Montana Attorney General Opinion 15-516

Opinion No. 516 School Districts-High Schools-Trans· portation of Pupils-Boa~'d, Rent and Tuition of PupiJs.......;Contracts-School Funds, Expenditure of. HELD: The trustees of an elemen- tary school district have no power to contract for the transportation of high school pupils. Section 1, Chapter 102, Laws of 1929. may authorize transportation of pupils out of one district into another with- out requiring that the schools in thc la tter district be closed. Pupils of schools other than the con- tracting district may be furnished trans- portation so long as such trall~portation is not a charge against the district contracting and so long as such pupils. or their parents, pay their proportion- ate share for such transportation. April 19, 1!)34. You submit a copy of the decree of the District Court of the Fifth .Tudi- cial District, in the case of ;\iaynard Lovell VS. Rebich. et aI., trustees of School District 3 in Beaverhead Coun- ty and request m~' opinion on the fol- lowing: "We respectfully request ~'our opin- ion as to whether or not the trustees can pay each family livin~ more than three miles from school transporta- tion to their own district school Rnd those families pool thei r transporta- tion money anrl hire a hus driver to hring those elementary children to Dillon to school. Can they have hi~h school students as a matter of con- Yenience, The county high school does not allow transportation. "If we cannot do that, how can we legally transport those children to Dil- Ion? The trustees deemed the matter of transporting pupils outside the three mile limit to Dillon to be for the best interests of the di~trict since the people liyin~ several miles fro))] school could and would have broken the distr.ict." The contract made by the board for the transportation of children was suc- cessfully attacked on the ground that your hoard assumed to contract to transport both high school and elemen- tary school children. The trustees of an elementary schoul district have no OPIXIOXS OF THE ATTOHXEY GENERAL power to contract for the transporta- tion of high school pupils, and. as the contract was shown to be indh·j,.:ible and 110 budget authori7.ed anywhere to pay for transporting high school pupils. the court could not, of course. uphold such contract. The decree does not state, of course, the legal grounds hut a letter from the prior county attorney indicates that the court might ha\'e decided the ques- tion upon the ground that there was no statute authorizing transportation of children out of olle district into an- other unless the trustees closed the school in that district. We think it very likely that the following language in section L Chapter 102, Laws of 1929, ma~' authorize transportation without the closing of the schools: "Wben they deem it for the best in- terest of such district. and the pupils residing therein. that any of such pu- pils should be sent to a school in their own or some other district. they must expend any moneys belonging to their district for the pur.pose of either pay- ing for the tl"llnsportation of such pu- pils from their homes to the puhliC" school or schools of such district or for their board, rent or tuitioll; while actually attending such school, .... *." Since the law requires the attendance of all children within certain ages, we think that. the words "any of such pupils" haye a significance. If the pro- \'ision read "all of such pupils". it would c1earl\' indicate thnt the school in the district must he closed before the transportation was authorized. Ha \-- ing used the language "any of such pu- pils," it mnst ha\-e contemplated that a part of the pupils might be trans- ported even though a II of them were not transported, and sincc all PUI)ils within certain ages must go to school, necessarily there must be a local school left to educate those not transported. "Till you consult with the trustees upon the possibility that a method might be found in Chapter 102, Laws of 1929, amending Section 1010, H. C. M., Ifl21, which provides that the trustees of a school district. may contract for the transportation of pupils and Illa~' also permit pupils attendillg other schools to take advllntage of the COII- \'enience of such transporta tion opera t- ing in their locality even though such pupils attend a school that is not a public school. The contract of the trus- tees of District No . .'l. with the bus operator. must, of course. be confined to the transportation of pupils of the plementary district, to be made a charge against District No.3. The statute, as we construe it, does not prohibit the carrying of other pupils if the charge or expense of the transportation of such other pupils is not a chat'ge 01' expense against Dishict No.3, such other pu- pils paying 'Itheir proportionate f'hare of the cost of such transportation." Possibly the high school might pay for the transportation of the high school pupils. As we recall. the Dillon high .~chool, where the high school pupils at- tell(l. does not provide for transporta- tion. Such being 'the case the high school pupils taking advantage of the transportation line operated- by the contract to transport the elementlll'Y . pupils, or their parents, would have to 111lY their proportionate share for such transportation. Said Section 1010, as amended, em- powers the Board to either furnish transportation for pupils, or pay for transportation per pupil as set out in the statute. The schedule may he changed by the board suhjed. to the approval of the county supel·intendent. The statute does not proyide any schedule of allowance for hoard. etc., but it is reasonable to assume that the schedule for transportation would be a fair guide in fixing the amount to be allowed for hoard, rent and tuition, tak- ing into account, the fact that the par- ents would he relieyed of the expense of the board of the pupils at home. The statutes pro\-ide that the trus- tees may expend school funds for the purposes named. So long as such fund" are expended in good faith and wi,thin the intent and tel'IIls of Ole statute we think the method is left to the discre- tion of the Board.