Montana Attorney General Opinion 15-611

Opinion No. 611 School Distdcts-Budget-Pupils -Transportation of Pupils Who Move to District After Adop- tion of Budget. HELD: Children who mo\'e into a school district after the annual budget has been adopted and transportation arranged for are nevertheless entitled, without discrimination. to the same rights and prhileges of transportation to the school house as other children within the district. September 13, 1034. You request all opinion in the follow- ing matter: "School District No. 16 in this coun, ty made lip its budget which was ap- proved on the 27th day of .July, 1934. At the time the budget was made up and approved it covered items of transportation, as well as other items then apparent to the budget board and trustees. Thereafter, a family with children moved into the district and live a considerable distance from the school house. "Now referring to Section 1010, Chapter 78, School Laws of 1!)21. mllst the trustees arrange for tran"sport- ing the children of tha t family to the school house or may they simply trans- port the ones who lived in the district at the time the budget was made up and adopted since in fact the budget as adopted will not coyer all the ex- pense of transportation?" You submit a copy of an opinion ren- dered by you in which you hold that the school children coming into the dis- trict after the budget was made up can lay no claim to transportation by the school district. You base vour decision on the ground that the budget is with- out any provision for the newcomers and it must necessarily .stand as adopt- ed. As a matter of strict statutory construction we think you are correct. but we think other legal questions must necessarily be considered that may possibly control the budget act. OPIXIOXS OF THE ATTORKEY GE~ERAL 419 Section 1. Article XI. of the Consti- tution requires the state to establish and maintain a general and uniform system of puhlic schools. Section 5 pro\'ides for apportionment of revenues on the census of children between the ages of 6 and 21 years. Section 6 pro- vides that the schools must be kept open for at least three months in each year. and Section 7 provides that. such schools must be open to all children be- tween the ages of 6 and 21 years. Sec- tion 1204. R. C. M .• 1921, requires that school moneys shall be apportioned to the se,eral districts according to the nnmber of school census children be- tween the ages of 6 and 21 years, the same as Section 5 of Article XI of the Constitution. The foregoing provisions of the Con- stitution and statutes, we think, imply tha t a distribution of the school rev- enues amongst children between the nges named shall be made without dis- crimination as fnr as possible or prac- tical, but such provisions merely out- line a basic policy. The question that arises in our mind is, isn't the refusal of the board to furnish the children in question transportation n denial of the Constitutional guarantee of equal protection of the law? This question you will find quite fully dealt with in the following deci- sions: Claybrook v. Owensboro, 23 Fed. ()34: Dayenport v. Cloverport, 72 Fed. ()89; Ward v. Flood, 48 Cal. 3(), 17 Am. R. 405; Dawson v. Lee,' 83 Ky. 49; People v. Detroit Board of Education, 18 Mich. 400; State y. Duffy, 7 Ney. 342, 8 Am. R. 713; McFarlnnd v. Goins, 9() Miss. 67, 50 S. 493. The State of Montana. in estahlish- ing and maintaining a common school system, is exercising a governmental function and, having the right to levy and collect taxes for this purpose, it must distribute the benefits of such system equally and fairly amongst that class, the children of school age, for whose benefit primarily the system is set up, and without discrimination. All revenues derived from the public school grants by the Federal Government to the State and all other revenues re- reh'ed by the State for the use and benefit of the common schools must be distributed ratably to the schools throughout the State on the basis of the school census of school children within certain ages. This is obviously to do justice to all without discrimina- tion against any, and the same equit- able rule should apply in local school management. If there is any principle of our goYernmental system that meets with uni,ersal appro,al it is that all are equal before the law. It was said in Ward v. Flood, 48 Ca 1. 36, a t. page 50: "The opportunit~· of instruction at public schools is afforded the youth of the State, by the statute of the State, enacted in ohedience to the special command of the Constitution of the State .. .. •. The a(l\'antage or benefit thereby vouchsafed to each child, of attending public school is, therefore, one derived and secured to it under the highest sanction of posi- tive law. It is, therefore, a right~a legal right-* .. • and as such it is protected, and entitled to be protected by all the guarantees by which other legal rights are protected ....... "To declare, t.hen, that each person within the jurisdiction of the State shall enjoy the equal protection of its laws, is necessarily to declare that the measure of legal rights within the State shall be equal and uniform and the same for all persons found there- in-according to the respective con- dition of each-each child as all other children. * .. *." Our opinion is that the children re- ferred to are entitled to the same rights and privileges as other children of t.he district and without discrimination.