Montana Attorney General Opinion 15-268

Opinion No. 268 Schools-Finance-Levies-Warrants --Statutes. HELD: (1) The ten mill levy pro- yided for in Chapter 179, Laws of 191m. does not relate to high schools. (2) Section 4, of Chapter 160, Laws of 1933, makes it mandatory upon the board of trustees to retire outstan(ling warrants by one or the other of thl' methods provided. July 10, 1933. Your request for an opinion is as follows: ;;1. Chapter 179, session laws of HlHH amends section 1203 of the R. C. :'II. 1921 as amended by chapter 145, se;;- ~ion laws of 1929. This section pro- yides for a Reserve Fund for elemen- tary and high schools. It states that: ;The Board of County Commissioners shall thereupon levy a special tax for such purposes, not exceeding ten mills per dollar on the taxable property of the district, * * •. " HQuestion: Does this mean that a part of the ten mill district levy may he used for the purpose of creating a reserve fund for the high schools main- tained by the district? H2. Chapter 160, Laws of 1933, pro- "ides for funding school district war- rants outstanding June 30, 1933. In section 3 it states: '. • • lUay provide for the payment of such warrants • • • *.' In section 4 it states: .• • • must OPINIOXS OF THE ATTORXEY GENERAL 187 immpdiatply prior to or at the time . . . ' "Question: Is it compulsory that school trustees ei·ther issue funding bonds to' retire all outstanding war- rants or that they make a levy to re- tire such warrants before July 1. 1936?" Section 1203, R. C. M. 1921, is incor- porated in Chapter 97, Part III of the Political Code. The chapter comprises Sections 1201 to 1218, inclusive: Sec- tion 1200 was enacted in 1001, and 1211 and 1212 in 1001 at the Extraordinary Session. The balance of the chapter was enacted either in 1895 or prior thereto. The entire chapter deals exclu- ~ively with the "common schools," ex- cept that in Sections 1211 and 1212, enacted in 1921, reference is made to "high schools," but such reference re- lates only to the method of distrihuting the revenues received from the Federal Government for certain "bonuses, roy- alties anci rentals." In State v. Dawson County, 87 Mont. 122, at page 133, our Supreme Court held that "high schools" is comprised in the term "common schools." In that case, however, the court said: "Under constitutional authority, the legislature may either leave the matter of high school education to the several school districts of a county 01' provide a dif- ferent method of rule or government for this class of 'common schools'." Our legislature, in all matters of rev- rnue, has very clearly and distinctly. provided a different method for our high schools and our "common schools" or elementary schools. The term "com- mon schools" is frequently used in the ~tatutes in a way that the term is clearly meant to apply to what is desig- nated in later statutes "elementary" schools, and is clearly intended by such use to differentiate between such schools and .high schools. This conclu- sion cannot be successfully contra vert- cd when the term "common schools" is analyzed as used in such statutes as 1201, 1202 and others. The meaning given to common schools in State v. Dawson County, supra, may subse- quently, and probably wiJI, lead to wi{r ing out entirely the distinction between eommon and high schools in matters of revenue and in all other particulars, but certainly the legislature up to 1938 has clearly maintained a distinction be- tween the two classes of schools in all matters relating to their revenues . Going back now to Section 1203 ori- ginally enacted in 1901, amended in 1007, in 1913 and again in 1919 and appearing in our present code as var- iously amended: The section as it ap- pears in Revised Codes of 1921 wa~ amended by Chapter 145. Laws of 192D. and again by Chapter 179, Laws of 198:3. Nowhere in the checkered career of the section is any referf'nce marIe to any school except district or com- mon schools, except 12] 1 a nrl 1212 here- tofore referred to. Up to H),21 "common schools" were used to designate elf'- mentary schools. Thereafter the tprm employed to describe the elementary schools was "district" or elpmentar)' schools. Chapter 179, Laws of 1933, is tllP first instance where any rf'ference ha" heen made in the statutes tha t tends to eonfuse the provision of the sta tutPl'; relating to the revenues of the two kinds of schools, and this is done in an amendment to a section of the 1921 codes and the amended section is II part of a cha'pter heretofore devoted exclush'ely to "common or district" schools. No reference is made to high schools in the title of the 1933 amend- ment, and the meaning of the 1933 act, in its application to high schools, is not clear. Chapter 145, Laws of 1!)2!l. does not refer to high schools, but the same provision containing the same wording about the 10 mill levy is in both the 1929 act and the 198.'1 act. ]n I.oth acts the phrase appears, "such special tax shall be levied upon each taxpayer of such district." As the 1W,) act has been construed, in practiee. as Hpplying to elementary schools only, it would appear tha t the reference to high schOOls in the 19.'1.'1 amendment was thrown into the amendment without a ny purpose to ha "e the 10 mill pro- ,'ision in the latter part of the act II pply to high schools. Furthermore, high school revenues nrc produced by a county-wide levy, nnd the provision in Section 1203 re- lating to the 10 mill le,'y makes such leyy "upon each ta.xpayer of the dis- trict." Again, no pro\'ision is made for the distribution of the re"enues derived fl'om the 10 mill levy between the high schools and the common or elementary 188 OPINIONS OF THE ATTORNEY GENERAL ~ehools. If it be assumed that the high ~chools should have any portion of the 10 mill levy, the distribution would ha ye to be made by arbitrary ruling. And, again, Section 86 of Chapter 148, (Subchaptel' 5) Laws of 1931, provide~ that the high school levy for mainte- na nce shall not exceed 7 mills. 'Ve are therefore of the opinion that the 10 mill pro'.ision of the 1933 ampnd- ment to See-tion 1203 does not rela te to high schools. Replying to your second question, we are of the opinion that Section 4 of Chapter 160, Laws of 1933, makes it mandatory upon the board of trustees to retire outstanding warrants hy one or the other of the two methods pro- yided.