the litigant preserved or created a specific monetary fund for the benefit of others as well as himself. . . . This court broadened the exception in that it is no longer limited to situations where the litigant preserved or created a specific monetary fund. The exception now extends to situations where the litigant confers a substantial benefit on an ascertainable class.

(Italics ours.) Respondents rely too heavily upon the phrase "specific monetary fund" in addition to taking it out of context. By eliminating the need for a specific monetary fund, we did not eliminate the need for accumulating, preserving, or creating a common fund. Kottsick, and the cases upon which it relies, merely eliminate the need to create a monetary common fund. Kottsick does not eliminate the need to create a common fund from which attorneys' fees may be drawn to justify an award of such fees. The common fund may be monetary; it may be the enrichment of a corporation by securing the return of the value of stocks and bonds as in Baker v. Seattle-Tacoma Power Co., 61 , 112 P. 647 (1911); the common fund also may be preservation of funds by forcing proper accounting and bookkeeping procedures as in Grein v. Cavano, 61 Wn.2d 498, 379 P.2d 209 (1963); but there must be an immediate common fund from which attorneys' fees may be drawn. See generally Crane Towing, Inc. v. Gorton, supra; Swift v. Island County, supra.

Weiss v. Bruno, supra, is presented as another variation of the "common benefit/common fund" concept that might permit respondents to recover reasonable attorneys' fees. Respondents point out that in Weiss the successful litigant did not benefit a truly ascertainable class. The class benefited was "all taxpayers."

In Weiss, the award of attorneys' fees was authorized on four very narrowly defined grounds:

(1) a successful suit brought by petitioners (2) challenging the expenditure of public funds (3) made pursuant to patently unconstitutional legislative and administrative actions (4) following a refusal by the appropriate official and agency to maintain such a challenge.

(Italics ours.) Weiss v. Bruno, supra at 914. Thereafter, in PUD 1 v. Kottsick, supra at 391-92, we clarified the Weiss v. Bruno variation by recognizing its applicability only if all four narrowly defined requirements were met. Upon failing to find that all four requirements were met in Kottsick, we determined that appellants therein were not entitled to attorneys' fees "under the limited circumstances of Weiss." Here, as in Kottsick, we must conclude that respondents are not entitled to attorneys' fees under the limited circumstances of Weiss. In Weiss, the litigants met requirements (1) and (2) by successfully and permanently halting the disbursement of public funds.

Here, respondents were successful litigants and thus have met the first requirement of Weiss. However, there was no challenge to the expenditure of public funds and also no saving or preserving of any fund. On the contrary, this lawsuit has had the opposite effect. It started a flow of funds from the State treasury. Thus, while the "public spirited act" is to be commended, it does not fall within the "limited circumstances of Weiss." PUD 1 v. Kottsick, supra at 391-92. As we indicated in Swift v. Island County, 87 Wn.2d 348, 363, 552 P.2d 174 (1976), the "common fund" theory "allows for an award of attorneys' fees out of a fund created or preserved by a litigant for the benefit of a class of persons." Here there is no such fund. See Crane Towing Co. v. Gorton, supra at 176-77:

As the name implies, the "common fund" doctrine requires the prevailing party to have brought suit to preserve or protect a fund which benefits the party and others. Even if respondents had prevailed here, no fund exists out of which attorney fees might be granted.

Having failed to preserve, protect or accumulate any common fund, respondents are not entitled to be awarded their reasonable attorneys' fees under the "common benefit/common fund" theory. Nor is there a finding of bad faith, fraud or wantonness on the part of appellants to justify such an award under PUD 1 v. Kottsick, supra at 390. Accordingly, we affirm the trial court's denial of reasonable attorneys' fees.

Wright, C.J., and Brachtenbach, Horowitz, and Dolliver, JJ., concur.

1 The extent to which this court has gone in liberalizing "standing" of interested persons or parties is demonstrated by our recent decision in Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973).

2 Cal. Const. art. 9, § 1; Ill. Const. art. 10, § 1; Iowa Const. art. 9, 2d § 3; Preamble to La. Const. art. 8; Me. Const. art. 8, § 1; Mass. Const. ch. V, § II; Mich. Const. art. 8, § 1; Mont. Const. art. 10, § 1(1); Nev. Const. art. 11, § 1; N.H. Const. part 2d, art. 83; N.C. Const. art. 9, § 1; R.I. Const. art. 12, § 1; Tenn. Const. art. 11, § 12.

3 Blase v. State, 55 Ill. 2d 94, 302 N.W.2d 46 (1973).

4 See footnote 2, above.

5 Some rather interesting light is shed upon the purpose of Const, art. 1, § 29 which declares all provisions of the constitution mandatory, unless expressly declared to be otherwise. In 4 Wash. Hist. Q. 281, 286 (1913), Theodore L. Stiles, a member of the constitutional convention and one of the first justices of this court said:

There have been some excellent provisions in the Constitution from which the people have had no benefit, because they depend for operation upon action by the legislature, and that body has neglected to do its duty in the premises. Considering that by section 29 of the first article every direction contained in the constitution is mandatory unless expressly declared to be otherwise, it is at least surprising that in some instances no attempt has been made whatever to set these provisions at their legitimate work.

(Italics ours.)

6 It is of interest that appellants would attempt to belittle the importance of judicial action in the constitutional areas enunciated. For example, it appears to be suggested that "of course" they are unquestionably addressed to the judiciary and are to be implemented by the judiciary. Thus, it is said that even though stated affirmatively they have an important negative aspect and thus are conditional in nature. So, if the State fails to provide the constitutionally required public trial, jury, bail or free counsel the negative conditional nature of the constitutional provision authorizes the court to inject itself as it would in the case of self-executing provisions. This merely ignores the role of judicial interpretation. Nothing in the constitution suggests that these enumerated constitutional sections are "unquestionably" addressed to the judiciary. They are so treated by reason of judicial interpretation, a fact appellants ignore. Nothing in the constitution suggests that although stated affirmatively these constitutional sections are in fact negative and conditional in nature, unless that result is achieved solely by judicial interpretation; again, a fact that appellants ignore. In fact, the judiciary can and does enforce these provisions based upon a longstanding interpretation that the power so to do rests with the judiciary.

7 The power of the judiciary to enforce rights recognized by the constitution, even in the absence of implementing legislation, is clear. See King v. South Jersey Nat'l Bank, 66 N.J. 161, 330 A.2d 1, 9-10 (1974); Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973), cert. denied, Dickey v. Robinson, 414 U.S. 976, 38 L. Ed. 2d 219, 94 S. Ct. 292 (1973); Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 196, 175 A.2d 639 (1961). Just as the Legislature cannot abridge constitutional rights by its enactments, it cannot curtail mandatory provisions by its silence. The judicial obligation to protect constitutionally declared fundamental rights of individuals is as old as the United States. See Marbury v. Madison, 5 U.S (1 Cranch) 137, 163, 2 L. Ed. 60, 69 (1893).

8 In this regard we note that RCW 28A.13.005 refers to the existence of such a constitutional right by providing that all handicapped children shall have the opportunity for an appropriate education "as guaranteed to them by the constitution of the State."

9 Const. art. 9, § 1.

10 W. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30-37 (1913). See A. Corbin, Jural Relations and Their Classification, 30 Yale L.J. 226 (1921); W. Cook, Hohfeld's Contribution to the Science of Law, 28 Yale L.J. 721 (1919). For a recent application of the Hohfeldian concept, see L. Allen, Formalizing Hohfeldian Analysis to Clarify the Multiple Senses of 'Legal Right:' A Powerful Lens for the Electronic Age, 48 S. Cal. L. Rev. 428 (1974).

11 W. Hohfeld, Fundamental Legal Conceptions 65 (1964). See also the foreword by Arthur L. Corbin at pages ix-xi.

12 Webster's Third New Int'l Dictionary (1971) indicates that the word "state" is used in several senses. Sections 5a and 7 refer to the area of government and define "state" in the sense of a sovereign body politic. See generally State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967); Beagle v. Motor Vehicle Accident Indem. Corp., 44 Misc. 2d 636, 254 N.Y.S.2d 763, 765 (1964); Delany v. Moraitis, 136 F.2d 129, 131 (4th Cir. 1943); McPherson v. Blacker, 92 Mich. 377, 52 N.W. 469, 16 L.R.A. 475, 31 Am. St. Rept. 587 (1892); Cass v. Dillon, 2 Ohio St. 607, 616 (1853).

13 Although a "right" is an absolute, imprecise reasoning has caused courts regularly to recognize what appears to be different degrees or grades of "rights" from which flow different jural results. For example, (a) some are deemed absolute; (b) others may be impaired upon showing a compelling state interest; whereas, (c) a third group may be invaded with a showing of a mere reasonable relationship between legislation and the end sought to be accomplished. If, however, rights are truly absolute then clearly those that are subject to invasion or impairment are not true rights. They must be given another definition which reflects their different jural significance and justifies their dissimilar treatment.

This explanation of the difference in definition and consequent jural significance helps explain current case law but is neither intended to limit the privileges and immunities protected by the federal and state constitutions nor to denigrate what the courts have referred to as rights therein. Nevertheless, our reference to this precise method of legal thinking and terminology helps in understanding what courts have been saying about the federal and state constitutions. As Arthur L. Corbin indicated in his foreword to W. Hohfeld, Fundamental Legal Conceptions xiv (1964), it also helps to make it clear what the drafters of the constitution intended.

Close examination of the federal and state constitutions and the cases dealing with them, reveals that true rights exist either by reason of a positive constitutional grant or because the constitution has been so interpreted. These rights are absolute and cannot be invaded or impaired. They give rise in others (in this case the State) to correlative "duties." Certain other legal entitlements exist which, although denominated fundamental rights by the courts, are not actually rights in the sense that they are absolutes. They exist because the constitutions have, in a negative sense, provided for noninterference with specific legal entities. For example: "Congress shall make no law respecting an establishment of religion . . . or abridging the freedom of speech, or of the press . . ." U.S. Const, amend. 1.

The foregoing jural entities, while denominated fundamental rights by the courts are not treated as absolutes because it has been held that they may be invaded or interfered with under recognized limited circumstances. Although having a somewhat lesser status than true rights (or absolutes), the courts have recognized their extreme importance and thus tolerate societal interference only for reasons that are deemed compelling. In short, the State will not be permitted to infringe upon one's constitutional entitlement to noninterference except for extraordinary reasons. Since it does not involve a true right, however, it probably should be denominated more correctly as a fundamental freedom, a fundamental liberty, or a fundamental privilege (the italicized words being legally synonymous — see W. Hohfeld, Fundamental Legal Conceptions 47 (1964) and the discussion of privilege and its synonyms legal freedom and legal liberty).

In actuality, then, there is not a single class of rights. Rather there exist rights as absolutes and there are legal freedoms, liberties, or privileges (as synonyms) which, although of lesser stature than rights, are still so basically important that they may not be invaded unless there is a strong judicially recognized reason.

As stated in the body of the opinion, the mandate of Const, art. 9, §§ 1 and 2 is concerned with a true "right" (or absolute). Thus, the State's only answer is either compliance or a showing that its attempt to comply was met with interference by those claiming the right.

14 Subsequent to trial but almost simultaneously with this appeal, the Legislature enacted Ch. 359, Laws of 1977,1st Ex. Sess., entitled "The Washington Basic Education Act of 1977." This act indicates a commendable effort to alleviate the constitutional void referred to above; however, we cannot pass .on its constitutionality at this time. It was not considered below and is not properly before us for constitutional review. To pass upon the constitutionality of the legislation in this setting would amount to an advisory opinion which we will not render. See Swift v. Island County, 87 Wn.2d 348, 350, 552 P.2d 175 (1976); Cooper v. Department of Institutions, 63 Wn.2d 722, 724, 388 P.2d 925 (1964); Hutchinson v. Port of Benton, 62 Wn.2d 451, 456, 383 P.2d 500 (1963). However, we do note the cooperative action taken by the Legislature.

15 Although the District suffered a double levy failure in 1975, it was not completely without special excess levy funds for the school year 1975-76. Because of the manner in which taxes are collected, the last half of the special excess levy authorized the previous year was collected in October of 1975. This amount, $25,137,499 or 23.4 percent of the total revenues of the District, represented a 42 percent decrease in the special excess levy amount collectible between 1974-75 and 1975-76 because of the levy failure. This equaled approximately a $10 million budget reduction.

Because of the levy loss crisis throughout the State, the Legislature appropriated $65 million to assist the impacted schools. Laws of 1975-76, 2d Ex. Sess., ch. 7. The funds disbursed to the District from the levy relief appropriation amounted to $8,315,820, made up of $5,165,820 (based upon $82.50 per full time equivalent student in the District) and $3,150,000 in supplemental URRD grant funds.

16 Subsequent to trial but almost simultaneously with this appeal the Legislature enacted Laws of 1977, 1st Ex. Sess., ch. 325, pertaining to special excess levies, better known as the "Levy Lid Act." Thereafter, the Legislature enacted Laws of 1977, 1st Ex. Sess., ch. 339, §§ 94, 96 and 97 as the "first step" in the Legislature's commitment to phase in full funding of basic education by the 1980-81 school year. As observed in footnote 14, these acts are not before us at this time for constitutional review nor were they considered by the trial court. See Swift v. Island County, 87 Wn.2d 348, 350, 552 P.2d 175 (1976); Cooper v. Department of Institutions, 63 Wn.2d 722, 724, 388 P.2d 925 (1964); Hutchinson v. Port of Benton, 62 Wn.2d 451, 456, 383 P.2d 500 (1963). Nevertheless, we do note the cooperative action taken by the Legislature.

17 'Unchallenged finding of fact No. 648 provides:

" 'Assumed money' represented that amount of money which a school district was 'assumed' to have received from its regular property tax levy, regardless of whether it did in fact receive that amount. The amount 'assumed' was computed on the basis of 14 mills levied on an assessed valuation adjusted to 25 percent of true and fair value as determined by the State Department of Revenue. Thus, if a local assessor was valuing property at less than the statutory levy, the local school district would receive less dollars from its actual regular property tax levy than was 'assumed,' i.e., deducted for purposes of the state apportionment formula."

18 Unchallenged finding of fact No. 650 provides:

"'Leeway money' is that amount of local school district revenues, including local regular property tax revenues, which was not computed as a deduction in the apportionment formula for purposes of determining the amount of state funds to be distributed under the per pupil guarantee. Thus, under the formula only 85 percent of certain local revenue sources, including the local regular property tax, was deducted. The remaining 15 percent constituted the 'leeway money.'"

19 Unchallenged finding of fact No. 649 provides in part:

"Under the 'two mill shift,' the stated reduced the levying authority of the school districts for regular levies by two mills, levied that two mills itself on the state equalized assessed valuation, which was significantly higher than the locally determined valuation, and distributed the proceeds of the tax back to the local district from which it was derived."

20 Of similar import see PUD 1 v. Kottsick, 86 Wn.2d 388, 392, 545 P.2d 1 (1976) and Weiss v. Bruno, 83 Wn.2d 911, 913, 523 P.2d 915 (1975). This court has yet to adopt the "private attorney general" exception to the "no-attorney fees" rule. As we said in Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 177, 570 P.2d 428 (1977): "As for the 'private attorney general' doctrine, we have not extended that doctrine beyond its application in a 'common fund' situation."