dissenting. I dissent from the holding in this case that a transfer of students from one school district to another is impermissible without the consent of the sending school district. The applicable statutes do not make such requirement, nor does Bell v. Howard County Training School, 236 Ark. 742, 368 S.W. 2d 266 (1963), the only case cited or relied upon by the majority opinion.
Two methods for the transfer of students are provided by the statutes. Ark. Stat. Ann. § 80-1528 (Repl. 1980), quoted in the majority opinion, applies only to adjoining districts (in the same or different counties) and allows the transfer by “mutual agreement” of both local Boards of Education. The other method is set out in Ark. Stat. Ann. § 80-1517 (Repl. 1980), which is also quoted in the majority opinion. It merely vests the county board of education with the power upon petition to transfer children to another school district in the same or an adjoining county. The only consent required is contained in the ensuing statute which prohibits the transfer “until and unless the consent of the Board of Directors of the district to which such child or children are sought to be transferred had been secured.” The transfers in this case were made pursuant to § 80-1517 and § 80-1518 which clearly do not require consent of the school district from which the students were transferred.
The majority opinion, although quoting these statutes, does not really indicate that the language therein requires the consent of the “sending” school district, but instead, relies on the Bell case, supra, to reach that conclusion. In that case the students transferred from the Howard County Training School District No. 38 administered by the Howard County Board of Education to a school district in Sevier County. The opinion did not say the “sending” district must consent to the transfer, but rather that the “sender” must consent. The “sender” in the Bell case was not the school district but the Howard County Board of Education from whom no consent was obtained. In the cases now on appeal, the transfer was between two school districts within the same county and the “sender” was the Independence County School Board which did specifically authorize the transfers. In Bell, the court pointed out that a transfer had not been properly made under either of the statutory methods:
The transfer must be made by the County Board of Education in which the ‘sending’ district is located (§ 80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education (‘sending’ and ‘receiving’) (Section 80-1528). . . . neither the Howard County Board of Education nor the Howard County Training School District No. 38 school board approved the transfer of these students. Thus, the pupils were not transferred in accordance with the provisions of either § 80-1517 or § 80-1528. It follows that the transfer was not properly made.
It is obvious that the Bell case did not read the mutual consent requirement of § 80-1528 into § 80-1517. To do so would nullify § 80-1517, a position completely incompatible with the specific finding of Bell that both methods of transfer do exist. Neither a long-standing policy of the State Department of Education nor an opinion of the Attorney General is justification for this court to add a provision to an existing statute. Such is the responsibility of the General Assembly.
Finding no merit in any of appellant’s points on appeal, I would affirm the judgment of the trial court.
Fogleman, C.J., joins in this dissent.