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October 3, 1972
Honorable Ronald L. Hendry
946 County City Building
Tacoma, Wa. 98402
Cite as: AGLO 1972 No. 75 (not official)
Attention: !ttMr. Richard A. Monaghan
Deputy Prosecuting Attorney
By letter previously acknowledged, you requested the opinion of this office on questions we paraphrase as follows:
1. What procedures must be followed before a ninth to twelfth grade student may transfer to a public school not situated in the district in which he resides, when grades nine through twelve are offered in the district in which the student resides, and when the transfer is not pursuant to a special program?
2. If a ninth to twelfth grade student is allowed to transfer from his resident district to another school district when his own school district offers grades nine through twelve and when the transfer is not pursuant to a special program, must the transferring student pay tuition to the school district he attends and, if so, how much?
We conclude that under the conditions stated in the first question a student may transfer school districts but only if the boards of directors of the school district in which the student resides and of the district to which the student wishes to transfer mutually agree to the transfer and further agree that the transferring student will best be accommodated in the receiving district. In answer to the second question we conclude that unless the board of directors of the resident school district and the receiving school district make arrangements in lieu of tuition which are approved by the State Superintendent of Public Instruction, the transferring student must pay to the receiving school district a reasonable tuition charge as set by the state superintendent.
The reasoning for these conclusions is explained in the following analysis.
[[Orig. Op. Page 2]]
Initially, we note that a school district is a municipal corporation (RCW 28A.58.010) and as such has only those powers expressly granted by the legislature, those necessarily or fairly implied in or incidental to the powers granted, and those essential to the declared objects and purposes of the district. Seattle High School Chapter No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994, 72 A.L.R. 1215 (1930); Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P.2d 78 (1934).
The general laws governing all classes of school districts are found in chapter 28A.58 RCW. This chapter establishes the elected board of directors as the governing body of the school district with certain enumerated powers. RCW 28A.58.190 and 28A.58.230 require school districts to accept certain individuals residing in the common schools of their district. The first of these statutes states that:
"Except as otherwise provided by law, common schools shall be open to the admission of all persons between the ages of six and twenty-one years residing in that school district."
And RCW 28A.58.230 provides that:
"Every school district shall admit on a tuition free basis all persons of school age who reside within this state, and do not reside within another school district carrying the grades for which they are eligible to enroll: . . ."
These two statutes read together require every school district to admit on a tuition free basis all school age children who reside in the school district. Neither statute grants to the board of directors discretion in accepting or denying a student admission to the schools of its district.
The only statute which grants the board of directors of a school district any discretion in this regard is RCW 28A.58.240 which states:
"Any board of directors may make agreements with adults wishing to attend school or with the directors of other districts for the attendance of children in the school district of either as may be best accommodated therein: Provided, That [[Orig. Op. Page 3]] unless such arrangements are approved by the state superintendent of public instruction, a reasonable tuition charge, fixed by the state superintendent of public instruction, shall be paid by such students. All tuition money must be paid over to the county treasurer within thirty days of its collection for the credit of the district in which such students attend."
The first requirement of this statute is an agreement between the board of directors of the resident and receiving districts. The statute states in pertinent part:
"Any board of directors may make agreements with . . . the directors of other districts for the attendance of children in the . . . district of either . . ." (Emphasis supplied.)
It is a basic principle of statutory construction that the words of a statute must be given their ordinary meaning unless a contrary intent appears, Rena-Ware Distributors v. State of Washington, 77 Wn.2d 514, 463 P.2d 622 (1970), Foremost Dairies v. State Tax Commission, 75 Wn.2d 758, 453 P.2d 870 (1969). An "agreement" is defined as:
"The act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations. The union of two or more minds in a thing done or to be done; . . . [Black's Law Dictionary (4th ed. 1951)]
". . . an understanding or arrangement between two or more people, countries, etc. (Webster's New Twentieth Century Dictionary unabridged, 2nd ed. 1962)
Giving the term "agreement" its ordinary meaning it is clear that more than one party must concur to a set of conditions. Thus, within the context of RCW 28A.58.240 we conclude that both the board of directors of the district in which the transferring student resides and the board of directors of the district to which the student wishes to transfer must assent to the transfer. If either the board of directors of the resident district or the receiving district does not want to allow a student to transfer from the district in which the student resides, the student may not transfer.
[[Orig. Op. Page 4]]
The second requirement of RCW 28A.58.240 is that the transferring student must be best accommodated in the receiving district. RCW 28A.58.240 says in pertinent part:
"Any board of directors may make agreements with . . . the directors of other districts for the attendance of children in the school district of either as may be best accommodated therein: . . ." (Emphasis supplied.)
Although it is clear from the statute that the receiving district must be most able to accommodate the transferring student, the statute fails to state who is to make this determination. It is a rule of statutory construction that a statute must be construed to make its language purposeful and effective rather than futile and meaningless. O'Connell v. Conte, 76 Wn.2d 280, 456 P.2d 317 (1969); DeGrief v. Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956). The only practical way of carrying out the clearly expressed legislative intent that a student only be allowed to transfer districts when he would best be accommodated in the receiving district would be to require the boards of directors of the two school districts involved in a transfer to make a determination that the transferring student would best be accommodated in the receiving district before a transfer was granted. Thus, we conclude that before a student may transfer from the district in which he resides pursuant to RCW 28A.58.240, the board of directors of the district in which the transferring student resides as well as the board of directors of the district to which the student transfers must agree that the student would best be accommodated in the receiving district.
As noted initially, a school district is a municipal corporation with only those powers expressly granted by the legislature, those necessarily or fairly implied in or incidental to the powers granted, and those essential to the declared objects and purposes of the municipal corporation. We have been unable to find express authority allowing the school districts' boards of directors to accept nonresident students except as granted by RCW 28A.58.240. The authority to accept students who do not reside in the school district could not be necessarily or fairly implied from any of the statutes we have reviewed. This conclusion appears to carry out the legislature's intent as expressed in chapter 28A.58 of the Revised Code of Washington. This chapter is to be read in pari materia, RCW 28A.98.040. It is a basic rule of statutory construction that courts will not ascribe to the legislature a vain act, and a statute should, if possible, be so construed that no clause, sentence or word shall be superfluous, void, or insignificant, State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970). RCW 28A.58.240 states:
[[Orig. Op. Page 5]]
"Any board of directors may make agreements with . . . the directors of other districts for the attendance of children in the school district of either as may be best accommodated therein: . . ."
If we were to conclude that the board of directors of the school district were implicitly empowered to accept students who do not reside in the school district, the above cited language from RCW 28A.58.240 would be deemed meaningless. This would be contrary to the above cited rule that statutes should be construed to avoid superfluous, void or insignificant language.
Another rule of statutory construction is that the express mention of one thing in a statute implies the exclusion of another under the rule ‑ "expressio unius et exclusio alterius", Bradley v. Department of Labor and Industries, 52 Wn.2d 78, 329 P.2d 196 (1958); Natural Gas Company v. Public Utility District No. 1 of Snohomish County, 77 Wn.2d 94, 459 P.2d 633 (1969). Under this rule of statutory construction it would be assumed that the legislature did not intend to grant the school district's board of directors the power to exercise their discretion in accepting students except when the conditions of RCW 28A.58.240 are met.
Finally, we conclude that the discretion to accept students who do not reside in the school board's district is not a necessary power granted to the board of directors to carry out the general purposes of the school districts ‑ to educate the children of the state. If the school districts are required to accept resident students who are eligible to enter the common schools, the paramount duty of the state to educate its children does not require that a nonresident student be accepted when that student has the opportunity to attend a common school in the district in which he resides.
Thus, we finally conclude that the boards of directors of the school districts are not empowered to allow a student to transfer between school districts within the context of the above posed question except when the conditions of RCW 28A.58.240 are met.1/
The second question you asked concerns the amount of tuition which must be charged a transferring student, if any, and the procedure for establishing the tuition rate if tuition is required.
Again, the pertinent statutory authority is RCW 28A.58.240 which states in part:
[[Orig. Op. Page 6]]
". . . Provided, That unless such arrangements are approved by the state superintendent of public instruction, a reasonable tuition charge, fixed by the state superintendent of public instruction, shall be paid by such students."
Reading this proviso in context with the rest of the statute, Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968), it is clear that "such arrangements" referred to in the proviso again refers to agreements between the affected boards of directors.
We conclude that under the proviso of RCW 28A.58.240 both the boards of directors of the resident district and of the receiving district must agree to some arrangement which the State Superintendent of Public Instruction is willing to approve. If the resident district and the receiving district are unable to reach an agreement which the State Superintendent of Public Instruction will approve, the State Superintendent of Public Instruction must set a reasonable tuition fee for the transferring student to pay the receiving district before the student may transfer. Accord, opinion to Senator Guess, supra.
We trust the above information will be of assistance to you.
Very truly yours,
Richard M. Montecucco
Assistant Attorney General
*** FOOTNOTES ***
1/Accord, opinion dated January 15, 1970 to State Senator Sam C. Guess.