
    Union Free High School District No. 1 of Town of Iron River, Respondent, v. Joint School District No. 1 of Town of Maple, Etc., Appellant.
    
      September 6
    
    October 2, 1962.
    
    
      For the appellant there was a brief by Borg, McGill & Moodie of Superior, and oral argument by Douglas S. Mo odie.
    
    
      For the respondent there was a brief by Crawford, Crawford & Cirilli, and oral argument by James C. McKay, all of Superior.
    A brief amicus curiae was filed by John W. Reynolds, attorney general, and Harold H. Persons, assistant attorney general, on behalf of the state superintendent of public instruction.
   Gordon, J.

Upon the demurrer to the complaint, the trial judge declared the law to be as follows: A school district may not admit to its high school those pupils who reside within another school district which operates a high school.

The trial judge determined that sec. 40.91 (1), Stats., means that “a high-school district has no right to admit pupils who come from another high-school district or school district which is maintaining a high school.” We reach a contrary conclusion.

In requiring school districts to admit certain nonresidents, the statute does not thereby prohibit the admission of other nonresidents. In other words, because the statute affirmatively requires the admission of a student from a district which does not have a high school it cannot be said to proscribe the admission of a person who resides in a district where there is a high school.

This conclusion is buttressed by the provisions of sec. 40.654, Stats. This section provides that before the admission of a nonresident pupil there must be a written agreement entered into with the parents providing for their payment of nonresident tuition, except in those cases where the tuition is made a public charge. Sec. 40.91 is an instance where high-school tuition is made a public charge. A correlation of secs. 40.91 and 40.654 requires the conclusion that a school district may, if it chooses, accept a high-school pupil from some other district even though such pupil’s home district operates a high school, provided the necessary parental agreement to pay nonresident tuition is made. We believe that these two sections reflect legislative recognition of the right of a school district to determine if its facilities permit it to admit a high-school student who resides in another district, even though the latter has a high school.

We are satisfied that the plaintiff had a legally protectible interest so as to justify its maintaining this action. State ex rel. La Follette v. Dammann (1936), 220 Wis. 17, 264 N. W. 627. Nevertheless, we conclude that under a reasonable interpretation of the relevant statutes the plaintiff has misconstrued its rights.

By the Court. — Judgment reversed and remanded. Judgment to be entered declaring that the defendant has authority to admit high-school students to its high school even though said students reside in the high-school district of the . plaintiff, which latter district maintains a high school.  