ATTORNEY GENERAL

1. In Lieu of Providing Work in High School Branches, as Required of Boards of Education, Under the Provisions of Section 7764-1, G. C., a Board of Education May Transport to a High School Outside the District All Pupils of Compulsory School Age Who Have Finished the Ordinary Grade School Curriculum (7648, G. C.), and Who Live More than Four Miles from Any High School.-2. A Board of Education Maintaining a Second Grade or a Third Grade High School is Satisfying the Requirements of Section 7764-1, G. C., by Providing Work in High School Branches for Those Pupils Who Have Not Graduated from Such Second or Third Grade High School.-3. Where One Word or a Section Number Has Been Wrongly Used for Another and the Context Affords the Means of Construction, the Proper Word or Section Number Will Be Deemed Substituted or Supplied. In Section 7764-1, Where Provision is Made that Boards of Education Shall Provide Work in High School Branches, as Mentioned in Section 7648, G. C., an Error in the Section Number 7648 is Apparent and Such Section Number Should Read 7649, G. C., the Latter Being the Section of the General Code Which Defines What Shall Be Work in High School Branches in the Public Schools.

No. 2447-(Opinion Dated October 3, 1921.)

Hon. Vernon M. Riegel, Superintendent of Public Instruction, as Director of Education, Columbus, Ohio:

Dear Sir-Acknowledgment is made of the receipt of your recent request (as submitted by the assistant director) for the opinion of this department on the following questions:

"1.

May a board of education act under Section 7764-1, G. C., to transport to a high school outside the district, all pupils of compulsory school age who have finished the ordinary grade school curriculum, and who live more than four miles from any high school, in lieu of providing work in high school branches within four miles of the residence of each such child?

"2. Where a board of education maintains a second grade or third grade high school, is said board satisfying the requirements of Section 7764-1 as to providing work in high school branches?

Sections 7764-1, G. C., to which you refer, is a new supplemental section in the new compulsory education act (Bing Law),

effective August 25, 1921, and as enacted in 109 O. L., p. 380, reads as follows:

"Boards of education shall provide work in high school branches, as mentioned in Section 7648, General Code, at some school within four miles of the residence of each such child for those children of compulsory school age who have finished the ordinary grade school curriculum except those who live within four miles of a high school and those for whom transportation to a high school has been provided."

This section is supplemental to Section 7764, G. C., and should be read in conjunction with the latter. Thus Section 7764, G. C., reads as follows:

"The child in his attendance at school shall be subject to assignment by the principal of the private school or superintendent of schools as the case may be, to the class in elementary school, high school or other school, suited to his age and state of advancement and vocational interest, within the school district; or, if the schooling is not available within the district, without the school district, provided the child's tuition is paid and provided further that transportation is furnished in case he lives more than two miles from the school, if elementary, or four miles from the school, if a high school, or other school. The board of education of the district in which the child lives shall have power to furnish such transportation."

In your first question you desire to know whether a board of education may transport to a high school outside the district all pupils of compulsory school age who have finished the ordinary grade school curriculum and who live more than four miles from any high school, in lieu of providing work in high school branches within the four miles of the residence of each such child, and this is answered in Section 7764, G. C., supra, which says:

“*** if the schooling is not available within the district, without the school district, provided the child's tuition is paid and provided further that transportation is furnished in case he lives more than *** four miles from the school, if a high school. *****

In its closing language Section 7764, G. C., preceding 7764-1, G. C., specifically says that the board of education of the district in which the child lives "shall have power to furnish such transportation." If a board of education required to "provide work in high school branches" (7764-1) does not provide such work in the district, then it must provide such work for pupils concerned, by

transporting outside the district. Under Section 7690, G. C., the board may decide its method of providing high school work, but under Section 7764-1, G. C., such high school work must be furnished.

In your second question you desire to know "where a board of education maintains a second or third grade high school, is said board satisfying the requirements of Section 7764-1 as to providing work in high school branches?"

Section 7764-1, General Code, says that boards of education "shall provide work in high school branches, as mentioned in Section 7648, General Code," at some school within four miles from the residence of each such child of compulsory school age who has finished the ordinary grade school curriculum, excepting only these two groups:

1.

Those children who live within four miles of an established high school.

2. Those for whom transportation to a high school has been provided, the question of distance from such high school not entering.

Section 7764-1 says that the work in high school branches shall be in those high school branches as mentioned in Section 7648, General Code, and reference to Section 7648 shows an apparent error on the part of the framers of the legislation and the General Assembly itself in enacting it, for Section 7648, G. C., is the section which defines an elementary school and names branches which are to be taught in such type of school. Thus Section 7648, G. C., reads:

"An elementary school is one in which instruction and training are given in spelling, reading, writing, arithmetic, English language, English grammar and composition, geography, history of the United States, including civil government, physiology and hygiene. Nothing herein shall abridge the power of boards of education to cause instruction and training to be given in vocal music, drawing, elementary algebra, the elements of agriculture and other branches which they deem advisable for the best interests of the schools under their charge."

Apparently what was actually meant by the framers of the legislation and the General Assembly itself in enacting House Bill 111 was that the reference should be to Section 7649, G. C., and not 7648, G. C., for it is 7649, G. C., which defines a high school and then names the subjects which are to be taught in a high school.

Thus Section 7649, G. C. (the section which speaks of high school branches) reads as follows:

"A high school is one of higher grade than an elementary school, in which instruction and training are given in approved courses in the history of the United States and other countries; composition, rhetoric, English and American literature; algebra and geometry; natural science, political or mental science, ancient or modern foreign languages, or both, commercial and industrial branches, or such of the branches named as the length of its curriculum makes possible. Also such other branches of higher grade than those to be taught in the elementary schools, with such advanced studies and advanced reviews of the common branches as the board of education directs."

It is at once apparent that if Section 7648, G. C., (bearing upon elementary branches) is to be read in conjunction with Section 7764-1, G. C., by the reference appearing in the latter section, then Section 7764-1 is meaningless and does not accomplish what was intended by the General Assembly, that is, "work in high school branches," which branches are set forth in Section 7649, G. C.

To illustrate further, the legislative intent, it is well to examine the original bill (H. B. 111) as first printed by the General Assembly. Clearly, what was in mind was "advanced work" beyond the ordinary grade school, for, as first printed in H. B. 111, Section 7764-1, G. C., read as follows:

"Sec. 7764-1. A board of education shall provide advanced work, as mentioned in Section 7748, General Code, at some school within four miles of the residence of each such child for those children of compulsory school age who have finished the ordinary grade school curriculum except those who live within four miles of a high school and those for whom transportation to a high school has been provided."

Here we have "advanced work as mentioned in Section 7748," not "7648" or "7649," the two sections of the General Code speakiug of branches or subjects to be taught. Reference to Section 7748 (which is too long to quote here) shows it to be a section upon tuition and transportation and not upon subjects or branches at all. The General Assembly accepted the provisions of Section 7764-1, G. C., as first introduced and printed in H. B. 111, with but two exceptions or corrections. These were to change "advanced work" to "work in high school branches" as the first change and then as the second change an attempt to correct the code number

of the section cited in 7764-1, G. C., to make it workable and conform to the meaning intended in 7764-1, G. C., especially after "work in high school branches" was inserted instead of "advanced work" to make it more definite, in that work in "elementary branches (7648), though "advanced work," was not meant. Thus the journal of the house of representatives on March 11, 1921, shows that the committee on common schools reported the following amendment to H. B. 111, to-wit:

"In line 164 omit 'A' and change 'board' to 'boards'; omit the word 'advanced' and between the word 'work' and the comma, insert 'in high school branches'.

In line 165 change '7748' to '7648'."

This refers to 7764-1, G. C., (a new supplemental section), the lines of which in H. B. 11 were lines 164 to 169, inclusive. These amendments were adopted by the house of representatives and incorporated into H. B. 111 (Sec, 7764-1, G. C., as it went to the senate; without any other change in 7764-1, G. C., both houses ultimately passed H. B. 111 and the section became law as it now reads. The first amendment (of a descriptive nature) containing definite words changing "advanced work" to "work in high school branches" is clear and definite as to the intent of the lawmaking body that such work should be in "high school branches" and not merely "advanced" work, this latter being stricken out. The second amendment attempting to make a section number correct, in changing "7748" to "7648" and not to "7649," is subsidiary to the first descriptive language. The first amendment was clear in its meaning as soon as it was heard read, while the second, referring to a code section number to be corrected, would require an examination of the General Code in most instances to verify whether such proposed change in number was absolutely correct and fitted into the language of definite meaning first adopted. The legislative intent appears in the first change in 7764-1, G. C., in definite language, and the use of "7648" instead of "7649" in the second amendment, is a legislative error and carries no intent. Unless cognizance is taken of the first change described, and the same given its proper weight, the section (entirely new law) fails to accomplish its intended purpose, and is unworkable. The "work" mentioned in "7648," G. C., was already being carried on by every board of education in the state, and no further law was needed or desired on instruction in elementary branches. Again, Section 7764-1, G. C., refers to those children "who have finished the ordinary grade school curriculum" and these are the children who have