Montana Attorney General Opinion 15-314

Opinion No. 314 Schools-High ~hools-Additional Levies-Elections. HELD: The general school election laws must be followed in voting addi- tionlll levies for high school purposes. II nd any election to vote additional levies after .June 30 is not a legal elec- tion, August 18, 1933. You request our opinion on the fol- lowing matter: "School District No.8 is a district of the third class. It has 212 OPINIOXS OF THE ATTORXEY GENERAL no high school within the district. The nearest county high school is located at Browning, some forty miles from the location of the grade schools in dis- trict No.8. The School Trustees of District No.8 have directed the hudget commission of Glacier County to lev~' an additional 10 mills for high school transporta tion for high school pupils residing in District No.8 for the year beginning .July 1st, H)3a. and ending June 30, 1H34. For the purpose of au- thorizing the levy an election was held in District No. 8 on .Jul~· 24, IH3::!, at which time the question of the addi- tional levy of 10 mills for high school transportation was voted upon and car- ried. The School Trustees of that dis- trict contend that under Chapter 17H of the 1933 Session J~ ws it is not nec- essary to hold an election for this pur- pose. However, they state that they did hold the election merely as a precau- tiona ry measure." Section 1202, R. C. M. 1921, provides for a regular, annual, common school levy of 6 mills. This section was amended by Chapter 123. Laws of 1929. prodding tha t the le,'Y shall he "not less than six nor more than eight mills." This levy is mandatory. Rection 1203. R. C.1\:[. IHZ1, provides that "on or before the second Monday in August, the Board of Trustees of each school district shall certify to the countv commissioners the amount of money needed by the district schools, O\'er and above the amount apportioned to it by the county superintendent un- der the provisions of Section 1204 • • .. The board of county commissioners shall thereupon levy a speeial tax for such purposes, not exceeding ten mills * * *" Section 1203 was amended by Chapter 145, Laws of 1929, and again by Chapter 179, Laws of 1933, and is now the law under which yOUl; school trustees contend a levy of ,ten mills may be made by the county commis- sioners for high school purposes with- out an election. High Schools are a part of our com- mon school system but it is made very clear by the various acts relating to the common schools that the legislature intends that the revenues of the ele- mentary schools shall be kept entirely separate and distinct from the high schools. This office has held that Chap- tel' 17H, Laws of 1933, so far as the re"enues of the two schools are con- cerned, does not apply to high schools. (Opinion No. 268, this vol.) Section no, Chapter 148, Laws of 1931, provides that the general school laws shall govern the high schools in any case in which provision is not made in the code, but the revenues for high schools are provided for in the specific acts applying to high schools and that being true, we are of the opinion that 1203 as amended was correctly con- strued in opinion No. 268. supra, and that the incidental reference to high schools in Chapter 17H was inadvert- ently made. This constrnction elimi- nates Chapter 170 from consideration in any attempt to raise revenue for high school purposes. The levy under that chapter may he made without an election but only for elementary school purposes. Chapter 148, Laws of 1931, (page 347) was enacted to "Establish a Uni- form Code of Laws Relative to High Schools." Sub-chapter 5 of that IIct re- lates to "Finance lind Taxation," (page 378), and was no doubt intended by the legislature to coyer this suhject in its entiret~·, but, as a precaution, the act provides (Section 110) that "the general school laws shall apply in any case for which proYision is not made in this code," as heretofore recited. Sub· chapter 5 of chapter 148, except Sec- tion n5 thereof, which does not deal with the subject of taxation, was re- pealed by the 1933 Session and Chap- ter 178, Laws of 1933, was enacted to replace the repealed act. Chapter 178 was enacted to provide "A Budget System for Making and Con- trolling Estimates, Expenditures and Tax Levies for District High Schools and County High School Purposes." Chapter 178 must be looked to for any authority exercised by officials relat- ing to the subjects it covers. There is no statutory authority grant- ed by any other provision of our laws for levying a millage tax for high school purposes. Section 11 of Chap- ter 178 limits the levy to 7 mills, ex- cept where 7 mills ,vill not produce $125.00 for each high school pupil regu- larly enrolled and residing in the coun- ty. with a further proviso in Section 5 "that nothing herein contained shall be construed as preventing any school OPINIONS OF THB ATTORNEY GENIDRAL 213 district from voting upon itself an ad· ditional levy for high school purposes. in accordance with the general school laws pertaining to the voting of ad- ditional levies by school districts." This proviso, this office has held, au- thorizes districts to provide. b~' elec· tion, for such high school levies o,'er and above the 7 mills, as the qualified electors of the district may appro"e. (Opinion No. 296. this Yol.) This bIings us to the question of the legality of the election of .Tuly 24. 1933 in your District No. 8. The High School Code, Chapter 148, La ws of 1931, provides for elections for bond issues (S'ec. 12), for the aholish- ment of a county high School (Sections 20-23), for establishment of a junior high school (Sections 48-49) but 110 spe· cific provision is made in the High School Code for any other elections except that referred to in the proviso in Section 5 of Chapter 178, Laws of 193H. heretofore mentioned, which must be In accordance with the general school laws pertaining to voting additional ley- ies. It necessarily follows that the gen- eral school election laws must he fol· lowed in voting additional levies for high school pnrposes, and we are, there- f()re, of the opinion that Section 7 of Cha.pter 146. Laws of 1!)::Il, controls and that any election to vote additional levies after .Tune 30th would not he a legal election.