STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 19, 1966

James I. Hare
State’s Attorney, Hand County
Miller, South Dakota 57362

OFFICIAL OPINION NO. 67-68 pg. 4

Schools & School Districts. Claims for mileage against a common school district.

We are in receipt of your request for an official opinion. In summary, you have presented the following fact situation:

"Common School District X made and entered into a contract with Independent School District Y for the purpose of having high school students transported by bus from District X to District Y with the cost of transporting being paid by District

Some of the students from District X did not attend District Y but attended District Z. These students now ask District X to pay them mileage for the past three years. At no time did District X authorize any transportation or board and room allowance to those students attending District Z. You ask two questions:

"(1) Is the Board of Education of School District X obligated to pay the claims for mileage presented to said Board by the parents of the students of District X who attended high school in District Z?

"(2) Assuming that the answer to Question 1 is no does the fact that the Board of Education of District X provided bus transportation for high school students from its district to District Y have any bearing on the situation?"

With regard to your first question, it is my opinion that District X is not liable for the claims made against it. There are two reasons for this opinion:

First, SDC 1960 Supp. 15.3309 states, "The following types of students who do not have access to bus service furnished by the school shall be entitled to transportation or board and room allowance. . . (Emphasis supplied). From the fact situation it appears that the students going to District Z did have access to bus service furnished by the school district and did not take advantage of it. Consequently, these students do not fall within the meaning of SDC 1960 Supp. 15.3309 because they do have access to a furnished bus service. This view is supported by my opinion of 1963-64 AGR 229. It was therein stated that, it is also my opinion that if the common school district entered into a contract with the independent school district and that said contract provided that bus service was to be furnished for all eligible residents in the common school district, or if the contract provided for the furnishing of bus service to designated residents of the common school district, then said residents would not be eligible for any other transportation payment, provided the designated bus stop was near the resident's home." In other words, the students going to District Z are not entitled to mileage if they had access to furnished transportation going to District Y.

However, if the contract between District X and District Y did not contemplate bus service for all eligible residents, the above opinion is also authority for allowing claims against the District for transportation to those residents not near a bus stop or not. having access to any furnished transportation.

Secondly, SDC 15.3309 (2) further states secondary students are entitled to transportation, provided such transportation is authorized by his school district board." According to the fact situation, mileage for transportation to students attending District Z was not authorized by the District X and a strict interpretation of the above statute would invalidate their claims for past mileage.

The answer to question one also answers your second question. X District is responsible for furnishing transportation for all elementary students and has the option to furnish transportation or board and room allowance for secondary students. If said option is exercised by the School District Board to pay transportation or board and room allowance for secondary students, then such payments should be made available to all secondary students of the District either by the furnishing of bus service or payments for transportation or board and room allowances. If bus service is furnished all students, the District does not have to pay mileage or room and board allowance to those not taking advantage of such bus service. SDC 1960 Supp. 15.3309.