State ex rel. School Dist. No. 1, Niobrara County v. School Dist. No. 12, Niobrara County, 1777

• Decision Date: 14 February 1933
• Docket Number: 1777
• Citation: 18 P.2d 1010,45 Wyo. 365
• Parties: STATE EX REL. SCHOOL DIST. NO. 1, NIOBRARA COUNTY v. SCHOOL DIST. NO. 12, NIOBRARA COUNTY, ET AL
• Court: Wyoming Supreme Court

18 P.2d 1010

45 Wyo. 365

STATE EX REL. SCHOOL DIST. NO. 1, NIOBRARA COUNTY v. SCHOOL DIST. NO. 12, NIOBRARA COUNTY, ET AL

No. 1777

Supreme Court of Wyoming

February 14, 1933

Rehearing denied June 13, 1933.

APPEAL from the District Court of Niobrara County; C. O. BROWN Judge.

Proceeding by the State on the relation of School District No. 1 Niobrara County, against School District No. 12, Niobrara County, and another. Judgment for defendants and plaintiff appeals.

Affirmed.

The cause was submitted for the plaintiff and appellant on the brief of Fagan and Miller, of Lusk, Wyoming.

The action is for the collection of tuition fees from respondent district for four pupils admitted into the high school of plaintiff district from said respondent. Plaintiff's demurrer to paragraph 1 of defendant's answer should have been sustained. 99-825 R. S. 1931. Defendant district did not maintain a four-year high school. Plaintiff district was required to receive non-resident pupils; 99-827 R. S. Plaintiff's demurrer to paragraph 2 of the defendant's answer should have been sustained. Laws 1923, Chapter 51. Rates of tuition are fixed by statute; 99-826 R. S. The evidence clearly established the residence of the children in School District No. 12. State v. Penter, 96 Mo. 416, 70 S.W. 375. A parent going into a district temporarily for the purpose of sending his children to school therein, is not entitled to school privileges without payment of tuition; Barnard District v. Matherly, 84 Mo.App. 140; State v. District, (Nebr.) 75 N.W. 855; Gardener v. Board of Education, (S. D.) 38 N.W. 433. The evidence introduced by defendants relating to a school bus should have been rejected as irrelevant. There is no statutory authority for one district to contract to run a bus to another district: 99-820-821-825 R. S. The power of municipal corporations are such as are expressly conferred by statute. Stowell v. Prentiss, 323 Ill. 309, 50 A. L. R. 585, 24 R. C. L. 569. School boards acting without jurisdiction are amenable to court action: Knowlton v. Baumhover, (Ia.) 166 N.W. 202, 24 R. C. L. 574. The statute contains no power to contract with another district to take care of high school pupils: 99-317 R. S. Board of School District, (S. D.) 122 N.W. 411; Vale Dist. v. School District, (S. D.) 22 N.W. 948; Bensinger v. School District, 56 Pa. S.Ct. 226; Schollenberger v. School District, 56 Pa. S.Ct. 233. Tuition for the full nine month term is collected. Gettysburg v. Cumberland District, 50 Pa. S.Ct. 87; District v. Wilson, (Nebr.) 164 N.W. 709; State v. Dorsey, (Nebr.) 187 N.W. 879. Plaintiff relied upon the statute making it compulsory for a high school district to receive outside pupils and is entitled to recover. The maximum rate of tuition per pupil is the actual cost for maintenance of the school, as certified by the president and clerk of the district maintaining such school.

For the defendants and respondents, the cause was submitted on the brief of Judson P. Watson and Frank A. Barrett, of Lusk Wyoming.

Districts which do not maintain a four-year high school course, pay outside tuition for pupils of such district who have completed the course offered therein: 99-825 W. R. S. The completion of the course offered therein, is a condition precedent. The pupils in question actually resided in plaintiff district; no permit was signed by defendant district covering these pupils; defendant district maintained a four-year high school by bussing pupils to Manville. Some confusion exists as to the meaning of the word "reside" as found in Sec. 99-825, R. S. The law provides that tuition for attending another district shall be paid by the district where the parents are domiciled. Sec. 2250, W. C. S. Schools are accessible to children resident therein, including high schools: 35 Cyc. 811. Residence does not mean legal residence for voting purposes: 275 Ill. 276, 48 A. L. R. 1093, 299 F. 206, 2 S.W.2d 654. The chief concern of the state is the education of the child. 77 Pa. S.Ct. 75. The evidence shows the children in question resided in District No. 1. Defendant district signed no certificate of permission for these pupils to enter school in District No. 1. 99-825 W. R. S. A district judge cannot take money from one county and give it to another. Fremont v. Natrona, 275 P. 105. District boards have authority to select pupils that may be sent to another district. Laws 1923, Chap. 51; 201 Ill.App. 429. Defendant district maintained a four-year high school according to the evidence in this case. The word "maintain" means to bear the expense of. Merrill v. Spencer, 46 P. 1097; Rhodes v. Mummery, 48 Ind. 217. Nearly one-half of the operating expense of the Lusk High School is maintained by county tax and by the State and Federal Governments. Defendant district maintained a high school in the Manville District. A school district derives its income from the sources prescribed by law. The only items that plaintiff had a right to take into consideration in computing the cost of tuition are such as it raised by special tax, poll tax, and its proportionate share of the county general tax. Items received from government oil royalty and other outside sources should not be included. Plaintiff failed to establish any proof as to cost per pupil for the maintenance of its high school. The judgment below should be sustained.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

Plaintiff and Appellant, School District Number One of Niobrara County, Wyoming, brought an action in the District Court of that county against School District Number Twelve, also located in said county, to recover tuition fees for four school children who were admitted as pupils into the high school maintained by the school district first above mentioned. The parties will generally hereafter be referred to, the plaintiff and appellant as "District No. 1," and the defendant and respondent as "District No. 12," respectively. Failing to recover in the action below, the record has been brought here by the unsuccessful party, for review by direct appeal.

The amended petition of District No. 1 contained four separately stated causes of action which, except for the name of the pupil for whose tuition recovery was sought and the school year each attended said district's high school, are substantially identical. The children affected and their years of attendance are stated to be: Billy Magoon and Virginia Robinson, each for the school year 1928-1929; Barbara Browning and Lillian Baughn, each for the school year 1930-1931.

Summarizing and omitting formal parts, it is alleged that these children were all of school age, that they were residents of District No. 12, that they had completed the course offered in the district last mentioned, having passed the eighth grade examinations and were fitted to enter the high school of District No. 1; that demand was made on District No. 12 for the tuition due on account of the tuition fees for said children and that said district has refused to pay them; that on or about October 25, 1930, under the provisions of Ch. 64, Wyo. Session Laws of 1923, the Board of District No. 1 filed with the County Treasurer of Niobrara County an itemized statement of said indebtedness on account of tuition of each of these children, certified by the director and clerk of District No. 1. The sum of $ 150 for each pupil as the actual cost of maintaining the high school per pupil in said district is averred and judgment is asked in that amount--a total of $ 600.

The answer of District No. 12 was in substance a general denial coupled with special defenses that during the school years mentioned in the petition aforesaid, said district maintained a high school and provided adequate high school facilities for each of the pupils aforesaid; that during said school years, these children resided within District No. 1; and that none of said pupils presented to District No. 1 written statements of permission signed by the director and clerk or any member of the Board of Trustees of District No. 12, authorizing said pupils to enter the high school of District No. 1. A reply filed denied the new material set out in this answer.

The cause was tried to the court with the result that a general finding in favor of District No. 12 and against District No. 1 was made upon which a judgment that the party last mentioned take nothing by its petition was entered.

On the trial, it was stipulated by counsel that during the school years 1928-1929 and 1930-1931 District No. 12 did not maintain a four-year high school, but that during the year 1928-1929 said district operated a high school for the ninth and tenth grades under a permit granted by the State Board of Education. Additionally, the County Superintendent of Schools of Niobrara County testified that this permit high school was conducted according to regulations during the school year 1928-1929, and the grades earned in that school were accepted in an accredited high school; also that she is the custodian of the certified records of the work performed in said permit high school, that the work was certified as standard, and that she accepted that certification; further, that such a high school is standardized and inspected by the State Department of Education and the work carried on under its direction.

The statute upon which District No. 1 relies for recovery of the tuition fees sued for is Ch. 22 of Laws of Wyo. 1921 as amended by Ch. 64 of Laws of Wyo. 1923, Sec. 1 thereof reading:

"All school districts within the State of Wyoming which do not maintain a four-year high school shall pay tuition for pupils of such district who have completed the course offered therein and who desire to attend high school in another...