STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 23, 1968

Senator Norval Gullickson
South Dakota State Legislator
Flandreau, South Dakota 57028

OFFICIAL OPINION NO. 68-32

Distribution of County High School Tuition Fund

Dear Senator Gullickson:

You have requested an opinion on the following factual situation:

"Lake County officials are getting ready to disburse the surplus of the County High School Tuition Fund for Lake County School Districts. Questions have arisen as to the method of distribution because Lake County no longer has any common school districts. The last district joined an independent district July 1, 1968."

You have asked the following questions:

"1. Do the first two paragraphs of Senate Bill 128, 1968 Session Laws, determine the method on the basis of valuation as of June 30, 1962 or does the final paragraph determine the method on the basis of the census child regardless of the instructions for 1968 in the first two paragraphs?

"2. If the final paragraph does determine the method of distribution, can the county officials delay the distribution of the surplus until the 1969 Session when the Legislature's intent can be clarified to make the initial distribution of 1968 on the basis of assessed valuation as of June 30th, 1962?"

Chapter 52, Session Laws of 1968 (S.B. 128) amended SDC 1960 Supp. 15.3306 by adding five additional paragraphs reading 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 non-obligated balance of such fund as of June 30, 1968 and such non-obligated 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 having land area 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 areas assessed valuation is to the surplus. The distribution of such surplus shall be made prior to October 1, 1968.

"On or before July 10, 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 1. 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.

"The county superintendent of schools, or other authorized county official, shall each year request the special levy as determined in the first paragraph of this section regardless of whether or not there is any surplus in said fund and the county officials shall make such levy as requested.

"Whenever no common school districts exist in a county or whenever all remaining common school districts are within a superimposed high school district, the county superintendent of schools, or authorized county official shall determine when there will be no further claims against the county high school tuition fund and the balance thereof shall then be transferred to the county general school fund and distributed to the public school corporations of the county in accordance with the provisions of SDC 15.16 and subsection 11 of SDC 1960 Supp. 15.1008. 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."

This statute became effective July 1, 1968 and since Lake County had no common school districts existing on July 1, 1968, it is my opinion that the last paragraph would therefore be applicable and any balance in the county high school tuition fund after all claims are paid would be distributed as provided in said paragraph. Such distribution is to be made in accordance with the provisions of SDC 15.16 and subsection 11 of SDC 1960 Supp. 15.1008 which provides for a distribution based upon the number of children of school age.

In answer to your Question No.2, the last paragraph provides that the distribution shall be made after it is determined that there are no further claims against the fund and that such distribution shall be accomplished within one year after there are no common school districts existing in a county. It is my opinion that the distribution should be accomplished prior to July 1, 1969 and therefore, the 1969 Legislature could amend the statute with an emergency clause prior to the time a distribution would have to be made under the present statute.

Respectfully submitted,

Frank L. Farrar
Attorney General