STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 26, 1969

Elmer E. Gemar
State's Attorney, Bon Homme County
Springfield, South Dakota 57062

OFFICIAL OPINION NO. 69-56

Special  Education Fund. Provision setting time to file claims against such fund are directory rather than mandatory. SDCL 1967 13-37.18 (12) as amended by Sec. 6, Ch. 51, Laws of 1968

Dear Mr. Gemar:

You have requested an opinion based upon these facts:

"In December, 1968, the Tabor Independent School District presented to the County Commissioners its claim for furnishing special education to a single student, and sought payment from the special education fund for such education furnished by the school district from October, 1965 through May, 1968.

"The County Commissioners, relying on SDC 1960 Supp. 15.3004 (12), as provided by Ch. 43 of the Session Laws of 1966 (SDCL 1967 13-37-18) as further amended by Section 6 of Chapter 51 of the Session Laws of 1968, and SDC 12.2013 (SDCL 1967 7-21-46) refused to authorize payment from such special education fund for the school year 1965-1966 and the first half of 1967."

Your question submitted with such factual situation is whether or not the County Commissioners' interpretation of the statutes was correct so that they properly refused payment for such special education provided during the school year 1965-66 and the first half of 1967.

It is my opinion that your County Commissioners have improperly concluded that such statutes prevent it from allowing the claim for payment for special education furnished from the special education fund, notwithstanding the merits of such claim, on the theory that the school district failed to file its claim in time.

This office has previously held that when a particular fund is created, and the statutes creating such fund provide the method of making payment from such fund, such takes precedence over the general statute relative to filing claims against counties. (This general statute is SDC 12.2013, SDCL 1967 7-21-46). These prior opinions are: 1957-58 AGR 125; AGR 1961-62 120; 1965-66 AGR 253; and 1967-68 AGR 243. These opinions follow the proper rule of statutory interpretation and I approve of them.

In Case v. Fall River County, 64 SD 376, 266 N\V 728 and Landecker v. Pennington County, 70 SD 352, 17 NW 2d 715, our Supreme Court held the time limit for filing general claims against the counties as being mandatory (SDC 12.2013). My predecessors, in interpreting the High School Tuition Fund law which requires filing of claims against such fund within a year, has held such designated time to be directory and not mandatory, and there. fore has approved the payment of claims filed later than the statute designated. 1967-68 AGR 125, and 1967-68 AGR 243.

My predecessor held that as the High School Tuition Fund could be expended only for the purposes specified in the statute (see 1959-60 AGR 234, and 1965-66 AGR 159), and that the proceeds in such special fund have been collected on an estimate of the amount of tuition necessary to send children from common school districts to high school during a specified school year, that it would be grossly unfair to the school districts actually furnishing such education, to deny payment from such fund so that such tuition is paid, on the grounds of an untimely filing of valid claims against such fund. The Special Education Fund, like the High School Tuition Fund, is a special fund to pay for special education to extraordinary students. Such fund also is based upon estimates of the cost of special education during each particular school year. In principle, it is an identical fund with the High School Tuition Fund. Expenditures from such special Education Fund represent a different factual situation than expenditures from the general funds of the county which, by virtue of the county budget law, are earmarked for specific county purposes.

I affirm the prior decisions of my predecessors, above cited, and am of the opinion that the same principle applies to the Special Education Fund. The time limitations therein prescribed for filing claims to be reimbursed for special education furnished from such fund is directory and not mandatory. It must follow from what I have said that it is my opinion that your County Commissioners have improperly interpreted the statutes. The claim of the Tabor Independent School District to be reimbursed from the Special Education Fund for the school year of 1965-66 and the first part of 1967 should not have been denied, solely on the grounds that such claim was untimely filed.

Respectfully submitted,

Gordon Mydland
Attorney General