STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
September 10, 1971
Dr. Don Barnhart
State Superintendent of Public Instruction
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-38
State support for school transportation
Dear Dr. Barnhart:
You have requested an opinion on the following:
The 1971 Legislature passed House Bill No. 506 (Ch. 118 Session Laws 1971) which becomes effective July 1, 1971. This legislation deals with the school transportation support. Each school district within the state shall be entitled to receive support for providing school bus transportation for resident school children enrolled in schools from their place of residence to school and return and between attendance centers within the district on regularly established public school bus routes as determined by the school board.
Section 6 of the Act provides that resident school pupils for the purposes of this Act shall include pupils in public and non-public elementary or secondary schools at which school their attendance satisfies the compulsory education laws of this state.
This provision of the law has created some confusion for the school districts in the state and it is therefore requested that you issue an official opinion on the following questions:
1. Are the provisions of House Bill No. 506 relating to the transportation of pupils attending non-public elementary and secondary schools constitutional?
2. If the referenced provisions of House Bill No. 506 are constitutional, does the Bill require transportation of pupils to non-public elementary and secondary schools, or is it discretionary with each school district?
With reference to the constitutionality of a statute by my predecessor in 1965-66 AGR 27 set forth the following:
In re Watson, 17 S.D. 486, 97 N.W. 463 the Supreme Court said:
There are no limitations in the power of the legislature except as are imposed by the state and federal constitutions, and no legislative act should be declared unconstitutional unless it palpably conflicts with some principle of constitutional law.
11 Am. Jur. § 97 provides in part as follows:
... In construing statutes, the courts favor not only construction as to the validity by viewing statutes, insofar as applicable as a whole, but also construction which, if reasonable, give effect to statutes as a whole, or as much of them as possible ...
Also in Am. Jur. §128 the following:
The basic principle which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation, a constitutional measure is presumed to be created ....
It is my opinion that in general, it is the function of the courts and not the Attorney General to declare that a legislative enactment is unconstitutional. Therefore, it is my opinion that until such times as our courts determine that ... is unconstitutional said statute should be regarded as constitutional.
In answer to your Question No. 1 you are advised that I concur with the above cited opinion.
The appropriate parts of House Bill No. 506 (Chapter 118 Session Laws 1971) are now coded and read as follows:
13-31-2.1 The department of public instruction shall annually compute the amount of school transportation support that each school district within the state shall be entitled to receive for providing school bus transportation for resident school children enrolled in schools from their place of residence to school and return and between attendance centers within the district on regularly established public school bus routes as determined by the school board.
13-31-2.2 The amount of school transportation support to which each school district shall be entitled shall be:
(1) Fifty per cent of its net cost for providing bus service, but not to exceed eighteen cents per mile for those miles actually and necessarily traveled by school transportation vehicles, and
(2) Fifty per cent of its actual cost for payments to parents for mileage and board and room for public school pupils as provided by law for the previous school fiscal year.
13-31-2.3 The net cost to a school district for providing bus service and the actual cost for payments to parents for mileage and board and room for the previous school fiscal year shall be determined annually by the department of public instruction from data supplied by the school district on its annual report to the department. The net cost to a school district for providing bus service shall be determined in accordance with the computation provided in §§13-31-2.4 and 13-31-2.5.
13-31-2.4 The cost of operating district-owned transportation equipment shall be determined as provided in SDCL 13-29-15, plus:
(1) The cost of providing school bus services through a contract between a private owner and operator and the school board, less
(2) All transfer receipts received by the school district for providing school bus services for other school districts, both within and without the state, all receipts from patrons received by the school district for providing school bus service, and all receipts from federal and state sources specifically designated to provide school bus services for resident or nonresident pupils.
13-31-2.5 The algebraic sum of items set forth in § 13-31-2.4 shall then be multiplied by the ratio of the miles actually traveled by all school buses used for transporting resident school pupils to and from their place of residence to the school site of the school in which they are enrolled and for transporting school pupils between school sites within the school district to the total miles traveled by all pupil transportation vehicles for all school and other purposes during the school fiscal year.
13-31-2.6 Resident school pupils for the purposes of §§ 13-31-2.1 to 13-31-2.5, inclusive, shall include pupils in public and non-public elementary or secondary schools at which school their attendance satisfies the compulsory education laws of this state; provided, however, that no pupils from any school which excludes students from attendance on the grounds of race, color, creed or national origin shall be included therein.
I find nothing in the above cited statutes that requires school districts to furnish transportation for pupils enrolled in the non-public elementary and secondary schools in South Dakota. It is my opinion that the statute merely provides that such costs when provided can be included in the formula for reimbursement as part of the state aid for school transportation.
Respectfully submitted,
Gordon Mydland
Attorney General
