Michigan Advisory Opinions December 19, 1980: AGO 5833 (December 19, 1980)

AGO 5833.

You have requested my opinion whether a fourth class school district may, with voter approval, levy millage for the purpose of constructing sidewalks on a public right-of-way across private property so that the school district may save on operating and energy costs by reducing its pupil transportation. At the outset, it should be noted that school districts have only such powers as are conferred upon them by legislative enactments either expressly or by necessary implication. Senghas v L'Anse Creuse Public Schools, 368 Mich 557, 560; 118 NW2d 975, 977 (1962); Singer Architectural Services Company v Doyle, 74 Mich App 485, 489; 254 NW2d 587, 588, 1v app den, 402 Mich 811 (1977).

An examination of the School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, reveals no express grant of power authorizing boards of education to construct sidewalks across a public right-of-way. Further, in view of the express legislative authorization to municipalities to construct sidewalks across private property, it may not be concluded that school districts possess such power by reasonably necessary implication. See 1966 PA 35; MCLA 41.931 et seq; MSA 9.587(1) et seq; 1985 PA 3, ch VII, Sec. 8; MCLA 67.8; MSA 5.1292; and 1895 PA 215; ch XXIII; MCLA 103.1 et seq; MSA 5.1820 et seq, which deal, respectively, with townships, villages and fourth class cities. See also Damico v Shelby Township, 64 Mich App 271, 275; 236 NW2d 69, 71 (1975), in which the Court acknowledges that the legislature has authorized townships to construct sidewalks and pedestrian overpasses so that school children may safely get to school.

It is my opinion, therefore, that, irrespective of voter approval, the board of education of a fourth class school district is without authority to construct sidewalks across a public right-of-way.

Frank J. Kelley

Attorney General