STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 20, 1971

Mr. Clifford C. Oden
State's Attorney, Union County
Elk Point, South Dakota 57025

OFFICIAL OPINION NO. 71-34

Authority for using county high school tuition fund and its distribution

Dear Mr. Oden:

You have requested an official opinion on the following factual situation:

Section 13-28-18 SDCL, which has not been repealed, provides for a high school education for students residing in a common school district "with their tuition being paid by the county tuition fund." See also the last part of Sec. 13-28-23 SDCL.

Union County has one common school district which will remain a common school district until July 1, 1972, as matters now stand. This district has about 120 high school students for the 197 I -72 school term. Since Sec. 13-28-32 was repealed by the Legislature, an official opinion is desired as to the legality of using the present balance in the County High School Tuition Fund to pay high school tuition for these students.

The history of this fund is that on July 1, 1968, there was a deficit in the fund; on July 1, 1969, there was a surplus balance of more than $44,000; on July I, 1970, the surplus was slightly over $ 126,000 and on July 1, 1971, the surplus balance was in excess of $114,000. None of these surplus balances were distributed in accordance with Sec. 13-28-33.1 SDCL.

It is contended that, (1) a large part of the surplus in this fund for the current year was derived from taxes levied in this one common school district, (2) that very little of the present balance was derived from tax levied on property in former common school districts which are now part of the Beresford and Alcester Independent Districts since this area was organized two years or more ago; (3) and, mainly, that it is the duty of the state to provide for education for all students, and that the Legislature surely did not intend to create the present situation when it eli.ffii!1ated the county high school tuition fund levy.

You have asked the following specific questions:

Should the surplus balance in the county high school tuition fund be distributed at this time as provided by Sec. 13-28-33.1 SDCL or retained and expended in payment of high school tuition for students residing in the remaining common school district for the 1971-72 school term?

I am assuming in the writing of this opinion, that when you refer to the "surplus balance" you are referring to the total balance in the high school tuition fund as of a particular date.

The State Commission on Elementary and Secondary Education took action July 27, 1971, and attached the following common school districts in Union. County to the Elk Point Independent School District No.3, Union County, effective August 1, 1971:

1. Richland Common School District No.2

2. Curry Common School District No.6

3. Allard Common School District No. 15

4. Pleasant Grove Common School District No. 20

5. Spink Common School District No. 43

6. That portion of Burbank Common School District No. 10 located in Union County

The State Commission on Elementary and Secondary Education took action July 27, 1971, and attached the following common school districts in Union County to the Jefferson Independent School District No.1, Union County, effective August 1, 1971:

1. Civil Bend Common School District No.5

2. Island Common School District No.9

3. Gibson Common School District No. 13.

The Commission on Elementary and Secondary Education at their meeting July 27, 1971, adopted the following resolution affecting North Sioux City Common School District No.4. The resolution adopted by the Commission reads as follows:

That all of North Sioux City Common School District No.4, Union County, be attached to Jefferson Independent School District No.1, Union County, effective July 1, 1972; and that the Commissioner retains the authority to review this action prior to the effective date (7-1-72).

SDCL 13-28-31 to 13-28-33 was repealed by Chapter 102, Session Laws 1970, effective July 1, 1971. The repeal of these statutes removed the authority of the county commissioners to levy a special tax levy for the county high school tuition fund. This levy was made against the property in common school districts for the purpose of creating the special high school tuition fund for the payment of high school tuition of those students who had residence in the common school districts of the county. The following statutes were not repealed and are still in effect.

SDCL 13-28-18 reads as follows:

Students who have completed the work of the eighth grade and are eligible to attend a high school and whose residences are within a common school district shall have the privilege of attending five school terms of one year each in any public high school or any state institution offering high school subjects with their tuition being paid by the county tuition fund, hereinafter provided. The student with residence in a common school district shall be considered assigned to the high school he attends.

SDCL 13-28-23 reads as follows:

If the said student has been assigned by the school board of the district wherein the student has a school residence, that school board shall pay the legal rate of tuition; except that if the student attending a high school is a resident of a common school district, the county wherein the said student resides shall pay the tuition through the county high school tuition fund, hereinafter provided.

SDCL 13-28-33.1 reads as follows:

On or before August 1, 1968, the county superintendent of schools, or other authorized county official, shall determine the assessed valuation of all common school districts as of June 30, 1962 and shall also estimate the nonobligated balance of such fund as of June 30, 1968 and such nonobligated balance shall be reduced by the estimated expenditures for the school fiscal year 1968-69 and the balance remaining shall constitute a surplus of such fund.

On or before September 1, 1968, the county superintendent of schools, or other authorized county official shall notify the county auditor and county treasurer to make a distribution of such surplus to all school districts, including superimposed high school districts, having land areas as of July 1, 1968 which still is or was land area of a common school district as of June 30, 1962 on the ratio of such land area's assessed valuation is to the surplus. The initial distribution of such surplus shall be made by all counties in accordance with the provisions of this paragraph. In the case of a superimposed high school district in existence as of July 1, 1968, the distribution of such surplus for the land areas within the common school districts over which such superimposed and overlapped, shall be made to the superimposed high school district.

On or before July 1, 1969, and each year thereafter, the county superintendent of schools, or other authorized county official, shall make the same determination as provided above as to surplus and shall notify the county treasurer to transfer such surplus to the county school general fund and such amount only be apportioned annually to public school corporations offering a high school program and who have gained at least five high school resident students as a result of enlarging the school district boundaries during the year preceding July first. If no school districts are eligible for such an apportionment, then no apportionment shall be made and the surplus transferred shall accumulate and be apportioned to qualified districts the following year or years, provided however, that such apportionment shall be made to all school districts who have gained high school resident students since the last apportionment.

SDCL 13-28-33.2 reads as follows:

Whenever no common school districts exist in a county or whenever all remaining common school districts are within a superimposed high school district after the initial distribution is made as provided in 13-28-33.1, the county superintendent of schools or authorized county official shall determine when there will be no further claims f against the county high school tuition fund and the balance thereof shall then be transferred to the county general school fund an~ distributed to the public school corporations of the county in accordance with the provisions of §§ 13-3-23 and 13-13-5. The distribution shall be accomplished within one year after there are no common school districts existing in a county or all common school districts are within a superimposed high school district.

Based upon the above statutes and the fact that there is still a common school district in operation in Union County, it is my opinion that a distribution of the county high school tuition fund as authorized by SDCL 13-28-33.1 and SDCL 13-28-33.2 should not be made until all high school tuition claims have been paid for those students who are residents of a common school district in Union County. It is also my opinion that any funds available in the county high school tuition fund of Union County must be used to whatever extent such funds are available for the payment of high school tuition for high school students who are residents of a common school district in Union County. It is also my opinion that after such obligations have been met and if there is any surplus thereafter, that such surplus would then be distributed as provided by the above statutes. This is in answer to your specific question.

Respectfully submitted,

Gordon Mydland
Attorney General