Montana Attorney General Opinion 17-187

Opinion No. 187. Schools and School Districts-Trus- tees-Tuition-Rate for N on- Resident Pupils. HELD: When school trustees close their school under the provisions of Section 1010, R. C. ~l. 1935, they are authorized to pay to the district where their children are attending, a share of the cost of maintaining such school, based on the proportion in relation to the number of children of their dis- trict bears to the total number of children enrolled in the other school. 2. School trustees. under Section 1015-3, R. C. M. 1935, have authority to charge tuition for non-resident pu- pils, but such tuition charged must be reasonable. 3. School trustees may charge only one rate for non-resident pupils; either that fixed by Section 1010, or by 1015-3; but not both rates. Mr. John J. Cavan County Attorney Jordan, Montana My dear ;\1 r. Cavan: November 2, 1937. You have submitted to this office the question as to what extent ·the trustees of a closed school can appro- priate funds of their district to assist in the support of a school of another district where the children from the closed school have been sent. Section 1010, among other provi- sions, provides that: "When a district is relieved of the necessity of supporting any school by the fact that all or a part of the children residing in the district are being provided with schooling in an- other district. it shall be the duty of the trustees in the district holding no school to assist in the support of the school where the children of their district are attending, in proportion to the relation the number of children from their district attending school in another district bears to the total number of children enrolled in the school in the other district." Subdivision 3 of Section 1015 pro- vides: "Every school board, unless other- wise especially provided by law shall have the power and it shall be its duty: To determine the rate of tui- tion of non-resident pupils." The designated portions of the above statutes must be read together in their application to your particular ques- tion. Section 1010 authorizes the trustees of a district to close their schools, under certain conditions, and send their children to a school in another district, and when such is done the trustees of the closed school are authorized to assist in the support of the school where the children are sent, in pro- portion to the relation the number of children from their district attending school in another district bears to the total number of children enrolled in the school in the other district. In other words, Section 1010 defines and cir- cumscribes the exten t to which the trustees of the closed school may ap- propriate the funds of their district in payment towards the cost of the school where the children have been sent. Subdivision 3 of Section 1015 au- thorizes the district of the school where the children have been sent to determine the rate of tuition charge- able for the children of the closed district. In the case of Peterson v. School Board, 73 Mont. 442, it is held that the trustees are acting in a quasi-judicial capacity, and that the board has dis- cretion in fixing the amount of tuition charges. Although within the dis- cretion of the trustees of the function- ing school to admit children from a closed school, yet, having done so, we believe that the amount of tuition chargeable cannot be arbitrary or un- reasonable, and that the closed school shall bear its proportionate share of the cost of maintaining the school where the children have been sent. Whether the funds paid by the closed school to the functioning school are paid under the guise or form of tuition, or maintenance. or in whatever char- acter it may be styled, or under Sec- tion 1010 or lOIS is immaterial. The total amount to be paid by the closed school to the functioning school shall be an amount in relation to the whole OPINIONS OF THE ATTORNEY GENERAL 227 cost of operating 'the functioning school as designated in the language found in Section 1010. In other words, the functioning school cannot collect its proportionate share, as defined in Section 1010, from the closed schools, and at the same time charge the closed school additional amounts for tuition.