GROVER SELLERS             AUSTIN   11.TmxarJ




 Hon. Joe Beeder, Jr.
 County Attorney
 Knox county
 Benjamin, Texas                    OpinionNo. O-6953

 Dear Sir:                          Re: Should a correctedoensusroll
                                        be used by the Departmentof
                                    Educationin computingState aid due
                                    .&independent schooldistrict?

        We have for attentionand reply your letter of November23, 1945,
 which reads as follews:

 "In April, 1945, Munday IndependentSchool Districtrendereda roll of the
 childrenof scholastioage to tie Xnox Counw Superintendentts   office. The
 oensus taker erroneouslydated two birth dates a year later than she should
 have. As a result the County Superintendent struckthe two children'snames
 concernedoff the Munday roll of enumeratedsoholastios.As a result,the
 Munday schoolfell two short of the enumeratedscholasticsthat the school
 authoritiesbelievedthey should have on the~roll. likenthe first per oap-
 ita paymentwas made to Munday IndependentSchool Districtit was two short
 of the expectedamount.

 *On investigationthe facts mere discoveredand the names of the tvm chil-
 dren that had been eliminated'bythe Knox County Superintendent
                                                              were subunit-
 ted to the State EnumerationOffioe alongwith birth oertifioatesof the
 two children.

 eased upon the above facts,the followingquestionsare sulxnitted,

 "1. Hill the correctedroll at the State Superintendent'sOffioebe reoog-
 nieed for purposeof aaloulatingstate aid to the Munday,Independent
                                                                  School
 Distriotl

 *2. What is the meaning of the phrase 'MO ohange in oensus*as set forth
 in the presentrural aid bill Art. I, See, 61

 "3. Does the term loensus*in Art. I, Sec. 6 meen Federalcensus or enum-
 erated sohelastios?'

        In anawering“yourfirst question/we assume that "the names of the
 two childrenthat had been eliminated~bythe ~QIOXCounty Superintendent
 were suhnittedto the State EnumerationOffice alongwith the birth oertif-
 ioates of the two children,"after Novemberl,1945; the dead line for
Hon. Joe Reeder,Jr., page 2 (O-6963)



census changesas providedin Article I, Section6 of Senate Bill 167,
49th Legislature,which reads as follows:

"Sec. 6. Ro adjustmentof transfersor census ohangesmade after November
1st of the currentschoolyear shallbe reoognitedin making grants of any
type of aid under the provisionsof this Aot.” (Underscoring
                                                          ours)

       This is a sectionwhich has not appearedin formerActs providingfor
rural aid and, consequently, wehave found no court decisionslnhichhave pas-
sed upon the validityor constitutionality  of the provision. The wording of
the sectionwe think is clear and the intentionof the Legislaturemust have
been to prevent any changesin census reoords in so far as such would affect
the amountof rural aid to which any sohooldistrictwould be entitledafter
November1st of the currentschoo1year. The first questionwc must decide
is whetheror not such a orovisionwould 'becontrarvto ArticleVII. Section
5 of our Constitution whioh provides,in part, as fbllowsr

"And the availableschoolfund herein providedshall be distributedto the
severalcountiesaccordingto their soholastiopopulationand appliedin
such marmer as may be providedby law." (Underscoring
                                                   ours)

       DI the ease of ldueeae,
                            et al, v8. Marrs, 40 S.H. (2)'31,our Supreme
County,Judge Curetonwriting,renderedan opinionon the oonstitutionelity
of the Rural Aid AppropriationAct,   effectivefor the bienniumbeginning
September1, 1929. We think it well to quote pertinentparagraphsfrom
this opinions

"The limitationin Seotion5, Artiole 7, declaringthat the availableschool
fund 'mustbe appropriatedtc countiesaccordingto scholasticpopulation,
has alwaysappliedand now appliesonly to the available sohool~fund,'
which is clearlvdefinedin that section. Constitutional provisions.like
statutes,are properlyto be interpretedin the light of the conditionsex-
isting at the time of their adoption,the generalspiritof the times, and
the prevailingsentimentsof the people."

"tinderthe constitution,
                       our publia schoolsare essentiallystate schools,
and authorityto oontroltheir operation, exceptas otherwiseprovided,is
includedamong the powers conferredupon the Legislature.*

"Section1 of Artiole 7 of the Constitutionreads: ‘A generaldiffusionof
knowledgebeing essentialto the peserrrationof the libertiesand rights
of the people,it shallbethe duty of the Legislatureof the State to es-
tablishand make suitableprovisionsfor the supportand maintenanceof an
effioientsystemof public free schools."

"The purposeofthissectionas writtenwas not only to recognizethe inher-
ent powers in the Legislatureto establishan educationalsystemfor the
State, but also to~makeit the,mandatoryduty of the Legislatureto make
suitableprovisionfor the supportand maintenanoeof an efficientsystem
of publkc free sahools,'necessarilyconferredthe power to make the msn-
date effective. . . . Since the Legislaturehas the mandatoryduty to
Hon. Joe Reeder, Jr., page 3 (C-6953)



make suitableprovisionfor the su~uertand rrmintenanoe  of A~~-
                                                          an ~At'ficient
                                                             ~~~ ~~~--
q+bik 9f public free sohools,and--has the power to pss any law relative
thereto,not prohibitedby the Censtittition, it necessarilyfollowsthat
it has a choice in the selectionof methodsby which the cbjeot cf%,e
organiclaw may be effeotuated,.Thb Legislaturealone is to judgewhat
means are necessaryand apprcpriatefor a nuruosewkioh the Constitution
makes legitimate.-The legisl;tive~determination of the methods,restric-
tions,and regulationis final,eroeptmhen so arb1trsr-y   as te be viola-
tive of the constitutionalrights of,a,citizen."

"The word 'suitable'used in oonriectionwith the word 'provision'in this
sectionof~theConstitutionis an elaabicterm. deuendineupon the necer-
sitiesof changingtimes or oonditions,and.olearl$leaves-%Jthe Legisla-
ture the right to determinewhat is .suitableand its determinationwill
not be reviewedbythe courts if the act has a real relation to the subject
and object of the Constitution.” (lkrdersooring
                                              ours)

"Equalproteqtionof laws is securedif the statutesdo not subjectthe
individualte ubitruy exerciseof the peters of government. It is well
settledthat legialationis not open to objectionif all whe are brought
under its influenceare treatedalike in the same ciroumstanoes.w(&de+
scoringours)

       Seo$icn~S'~%&ole I,:'&,'&167, had as its purposethat of assisting
i-k departmen%in the detail administrationofthe entireact. As stated
above, it is a new prevision,plaoed intothe bill after experienoingthe
diffioultyof administering similaracts minus such a prevision. We do not
think it arbitraryor unreasonablee It appliesalike* all schoolsand
districtswhich seek aid under the provisionsof the Rural&id lU.11.

       Articles2816, 2817 and 28178RevisedCivil Statutes,previdefor
the methods to l-efollswedin the takingand repsrtingof soholastiooen-
*us. Article 26178 requiresthe oensus taken to~submithis report to the
CountySuperintendent   en or beforeMay 1st of eaoh yeare '&ticle 2819
requiresthe County Superintendent  to make consolidatedrolls and csoruti-
nice carefullythe work of the census trustees,and rhall have p~$s
summonwitnesses,take affidavitsand correotany errors he rnw flmd in
azq oensus trustee'sroll8 9 . ." and tiis suue articlealso requires
Zhe CountySuperintendent   to suWlt his consolidatedrolls t-sthe State
Superintendent en or before 'Julylst of eaoh year. There is, thesefore,
a period of sir monthr, i.e.,May 1st to Novemberlst, duringwhiahtime
errors in the werk ef the census takersmay lx corrected. We find no
legal objeotionto $eation6 of Artiole I, S.B. 167, as passed bythe 49th
Legislature,and must thereferssneweryour first questionnegatively.

       Your seoondquestionis,%mt is the mesning of the phrase 'no
change in census*as set forth in the presentrural aid bill, Art. I,
Sea. 67”  The dxaotwording of the sectionis as follows8"No adjustment
of transferscr census changesmade after November1st of tha current
schoolyear shall be recognieedin making grants of any hype of aid
Hon. Joe Reeder, Jr., pace 4 (O-6953j




under the prmisions of thisApt." Wa believe itwastia intentionof
the Legislaturein plaoingthis prmision in the Bill to effeota "dead
line" after which no changes,or correotionswhioh would alter the
amount of Rural&id to which a given disMat may be entitledto receive,
could be recognized.

      In answer to your third qusstlon,you are advised that it is the
consideredopinionof this deparkmntthat the word "oensus"as used in
Seotion6 of Article I, S. B. 167, refersto ScholasticCensus and not tile
FederalCensus.

      busting the above satisfaotor$ly'ansrers
                                            your Inquiry,we rmain


                                             Very trulyyours

                                        ATTORNEYGQEBAL OF TEXAS

                                         w /s/~E. 8. DeGeurin


                                                 E. M. DeGeurin
EMDeGlbtl9gW                                         Assistmt

APPROVEDDEC 7, 1945
/d GROVER SEUERS
ATTORNEYGENEPALOFTEXAS                            AF.PROVED
                                               Opinion Committee
                                                    Ebrm
                                                   Chairmm
