June 1, 1978

Mr. Thomas C. Todd, Superintendent 
Elementary and Secondary Education 
Department of Education and Cultural Affairs 
New State Office Building 
Pierre, South Dakota 57501

Official Opinion No. 78-26

An exempt motor vehicle used by nonprofit organization to solely provide transportation to persons fifty-five and over and the physically or mentally handicapped persons as a quasi-common carrier for the purposes of SDCL 13- 37-8.9

Dear Mr. Todd:

You have asked my opinion on the following factual situation:

FACTS: 

SDCL 49-28-2 was amended by HB 1190 (Chapter 346, Session Laws of 1978), Section 2, to read as follows: 
     
Motor vehicles used by a nonprofit organization to solely provide transportation to persons fifty-five years of age and over or to transport those who by reason of physical or mental handicap are unable to utilize conventional public transportation. 
    
SDCL 49-28-2 exempts certain motor vehicles from the motor carrier regulations.
     
SDCL 13-37-8.9 as amended by HB 1142 (Chapter 116, Session Laws of 1978) reads as follows: 
     
If appropriate bus service is not provided by a school district, the parents or guardian of any child in need of special assistance or prolonged assistance, when legally assigned, are eligible for necessary transportation compensation for their child from his place of residence at the rate per mile set forth in § 13-30-3.  However, that the maximum shall not exceed sixteen hundred dollars per family per year.  In lieu of compensation for mileage, a district may pay the actual cost of transportation by common carrier or of bus service provided by contract with the facility in which the child is enrolled.  The district wherein a child in need of special assistance or prolonged assistance has school residence shall pay the transportation expenses from the district's special education fund. 
    
A Senior Citizens' Center has acquired a van-type vehicle equipped to transport handicapped individuals including wheelchairs which may be locked into positions to provide safety for the individuals in the chairs.  The vehicle was acquired with the assistance of a federal grant for the purpose of transporting handicapped persons in the community.

Based upon the above facts, you have asked the following question:

QUESTION: 

Would a school district be authorized under SDCL 13-37-8.9 to enter into an agreement to pay the Senior Citizens' Center for transporting a physically or mentally handicapped student to and from school in lieu of compensation paid to the parent or guardian for mileage?

It is my opinion that by amending SDCL 49-28-2, the 1978 Legislature clearly stated that vehicles such as you refer to are NOT common carriers. That exemption is at the very core of the 1978 Amendment to § 49-28-2.  If they are not common carriers for purposes of Chapter 49-28, I do not believe they can be common carriers for purposes of § 13-37-8.9.  Thus I believe the conclusion must be that a school district cannot use the common carrier exemption under § 13-37-8.9 as a basis for paying the Senior Citizens Center for transportation of handicapped students to school.  Also, I do not see how the “contract with the facility” exemption granted at § 13-37-8.9 would be applicable to authorize the practice you ask about.  The answer to your question, therefore, is no. Before this sort of agreement would be authorized, the language of § 13-37-8.9 should be changed to allow it.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:GOH:in