Smith v. Binford , 44 Idaho 244 ( 1927 )

Plaintiff brought this action in mandamus to compel admission of his two children to the schools of the defendant district without payment by him of tuition demanded by the district. The appeal is from a judgment for defendants.

Appellant cites as error the exclusion of certain evidence, the alleged failure to consider certain other evidence, and the insufficiency of the evidence to support the findings. Appellant succinctly states the issue thus: "The one question at issue in this case is appellant's place of residence."

No point is made of the regularity of or authority for the action of the board in fixing and requiring tuition from nonresident pupils, the only contention being that the plaintiff and his children were bona fide residents of the district, and the children thus entitled to attend the schools without payment of tuition.

The provisions of C. S., secs. 828, 998, 999 (as amended, Sess. Laws 1921, chap. 224, p. 513), 1000 and 1001, with relation to tuition, and Sess. Laws 1921, chap. 215, sec. 37, p. 443, providing for a school census, with C. S., sec. 908, and other sections providing for apportionment of school funds between various school districts, contemplate that tuition shall be paid for a nonresident pupil, thus negativing any inference that mere change of the physical presence of a pupil from living in one district to living in another, without lawful change of residence, can avoid those provisions for payment of tuition. Various of the sections cited make provision for a transfer of school funds under certain circumstances from the district wherein the pupil resides to the district wherein he attends school, with provision for determining the necessity of a pupil attending school outside of "his own district."

C. S., sec. 828, makes provision that a pupil "living in one district" may attend school in another. C. S., sec. 892, prior to 1921, provided that the clerk, in enumerating the children of school age in his district, should "not enumerate any exceptbona fide residents thereof," but by Sess. Laws 1921, chap. 215, sec. 37, p. 443, he is not to "enumerate any except the children of bona fide residents thereof."

The legal residence of a child, in the absence of special circumstances or exceptions to the contrary not obtaining here, follows that of the father, and the minor cannot establish a residence or domicile. (Village of Ilo v. Ramey, 18 Idaho 642,112 P. 126; Sudler v. Sudler, 121 Md. 46, Ann. Cas. 1913E, 1191, 88 A. 26, 49 L.R.A., N.S., 860; Lamar v. Micou,112 U.S. 452, 5 Sup. Ct. 221, 28 L. ed. 751. Thus, it must be found that the intention of the enactments upon the subject makes the question of right of attendance and payment of tuition depend upon the legal residence of the parent.

Appellant complains that the court excluded evidence of certain declarations made by him of his intention to change his residence and of having made such change, and disregarded other evidence of declarations and acts admitted in evidence. Only one such declaration was made before a controversy arose over the payment of tuition. Proof of several declarations and acts after the controversy arose was offered and rejected. Others were admitted.

After some evidence was rejected it was stipulated that if the court in later argument should conclude that such evidence was material, the court might consider the rejected offers as evidence. Thereafter, other similar evidence was offered and objected to upon similar grounds, the court each time admitting it "under the stipulation." The court made findings involving both evidence so rejected and admitted, and it is apparent from the record that the court considered all the evidence offered as in the record.

Considering that most of the declarations and acts, evidence of which was sought to be given weight to support a change of residence, were subsequent to the beginning of the controversy, they were, if admissible at all, entitled to little if any weight as self-serving acts and declarations.

There was no pleading or evidence sufficient to establish estoppel.

The evidence is ample to sustain the finding of the trial court that the plaintiff "is not and has never been an actual or bona fide citizen or resident . . . . within the territory embraced in said Independent School District No. 28," and that the plaintiff "has not at any time abandoned his residence and domicile which he had maintained on his said ranch, and did not move to the city of Caldwell, Idaho, for the purpose of establishing a permanent residence or domicile in said city." (Gardner v. Board of Education, 5 Dakota 259, 38 N.W. 433; Statev. School District, 55 Neb. 317, 75 N.W. 855; State v. Thayer,74 Wis. 48, 41 N.W. 1014; Commonwealth v. School Directors, 164 Pa. 603,30 A. 507, 26 L.R.A. 581.)

The judgment is affirmed. Costs to respondents.

Wm. E. Lee, C.J., and T. Bailey Lee, J., concur.

Givens, J., concurs in the conclusion reached.