Citation Numbers: 69 Op. Att'y Gen. 139
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 6/17/1980
Status: Precedential
Modified Date: 4/15/2017
FRED A. RISSER, President Wisconsin State Senate
As Chairman of the Senate Committee on Organization, you request my opinion on two questions which relate to the power and duty of a district vocational, technical, and adult education (VTAE) board to charge tuition and fees.
Your first question is:
Is Section
38.24 (3)(b) Wisconsin Statutes making the District Board of a student's district of residence liable for payment of non-resident fees when attending another district VTAE school unconstitutional as a denial of equal protection?
Under sec.
Section
The district board of a student's district of residence is liable for the nonresident fee under par. (a) 1 only if the program in which the student enrolled is not offered by the district of residence and the district board of attendance files notice of enrollment under s.
38.22 (2). In the case of any disagreement between district boards as to liability under this paragraph, the state board shall make the final determination.
I am of the opinion that there is no denial of equal protection.
I do not believe my conclusion is contrary to Buse v. Smith,
Buse is inapplicable because here the taxpayers of the nonoffering district receive benefits, not only because their own residents enjoy the availability of training but also because taxes are saved by avoiding unnecessary duplication of programs. Acting under sec.
The situation you raise is far closer to the issues the court treated in Manitowoc v. Manitowoc Rapids,
The court in Manitowoc also noted that the resident districts had the choice whether to offer the instruction. Id. I do not believe that fact, however, was necessarily dispositive in the court's thinking. The court's later decision in West Milwaukee supports this inference. There, the court upheld the state's method of financing vocational education in part through area boards. Relying on an earlier decision, the court in part reasoned:
The court noted that the statute in issue was enacted "as a part of the general policy to establish an efficient state highway system, and must be interpreted in the light of such legislative purpose." Hence the court recognized that the bridge was a part of a state highway system, just as appellants contend a state vocational system is here involved.
In evaluating the reasonableness of legislative classifications, then, it is necessary to look first to the overall, state legislative objective. That objective includes avoidance of undue duplication of vocational instruction by foreclosing some districts from providing certain instruction. It is rational to require these nonoffering districts to pay the tuition costs of its residents who take courses in other districts. This plan simply requires the taxpayers to fulfill their responsibility for vocational education either by providing the instruction or, if that method is denied in the interest of avoiding costly duplication, by paying the tuition costs of another district.
Your second question is:
Can VTAE districts legally enter into agreements with other VTAE districts to waive the nonresident tuition requirement provided in sec.
38.24 (3)(b), Stats., which do not involve vocational-adult courses?
In my opinion the answer is no.
Section
There is no similar provision permitting agreements to waive for other than vocational-adult courses. It is a rule of statutory construction that the express mention of one item impliedly excludes another. Appleton v. ILHR Department,
Moreover, agencies created by the Legislature have only such powers as expressly are granted to them or necessarily are implied, and any power must be found within the four corners of the statutes under which they proceed. State ex rel. Farrell v.Schubert,
This result is consistent with sec. 66.30 (2), Stats., which provides that municipalities may contract with each other "for the receipt or furnishing of services." Each municipality, however, can act only "to the extent of its lawful powers." Id. As noted above, the Legislature has taken in hand the question of waiver, has limited it to vocational-adult education, and has not otherwise empowered waivers in additional areas.
Similarly, it follows that the power under sec.
In reliance upon 31 Op. Att'y Gen. 155 (1942), it has been suggested that the power of the district boards to charge tuition is discretionary and that, therefore, the power to contract away the nonresident tuition requirements is implied from the discretionary power. 31 Op. Att'y Gen. 155 (1942) discusses an earlier statute relating to charging nonresident tuition. Section 41.19, Stats. (1941), provided that the local VTAE board "is authorized to charge tuition for nonresident pupils." The opinion concluded that the term "is authorized" is permissive rather than mandatory. In contrast to the statute then in effect, however, sec.
BCL:CDH
Sigma Tau Gamma Fraternity House Corp. v. City of Menomonie , 93 Wis. 2d 392 ( 1980 )
Buse v. Smith , 74 Wis. 2d 550 ( 1976 )
City of Appleton v. Department of Industry, Labor & Human ... , 67 Wis. 2d 162 ( 1975 )
Village of West Milwaukee v. Area Board of Vocational, ... , 51 Wis. 2d 356 ( 1971 )