(dissenting).
My difference with the majority opinion-lies solely in the construction that I believe should be given to Section 2, Chap. 136,, Laws of N.D.1955. This section was an amendment of Sec. 1, Chap. 133, Laws of N.D.1953, which in turn was an amendment *754of Sec. 3, Chap. 143, Laws of N.D.1949. The latter section reads as follows:
“The board of education of any special school district shall admit to the schools of the district pupils other than high school pupils from other districts when it can be done without injuring or overcrowding the schools, and shall make regulations for the admission of such pupils. When a pupil is admitted from another district, credit on his tuition shall be given by the district admitting him to the extent of school taxes paid in the admitting district by the parent or guardian of the admitted pupil. If the attendance of a pupil from another district is necessitated by shorter distance or other reasons of convenience and is approved by the county superintendent of schools, the balance of the tuition, after credit for taxes paid, shall be paid by the district from which the pupil is admitted, but the whole amount of the tuition shall not exceed the actual costs.”
The change made in this statute by the 1953 amendment has no bearing on this case and there is therefore no need to set it forth herein. The 1955 amendment (Sec. 2, Chap. 136) is as follows:
“Section 15-29082 of the 1953 Supplement to the North Dakota Revised Code of 1943 is hereby amended and reenacted to read as follows:
“15-29082 Admission Of Pupils From Other Districts: Tuition.) The board of education of any special school district shall admit to the schools of the district pupils other than high school pupils from other districts when it can be done without injuring or overcrowding the schools, and shall make regulations for the admission of such pupils. When a pupil is admitted from another district, credit on his tuition shall be given by the district admitting him to the extent of school taxes paid in the admitting district by the parent or guardian of the admitted pupil. If the attendance of a pupil from another district is necessitated by shorter distance or other reasons of convenience, approval or disapproval shall be given by the county superintendent of schools within fifteen days after consulting the boards of education of both districts concerned, and the balance of the tuition, after credit for taxes paid, shall be paid by the district from which the pupil is admitted, but the whole amount of tuition shall not exceed the average cost of elementary education per child in the county. Such costs shall include expenditures from the general and sinking and interest funds.”
The change in the statute which I consider significant and material to the issues in this case occurs in its last sentence. This sentence as contained in the original statute read:
“If the attendance of a pupil from another district is necessitated by shorter distance or other reasons of convenience and is approved by the county superintendent of schools, the balance of the tuition, after credit of taxes paid, shall be paid by the district from which the pupil is admitted * *.”
This language is precise. It clearly means that the approval of the superintendent of schools is essential only for the purpose of fixing liability for tuition and that the requirement of approval is not a limitation of the mandatory duty of special school districts to receive nonresident pupils as set forth in the first sentence of the statute. In 1955, however, this sentence was amended to read as follows:
“If the attendance of a pupil from another district is necessitated by shorter distance or other reasons of convenience, approval or disapproval shall be given by the county superintendent of schools within fifteen days after consulting the boards of educa*755tion of both districts concerned, and the balance of the tuition, after credit for taxes paid, shall be paid by the district from which the pupil is admitted * *
It will be noted that two changes were made in the statute. The language “and is approved” was changed to “approval or disapproval shall be given” and the requirement of consultation with the boards of education was added.
According to the construction of the majority this amendment only added the requirement that the county superintendent of schools should consult with the school boards concerned before giving his approval to the entry of a pupil of one district into the school of another and that his approval remains as before an essential only to the fixing of liability for tuition. In other words it is the view of the court that the change in the language “and is approved by” to “approval or disapproval shall be given by” and the separation of the provision relating to tuition from that stating the necessity of approval by a comma and the co-ordinate conjunction “and” were without any purpose or effect. With this view I cannot agree. As I read the original statute it provided that if the application to attend school in another district was on the basis of convenience and was approved by the county superintendent, the home district should pay the tuition. As I read the amended statute it provides that if the application to attend school in another district is made on the basis of convenience it must be approved or disapproved by the county superintendent, and the tuition will be paid by the home district. In other words in the original statute the county superintendent’s approval was a condition essential to fix liability for payment of tuition and in the amended statute it became a condition essential to the absolute right to attend school in a school district in which the pupil was not a resident.
The 1957 amendment to this statute should be given the same construction and for this reason, I believe, the judgment of the district court should be reversed.