Montana Attorney General Opinion 15-83

Opinion No. 83 School Funds-High Schools. HELD: Funds reco\'ered by a school 11i;;tl'ict in an action hrou~ht against the county, helong to the district and not to any depal'tment thereof, such as county ·high schools, suhject to disposal hy the school boa nl as are other funds of the district. February 20, 1933. I have your request for :tn opinion in regard to the use of funds reech'ed from Pondera County hy reason of a judgment obtained a~ainst the county by School District Xo. 10, the action. being brought to I'ecover delinquent penulty and interest, the case referred to being School District No. 12 y. Pon- dera County, SO Mont. 842. You state that: "The school board. at the time of hudgeting, applied the entire alllount due this yenr from the taxes covered by the judgment, to the elementary schools and did not apportion any of it to the high school of said district. I f the taxes had becn paid when due the high schools would naturally have receh'ell a portion thereof. 68 OPINIONS OF THE ATTOR:XEY GE:XERAL "The question now arises, is the high school entitled to a portion of the money recovered under this judg- ment ?" In the CR'se referred to the court used the following language: "The general rule is tha t 'unless otherwise directed, interest, penalties and costs collected on delinquent tax- es follow the tax, and go to the state, county or city, according as the one or the other is entitled to the tax it- self; and in cases where two or more of these are interested in the tax, such interest and penalties sh"uld be ap- portioned among them in the ratio of , their respective shares of the tax. But the legislature may change this rule and dispose otherwise of interest and penalties.' (37 Cyc. 1594.) Under this rule a school district is clearly entitled to its proportionate share of the interest and penalties paid on re- demption of property purchased by private citizens, as the legislature has certainly not changed the general rule wi,th respect to such moneys." For a great number of yeal's there has ,been levied in the various counties of the state for the benefit of high schools a county high school tax. This tax has been distributed on the basis of attendance in counties haYing a county high school and on the basis of teaching positions and attendance in counties not having a county high school. Prior to the adoption of the high school code (Chapter 148, Laws of 11)31) any school district maintaining a high school could use any part of the funds received by apportionment or by the levy of a tax upon the district for the support of its high school to sup· plement the amount received from ap- portionment of the high school tax. Upon the adoption of chapter 148 the legislature, in effect, declared that high schools should hereafter be supported solely from the county high school tax, except where by a vote of the district, a tax was authorized to be levied upon the district for the support of the high school. (See Sec. 87, Chap. 148). A high school maintained by a dis- trict is not a legal entity; it is merely an institution, the property of the dis- trict, and is under the control of the board of trustees of the district. Prior to the adoption of chapter 148 there was no law authorizing a levy to be made upon the district for purely high school purposes. The high school was merely a part of the school system of the district to be supported out of !'he general and special levies on the dis- trict whenever and to whatever extent the school board should find necessary. The high school, as such, did not ac- quire any vested right in any part of any tax or in any interest or penalty as it was and is not a legal entity. If there are at present any outstand- ing registered warrants issued by the district for high school purposes prior to the enactment of Chapter 148, they can, of course, be paid out of this de- linquent interest and penalty awarded to the district in the above cited case. They are an obligation of the di&"irict the 'same as if issued for any other purpose by it. The high school, how- eyer, is not entitled to any part of the money as a matter of right as it is not, as before stated, a legal ent,ity and is wholly subject to the judgment and superYision of the hoard of trus- tees. The funds belong to the district and not to any particular department of the district. They are subject to dis- posal by the school board as are other funds of the district to be used for the support anti maintenance of the ele- mentary grades.