B-3589, JULY 11, 1939, 19 COMP. GEN. 36

B-3589, JULY 11, 1939, 19 COMP. GEN. 36

DISTRICT OF COLUMBIA - TUITION FOR NONRESIDENTS ATTENDING PUBLIC SCHOOLS THE DUTIES OF CHARGING AND COLLECTING TUITION FROM NONRESIDENT PUPILS FOR ATTENDANCE IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA ARE IMPOSED BY LAW ON OFFICIALS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA AND THEIR DETERMINATION AS TO WHETHER A CHARGE SHALL BE MADE IN A PARTICULAR CASE, OR AS TO THE AMOUNT THAT SHALL BE CHARGED, ARE MATTERS NOT SUBJECT TO REVIEW BY THE GENERAL ACCOUNTING OFFICE. THE WORD "PUPILS" AS USED IN THE NONRESIDENT DISTRICT OF COLUMBIA FREE TUTELAGE PUBLIC SCHOOL ACT OF JUNE 26, 1912, 37 STAT. 161, MUST BE ASSUMED TO HAVE BEEN INTENDED BY THE CONGRESS TO EMBRACE ONLY MINOR CHILDREN AND IT WOULD SEEM THE PRIMARY ADMINISTRATIVE DUTY TO REQUIRE PAYMENT OF TUITION FOR ATTENDANCE AT THE WILSON TEACHERS' COLLEGE OF ADULT NONRESIDENTS WHOSE BASIS OF CLAIM FOR EXEMPTION IS THAT THEIR PARENTS EITHER PAY TAXES IN THE DISTRICT OF COLUMBIA, OR WERE CONTINUALLY EMPLOYED THERE, LEAVING TO THOSE AGAINST WHOM THE CHARGE IS MADE THE RIGHT TO QUESTION IT THROUGH APPROPRIATE LEGAL PROCEEDINGS.

COMPTROLLER GENERAL BROWN TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JULY 11, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 29, 1939, AS FOLLOWS:

THE COMMISSIONERS DESIRE TO SUBMIT FOR YOUR CONSIDERATION AND ADVICE AN APPLICATION MADE BY ONE CHARLES M. PROCTOR, JR., ADULT, FOR A REFUND OF $107.72, ONE-HALF YEAR'S TUITION PAID BY HIM PRIOR TO DECISION OF THE CORPORATION COUNSEL AS TO WHETHER HE MAY BE TAUGHT WITHOUT CHARGE IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA. MR. PROCTOR IS ATTENDING THE WILSON TEACHERS' COLLEGE, HAVING BEEN ENTERED AS A NONRESIDENT, AND REQUIRED TO PAY TUITION ON THE THEORY THAT HIS FATHER, A TAXPAYER IN THE DISTRICT OF COLUMBIA RESIDING AT BETHESDA, MARYLAND, DID NOT EXEMPT HIM. THE CORPORATION COUNSEL'S OPINION OF APRIL 5, 1939, APPROVED BY THE COMMISSIONERS UNDER DATE OF APRIL 7, 1939, IS ENCLOSED.

IN FOUR OTHER CASES INVOLVING NONRESIDENT STUDENTS ATTENDING WILSON TEACHERS' COLLEGE, ALL OF WHOM WERE OVER 20 YEARS OF AGE, CLAIM OF EXEMPTION IS MADE FROM THE PAYMENT OF TUITION ON THE THEORY THAT THEIR PARENTS WERE CONTINUALLY EMPLOYED IN THE DISTRICT OF COLUMBIA. THE CORPORATION COUNSEL, YOU WILL NOTE, CONCLUDED WITH THE OPINION THAT THE AGE OF A PUPIL HAS NO BEARING ON WHETHER OR NOT HE IS ENTITLED TO BE TAUGHT FREE IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, AND IF SUCH PUPIL'S PARENTS ARE EMPLOYED OFFICIALLY OR OTHERWISE IN THE DISTRICT OF COLUMBIA, THE PUPILS ARE ENTITLED TO BE TAUGHT FREE OF CHARGE. THIS OPINION WAS LIKEWISE APPROVED BY THE COMMISSIONERS APRIL 7, 1939.

THE ACT OF JUNE 26, 1912, 37 STAT. 161, PROVIDES IN PART:

" PUPILS SHALL NOT BE ADMITTED TO OR TAUGHT FREE OF CHARGE IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHO DO NOT RESIDE IN SAID DISTRICT, OR WHO DURING SUCH TUTELAGE DO NOT OWN PROPERTY IN AND PAY TAXES LEVIED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN EXCESS OF THE TUITION CHARGED HEREUNDER TO OTHER NONRESIDENT PUPILS, OR WHOSE PARENTS DO NOT RESIDE OR ARE NOT ENGAGED IN PUBLIC DUTIES THEREIN, OR DURING SUCH TUTELAGE PAY TAXES LEVIED HEREUNDER TO OTHER NONRESIDENT PUPILS: * * *"

IT IS A WELL-ESTABLISHED PRINCIPLE OF LAW THAT ON ARRIVING AT FULL AGE, MEN ARE SUI JURIS FOR ALL PRIVATE PURPOSES, AND ALSO MAY VOTE AND HOLD OFFICE, EXCEPT IN CASES ESPECIALLY OTHERWISE PROVIDED FOR, AND BEING OF FULL AGE AND MENTALITY, ANY CONTRACT AS THEY WISH, INDEPENDENT OF PATERNAL RELATIONSHIP. THE SERVICES OF AN INFANT ARE HELD IN LAW TO BELONG TO HIS PARENTS, AND IT IS THE GENERAL RULE THAT THE INFANT CANNOT RECOVER DAMAGES FOR THEIR LOSS BY REASON OF PERSONAL INJURIES DURING MINORITY. THE WEIGHT OF AUTHORITIES ARE TO THE EFFECT THAT A CHILD BECOMES EMANCIPATED FROM ITS FATHER UPON BECOMING OF AGE-- AT LEAST SO FAR AS EARNINGS ARE CONCERNED. (4 APP. D.C. 213: 19 APP. D.C. 79.)

MR. PROCTOR, IN CONTRACTING FOR THESE SERVICES, BEING OF FULL AGE, HAD A PERFECT RIGHT TO ENTER INTO A BINDING CONTRACT INDEPENDENT OF THE WISHES OF HIS FATHER, AND WAS NOT DEPENDENT UPON WHETHER HIS FATHER DID OR DID NOT PAY TAXES IN THE DISTRICT OF COLUMBIA. YOU WILL NOTE THAT THE ACT OF JUNE 26, 1912, SUPRA, PROVIDES FOR THE EDUCATION OF PUPILS DURING THE AGE OF TUTELAGE, AND THIS, NO DOUBT, HAS REFERENCE TO THE EDUCATION OF MINORS. THE COMPULSORY EDUCATION LAW (SECTION 91, TITLE 7, D.C. CODE) PROVIDES FOR THE EDUCATION OF CHILDREN BETWEEN THE AGES OF 7 AND 16 YEARS, AND DOES NOT INCLUDE INDIVIDUALS WHO HAVE BECOME OF AGE. (SEE IN THIS CONNECTION B-569, JANUARY 27, 1939, 68 APPEALS, D.C. 7.)

IN YOUR DECISION TO THE COMMISSIONERS REFERRED TO ABOVE YOU HELD THAT THESE WERE MATTERS FOR CONSIDERATION BY THE ADMINISTRATIVE AUTHORITIES, BUT THROUGHOUT YOUR DECISION YOU REFERRED TO MINORS, AND "FOR CERTAIN PURPOSES THE MINOR CHILD'S RESIDENCE MAY BE DIFFERENT FROM THAT OF ITS PARENTS OR LEGAL GUARDIAN.'

THE AUDITOR IS OF THE OPINION THAT THE LAWS RELATING TO EDUCATION IN THE DISTRICT OF COLUMBIA MUST BE CONSIDERED IN THE LIGHT AND THE PURPOSE OF THE ENACTMENT NAMELY TO PROVIDE FOR THE EDUCATION OF CHILDREN OF SCHOOL AGE, AND THAT THE WORDS "PUPILS," "TUTELAGE," "PARENTS" MUST BE CONSIDERED IN THE SAME LIGHT, WHEN APPLIED TO NONRESIDENT PUPILS.

THE OPINION OF THE CORPORATION COUNSEL IF LITERALLY CONSTRUED WOULD ADMIT THE VIEW THAT AN INDIVIDUAL, NOTWITHSTANDING HIS AGE (21 TO 60) OR PLACE OF ABODE (SEPARATE AND APART FROM HIS PARENTS), PROVIDED HIS FATHER IS EMPLOYED OR PAYS TAXES IN THE DISTRICT, COULD ATTEND THE DISTRICT PUBLIC SCHOOLS WITHOUT THE PAYMENT OF TUITION. IN FACT, AFTER MR. PROCTOR PAID THE TUITION FOR THE FIRST HALF OF THE YEAR HE MOVED INTO THE DISTRICT.

THE COMMISSIONERS WOULD APPRECIATE ADVICE FROM YOU AS TO WHETHER THE REFUND REQUESTED BY MR. PROCTOR MAY BE MADE TO HIM WITHOUT OBJECTION BY YOUR OFFICE.

A REFUND OF TUITION PAID IS NOT JUSTIFIED, OF COURSE, UNLESS ERRONEOUSLY CHARGED AND A DECISION OF THE QUESTION SUBMITTED NECESSARILY INVOLVES A DETERMINATION AS TO THE CORRECTNESS OF THE CHARGE ON ACCOUNT OF WHICH THE PAYMENT WAS MADE. THE DUTIES OF CHARGING AND COLLECTING TUITION FROM NONRESIDENT PUPILS FOR ATTENDANCE IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA ARE IMPOSED BY LAW ON OFFICIALS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA AND THEIR DETERMINATION AS TO WHETHER A CHARGE SHALL BE MADE IN A PARTICULAR CASE, OR AS TO THE AMOUNT THAT SHALL BE CHARGED, ARE MATTERS HERETOFORE NOT REGARDED AS SUBJECT TO REVIEW BY THIS OFFICE.

ACCORDINGLY, THIS OFFICE WILL NOT ATTEMPT AN AUTHORITATIVE DECISION AS TO THE LEGALITY OF THE CHARGE HERE IN QUESTION OR AS TO WHETHER THE PROPOSED REFUND IS AUTHORIZED. HOWEVER, SINCE YOUR LETTER INDICATES THAT THE CORPORATION COUNSEL AND AUDITOR OF THE DISTRICT OF COLUMBIA APPARENTLY ENTERTAIN OPPOSITE VIEWS, IT MAY NOT BE IMPROPER TO INVITE YOUR ATTENTION TO CERTAIN PHASES OF THE MATTER WHICH MAY NOT HAVE BEEN GIVEN DUE CONSIDERATION. 11 COMP. GEN. 449.

OBVIOUSLY, THE QUESTION PRIMARILY FOR CONSIDERATION IN A CASE SUCH AS HERE INVOLVED IS IN WHAT SENSE THE WORD "PUPILS" WAS USED IN THE ACT OF CONGRESS OF JUNE 26, 1912, 37 STAT. 139, 161, QUOTED IN YOUR LETTER; THAT IS, WHETHER THE CONGRESS INTENDED THE WORD TO EMBRACE ALL INDIVIDUALS WHOSE PARENTS PAID TAXES OR RESIDED IN HE DISTRICT OF COLUMBIA, REGARDLESS OF AGE, OR TO INCLUDE ONLY SUCH INDIVIDUALS AS WERE OF THE AGE OF THOSE ORDINARILY ATTENDING THE PUBLIC SCHOOL OF THE DISTRICT OF COLUMBIA, TO WIT, CHILDREN.

IN THIS CONNECTION IT MAY BE STATED THAT NEITHER THE OPINION OF THIS OFFICE, B-569, JANUARY 27, 1939, NOR THE DECISION OF THE UNITED STATES V. BALLOU, 68 APP. D.C. 7, APPEARS TO HAVE ANY PARTICULAR BEARING IN THIS CASE.

IT IS PERHAPS OF SOME SIGNIFICANCE THAT IN THE HEARINGS WHICH WERE HELD UPON THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR 1913 OF WHICH THE PROVISION QUOTED IN YOUR LETTER, SUPRA IS A PART, DR. WILLIAM N. DAVIDSON, THEN SUPERINTENDENT OF SCHOOLS OF THE DISTRICT OF COLUMBIA, IN HIS TESTIMONY CONCERNING THE MATTER OF A SCHOOL CENSUS, STATED---

WE TAKE CHILDREN INTO OUR KINDERGARTEN SCHOOLS AT THE AGE OF 5, THE PRIMARY SCHOOL AGE BEING RECOGNIZED AS THE AGE OF 6, AND WE RETAIN THE CHILDREN IN THE SCHOOLS UP TO THE AGE OF 21. ( HEARINGS BEFORE SUBCOMMITTEE OF HOUSE COMMITTEE ON APPROPRIATIONS IN CHARGE OF DISTRICT OF COLUMBIA APPROPRIATION BILL FOR 1913, PAGE 290.) AND IN THE PORTION OF THE HEARING WHICH WAS DEVOTED TO A DISCUSSION OF THE LAW WHICH IS NOW UNDER CONSIDERATION BOTH THE VARIOUS MEMBERS OF CONGRESS WHO WERE CONDUCTING THE HEARING AND THE OFFICIAL OF THE DISTRICT OF COLUMBIA WHO THEN TESTIFIED, MADE USE OF THE WORD "CHILDREN" IN REFERRING TO NONRESIDENT PUPILS. ( HEARING, SUPRA, 312.)

THE WORD "PUPIL" IS DEFINED IN FUNK AND WAGNALLS NEW STANDARD DICTIONARY, 1936, AS "A PERSON OF EITHER SEX, OR OF ANY AGE, UNDER THE CARE OF A TEACHER; SCHOLAR; DISCIPLE" BUT THE STATEMENT ALSO APPEARS THEREIN THAT "1IN THE UNITED STATES PUPIL IS QUITE GENERALLY USED TO DENOTE A SCHOLAR IN AN ELEMENTARY OR SECONDARY SCHOOL, AS DISTINGUISHED FROM STUDENT, A SCHOLAR IN A HIGHER INSTITUTION.' IT FURTHER APPEARS THAT THE WORD "PUPIL" IS DERIVED FROM THE LATIN WORDS "PURPOSE" MEANING BOY AND ,PUPA" MEANING GIRL, AND IN THE CASE OF COMMONWEALTH V. CONNECTICUT VALLEY ST. RY. CO., 196 MASS. 309, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS SAID:

THE STATUTE WHICH WE ARE NOW TO INTERPRET PROVIDES ONLY FOR " PUPILS.' THE WORD "PUPILS" BY DERIVATION AND THE DEFINITION OF LEXICOGRAPHERS, IS PROPERLY APPLICABLE TO CHILDREN AND YOUTH. STUDENTS IN COLLEGES AND PROFESSIONAL SCHOOLS ARE NOT CALLED PUPILS.

IT IS AN ELEMENTARY PRINCIPLE OF LAW THAT WHEN A YOUTH ATTAINS HIS MAJORITY, HE IS SUI JURIS, CAN CONTRACT FOR HIMSELF, AND IS FREED FROM PARENTAL CONTROL. LIKEWISE HIS FATHER IS THEN DISCHARGED FROM ANY FURTHER LEGAL OBLIGATION TOWARD HIM EVEN THOUGH THE FATHER RECOGNIZES A MORAL OBLIGATION TO CONTINUE TO ASSIST HIS SON IN OBTAINING AN EDUCATION, AND ACTS ACCORDINGLY.

ALSO, IT IS WELL SETTLED THAT WHEN A YOUTH ATTAINS HIS MAJORITY HE HAS THE RIGHT TO SELECT HIS OWN DOMICILE AND EVEN THOUGH HE ELECTS TO REMAIN BENEATH HIS FATHER'S ROOF THE CHOICE WHICH HE THUS MAKES IS HIS. FURTHERMORE, IT IS DIFFICULT TO PERCEIVE HOW THE LEGAL ASPECT OF THE MATTER OF THE TUITION OF A NONRESIDENT ADULT CAN BE CHANGED BY THE FACT THAT THE FATHER CONTINUES TO SUPPORT SUCH ADULT. BESIDES, IN THE INSTANT CASE IT APPEARS THAT THE CLAIMANT, AND NOT HIS FATHER, PAID THE TUITION FOR WHICH A REFUND IS NOW SOUGHT.

WHILE IT IS TRUE THERE IS NO EXPRESS LIMITATION IN THE STATUTE HERE INVOLVED AS TO THE AGE OF PUPILS, IT MUST BE ASSUMED THE CONGRESS ENACTED THE LAW WITH KNOWLEDGE OF THE FUNDAMENTAL PRINCIPLES THAT A FATHER IS OBLIGATED TO MAINTAIN AND EDUCATE HIS MINOR CHILDREN AND THAT THEIR LEGAL DOMICILE ORDINARILY FOLLOWS HIS. IT WOULD SEEM REASONABLE TO ASSUME, ALSO, THAT THE PURPOSE OF CONGRESS IN ENACTING THIS LEGISLATION WAS TO ENABLE A RESIDENT PARENT OR NONRESIDENT ONE WHO PAYS TAXES IN THE DISTRICT OF COLUMBIA WITHOUT CHARGE AND THAT WHEN AN ADULT ATTENDS A TEACHERS' COLLEGE, OR OTHER PUBLIC SCHOOL IN THE DISTRICT OF COLUMBIA, THE INQUIRY AS TO WHETHER HE SHOULD BE REQUIRED TO PAY TUITION CHARGES IS TO BE ANSWERED BY ASCERTAINING WHETHER HE (THE SAID ADULT) PAYS TAXES OR RESIDES IN THE DISTRICT OF COLUMBIA, RATHER THAN WHETHER HIS FATHER DOES.

THE STATUTE MAKES NO DISTINCTION BETWEEN A TAXPAYING PARENT WHO RESIDES WITHOUT THE DISTRICT OF COLUMBIA AND A PARENT WHO HAS HIS RESIDENCE THEREIN; AND TO SAY THAT A NONRESIDENT ADULT IS ENTITLED TO FREE TUITION BY REASON OF THE FACT THAT HIS NONRESIDENT FATHER PAYS TAXES IN THE DISTRICT WOULD SEEM TO LEAD TO THE SOMEWHAT UNREASONABLE RESULT THAT AN ADULT LIVING IN MARYLAND WOULD BE ENTITLED TO FREE TUITION IN THE DISTRICT OF COLUMBIA MERELY BECAUSE HIS FATHER RESIDES IN THE DISTRICT OF COLUMBIA. THERE CAN BE LITTLE OR NO QUESTION THAT THE CONGRESS DID NOT INTEND THE STATUTE TO BE SO CONSTRUED.

IN VIEW OF THE FOREGOING, IT WOULD SEEM THE PRIMARY ADMINISTRATIVE DUTY TO REQUIRE THE PAYMENT OF TUITION IN CASES SUCH AS HERE INVOLVED, LEAVING TO THOSE AGAINST WHOM THE CHARGE IS MADE THE RIGHT TO QUESTION IT THROUGH APPROPRIATE LEGAL PROCEEDINGS.