STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
September 8, 1969
Dr. Gordon A. Diedtrich, State Superintendent
Department of Public Instruction
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 69-78
Practical construction of 1968 Supp. to SDCL 1967 13-6-9; Words and Phrases, meaning of the word "area" as twice used in Section 13-6-9 meaning of the phrases "elementary school," "resident voters of the area which operated said elementary school," and "of the electors residing in such area."
Dear Dr. Diedtrich:
You have asked for an official opinion setting out a practical construction of Section 13-6-9 1968 Supp to SDCL 1967, because the same is ambiguous and vague as to its general application and its relationship to SDCL 1967 13-23-1 and 13-23-8. Also, construction by this office has been requested as to the meaning of various words and phrases appearing in Sec. 13-6-9 as set out in the subject above.
Section 13-6-9 provides as follows:
"Continuation of operation of elementary school in independent school district-Election to cease operation.-The school board of an independent school district shall continue to operate any elementary school in operation as of December 5, 1968, until such time as only the resident voters of the area which operated said elementary school shall vote to cease operating said school or schools, Such election shall be called by the school board of the independent school district by resolution or upon a petition by twenty per cent of the electors residing in such area and shall be conducted in accordance with the laws governing elections in independent school districts, provided, however, that the provisions of this section shall not apply to any elementary school which by its continued operation would make the district ineligible for state aid under the provision of SS13-13-10 and 13-13-41, inclusive." (Emphasis added,)
The above section applies only to elementary school attendance centers in operation on December 5, 1968, and operating continuously since that date by school district entities that were later combined with or otherwise became part of an independent school district entity as of July 1, 1969, or later, as provided by law.
Otherwise, Section 13-6-9, supra, has no effect on SDCL 1967 13-23-1 which provides as follows:
"The school board of an independent school district shall have the power to establish and discontinue high schools and the exclusive power to establish and discontinue elementary schools except as limited by law."
Section 13-6-9 is a limitation of the independent school districts' power by law.
Attention is also directed to SDCL 1967 S13-23-8, which provides as follows:
"If a petition, signed by the persons charged with the support and having the care and custody of ten or more students who are eligible to attend an elementary school, all of whom reside not less than four miles from the nearest school with no bus service provided, is presented to any school board asking for the organization of an elementary school for such children, the board will organize such school and employ a teacher therefor, provided a suitable room or building can be secured at some proper location not more than four miles distant from the residence of anyone said child. The provision of this section shall be controlling over any school closed as a result of a vote of the electors."
It is my opinion that Section 13-23-8 is a limitation of Section 13-6-9.
The word "area" as used in two places in Section 13-6-9 means the total geographical area of the school district entity which operated the school during the 1968-69 school fiscal year, except that in the event the original area was divided; the word "area" includes only that portion of the original area which became part of the independent school district within which the school building is located.
The phrase "the resident voters of the area which operated said elementary school" means qualified voters of the independent school district and of the area at the time the proposition to close the school is put to a vote.
The phrase "of the electors residing in such area" means qualified voters of the independent school district and the area at the time the petition is circulated.
The words "elementary school" have reference to the school actually in operation as of December 5, 1968, that is, if the elementary school operated was an eight grade school then the operation of an eight grade school must be continued. If it was a six grade school, the independent board would be bound to at least operate a six grade elementary school.
Respectfully submitted,
Gordon Mydland
Attorney General
