The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5263 February 6, 1978 SCHOOLS AND SCHOOL DISTRICTS: Transfer of territory from one school district to another. STATE BOARD OF EDUCATION: Transfer of territory of school district from one school district to another. The State Board of Education is authorized to hear an appeal from a decision of a joint intermediate school board which has denied a petition to transfer territory from one school district to another. Where the State Board of Education reverses a denial action of a joint intermediate school board and, in so doing, the State Board grants a petition to transfer territory from one school district to another, the electors of the school district from which the property is to be transferred must also approve the transfer where the area to be transferred contains more than 10% of the latest assessed valuation of the school district. Where such an election must be held, the State Board of Education is not financially responsible for the cost of the election. Dr. John W. Porter Superintendent of Public Instruction Michigan National Tower Lansing, Michigan You have requested my opinion on three questions which may be stated as follows: 1. Under Article 2, Part 11 of the School Code of 1976, 1976 PA 451, Sec. 951 et seq; MCLA 380.951 et seq; MSA 15.4951 et seq, does the State Board of Education have the authority to hear an appeal, where a joint intermediate school board (1) has denied a petition to transfer territory from one school district to another? 2. Assuming the answer to question 1 is in the affirmative, if the State Board of Education reverses a denial action of the joint intermediate school board and grants a petition to transfer territory, must the electors of the school district from which the property is to be transferred also approve the transfer when the area to be transferred contains more than 10% of the latest assessed valuation of the school district? 3. If an election must be held, is the State Board of Education financially responsible for the cost of the election? You indicate that the State Board of Education has received an appeal requesting the transfer of certain territory from one school district to another school district. That transfer was initially denied by a joint intermediate school board and, thereafter, an appeal was filed. You also indicate that the latest assessed valuation of the territory in question is more than 10% of the assessed valuation of the entire school district. Article 2, Part 11, of the School Code of 1976, supra, provides for the transfer of territory between school districts. When the territory of the affected school districts extends into two or more intermediate school districts, the affected intermediate school district boards of education must meet jointly and sit as a single board to act upon the request for the transfer of territory. The School Code of 1976, Article 2, Part 11, supra, Sec. 953. Where the joint board transfers territory or fails to transfer territory, the State Board of Education is empowered to consider appeals from the action of a joint intermediate school board. The School Code of 1976, Article 2, Part 11, supra, Sec. 971 states: '(1) One or more resident owners of land considered for transfer from 1 school district to another, or the board of a school district whose territory is affected, may appeal the action of the intermediate school board or joint intermediate school boards in transferring the land, the failure to transfer the land, or action relative to the accounting determination to the state board within 10 days after the action of determination by the intermediate school board or the joint intermediate school boards. If the intermediate board or the joint intermediate school boards fail to take action within the time limit under section 951, the appeal may be made to the state board within 10 days following the termination of the period. The pendency of an appeal shall suspend the action or determination of the intermediate school board or joint intermediate school boards. '(2) The state board may confirm, modify, or set aside the order of the intermediate school board or the joint intermediate school boards. The action of the state board on the appeal shall be final.' (emphasis added) In School District No. 3, Mt. Haley Township v State Board of Education, 364 Mich 160; 110 NW2d 821 (1961), an appeal was taken to the State Board of Education after the joint county boards of education (2) of Midland, Saginaw and Gratiot Counties denied the transfer of territory from the Midland School District to the Merrill Community School District. On appeal, the State Board of Education entered an order setting aside the determination of the joint county boards of education and directed the transfer of territory in accordance with the petition filed. Thereupon, the plaintiff instituted a suit in equity contending that the State Board of Education had no authority to set aside the order of the county boards of education, since the county boards had denied the petition to transfer territory. The Michigan Supreme Court, in upholding the dismissal of the suit, stated: 'In construing the section (3) to ascertain the legislative intent all of the provisions thereof must be given consideration. It will be noted that the right to appeal from the failure or refusal of a county board of education, or of joint boards, to transfer lands under circumstances of the nature here involved is expressly granted. Such language necessarily implies authority on the part of the appellate board to set aside a denial of the prayer of the petition for transfer, and to grant the same if deemed proper. If appellant's construction of the final sentence is correct the conclusion would necessarily follow that the legislature had deliberately nullified the right to appeal in the event of a denial of transfer. Applying commonly accepted rules of statutory construction we think that the language of the final sentence of the section [Sec. 467 of the School Code of 1955, supra] must be interpreted in accordance with the express grant of the right to appeal from an order denying transfer. The trial judge construed the word 'modify' as embracing authority to set aside a denial of a petition and to grant affirmative relief. Such meaning of the term is, we think, consistent with the obvious intent of the legislature in the enactment of the section quoted.' (emphasis added) 364 Mich at 164-165; 110 NW2d at 823 Similarly, in a letter opinion to Mr. John William Thomas, dated April 7, 1960, the Attorney General held that the legislature, in empowering the State Board of Education on appeal to confirm, modify, or set aside an order of a county board of education, intended to vest in the State Board of Education the discretion possessed by a county board of education in acting on a petition for transfer. Thus, the State Board of Education may, in its discretion, order transfer of territory from one school district to another where a county board of education refuses to make the transfer or refuses to take any action. Therefore, in response to your first question, it is my opinion that under the School Code of 1976, Article 2, Part 11, supra, the State Board of Education does have the authority to hear an appeal where a joint intermediate school board has denied a petition to transfer territory. In regard to your second question, as noted earlier, the latest assessed valuation of the territory in question is more than 10% of the assessed valuation of the entire school district from which the property is to be transferred. In light of those circumstances, we must consider the School Code of 1976, Article 2, Part 11, supra, Sec. 951. That section states: 'An intermediate school board may detach territory from 1 school district and attach the territory to another if requested to do so by resolution of the board of a school district whose boundaries would be changed by the action, or if petitioned by not less than 2/3 of the persons who own and reside on the land to be transferred. The intermediate school board shall take final action within 60 days after the receipt of the resolution or petition. The territory shall be contiguous to the school district to which it is attached. If the latest assessed valuation of the area to be detached is more than 10% of the latest assessed valuation of the entire school district from which it is to be detached, the action of the intermediate school board shall not be effective unless approved by an affirmative vote of a majority of the school electors of the district from which the territory is to be detached.' (emphasis added) Thus, the above quoted statutory language provides that where an intermediate school board orders the transfer of territory, and the area to be transferred is more than 10% of the latest assessed valuation of the school district from which the territory is to be detached, the order of transfer is not effective 'unless approved by an affirmative vote of a majority of the school electors of the district from which the territory is to be detached.' Since the joint intermediate school board did not grant the requested transfer in question, and assuming the State Board of Education reverses that denial action, the question arises as to whether the requirement, that the school electors of the affected district approve the transfer in order to make it effective, is applicable. As noted above, the Attorney General, in a letter opinion to Mr. John William Thomas, dated April 7, 1960, supra, discussed the statutory authority of the State Board of Education when it considered on appeal a property transfer which it was denied by a county board of education. In that letter opinion, Attorney General Adams states: '. . . that the State Board of Education on appeal has the same discretionary authority which the County Board of Education had when it considered the petitions of Cass City Public Schools, there being no appeal.' (p. 2) In view of the foregoing, it follows that the State Board of Education on appeal has the same discretionary authority as joint intermediate boards of education have when considering petitions for property transfers. By the same token the State Board of Education is subject to the same limitations which are placed upon joint intermediate boards of education. One such limitation is that when a joint intermediate board of education orders the transfer of property, and the area to be transferred is more than 10% of the latest assessed valuation of the affected school district, that order is not effective 'unless approved by an affirmative vote of a majority of the school electors of the district from which the territory is to be detached.' The School Code of 1976, Sec. 951, supra. Statutes should be construed in accordance with the manifest intent of the legislature. Geraldine v Miller, 322 Mich 85; 33 NW2d 672 (1948). The legislative intent of this provision is to require the school electors of the affected school district from which the territory is to be detached to approve the transfer before it becomes effective, when the property to be transferred is more than 10% of the latest assessed valuation of the school district. The legislature has not provided that the State Board of Education, on appeal, may order a transfer of territory from one school district to another, where the territory to be transferred is more than 10% of the lastest assessed valuation of the school district from which it is to be detached, without the vote of the school electors of the school district from which the territory is to be detached. Thus, in response to your second question, it is my opinion that if the State Board of Education reverses the denial action by the joint intermediate school board, the electors of the district, from which the property is to be detached, must approve the transfer in order to make it effective, inasmuch as the area to be transferred is more than 10% of the latest assessed valuation of such school district. Turning to your last question, it must first be noted that the provisions of the Michigan Election Law, 1954 PA 116, MCLA 168.1 et seq; MSA 6.1001 et seq, govern school elections so far as they are applicable and not inconsistent with the School Code of 1976, MCLA 380.1 et seq; MSA 15.4001 et seq. The School Code of 1976, supra, Sec. 1071. The payment of expenses of school elections in school districts is governed by the School Code of 1976, Art 2, Part 13, supra. There is no provision therein which requires the State Board of Education to pay the cost of an election to determine whether property will be transferred from one school district to another. Therefore, in response to your final question, it is my opinion that the State Board of Education is not financially liable for the cost of the election in the school district from which the property is to be transferred. Frank J. Kelley Attorney General (1)
(2)
Intermediate boards of education are the successors to county boards of education.(3)
Part 2, Chapter 5, Sec. 467 of the School Code of 1955, 1955 PA 269. It should be noted that this provision was substantially similar to Article 2, Part 11 of the School Code of 1976, supra.