Halaby v. Board of Directors of University of Cincinnati, 33918

• Decision Date: 08 December 1954
• Docket Number: No. 33918,33918
• Citation: 162 Ohio St. 290,123 N.E.2d 3,55 O.O. 171
• Parties: , 55 O.O. 171 HALABY, a Minor, Appellant, v. BOARD OF DIRECTORS OF UNIVERSITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 290

162 Ohio St. 290

123 N.E.2d 3, 55 O.O. 171

HALABY, a Minor, Appellant, v. BOARD OF DIRECTORS OF UNIVERSITY OF CINCINNATI, Appellee.

No. 33918.

Supreme Court of Ohio.

Dec. 8, 1954.

Syllabus by the Court.

1. The term, 'citizen,' used in legislation wherein United States citizenship has no reasonable relationship to the subject matter or purpose is often applied as meaning 'resident.'

2. The phrase, 'citizens of such municipalities,' as used in Section 4003-20, General Code (Section 3349.22, Revised Code), providing that 'citizens of such municipalities [in which municipal universities are located] shall not be charged for instruction in the academic department, except in professional courses therein,' is intended to mean and apply to bona fide residents legally domiciled in the city wherein such university is located, regardless of national or state citizenship.

This is an action for a declaratory judgment, originally instituted in the Common Pleas Court of Hamilton County by the appellant herein against the Board of Directors of the University of Cincinnati, appellee herein, to declare his rights under the provisions of Section 4003-20, General Code, Section 3349.22, Revised Code, granting free tuition in the academic department of the university to a citizen of the city of Cincinnati.

An agreed statement of facts shows that the plaintiff, a minor, is enrolled as a student in the Liberal Arts College of the University of Cincinnati; that he and his father are immigrants and residents of the city of Cincinnati; that his parents have formally declared their intention of becoming citizens of the United States; that his mother is the owner of a house and she and his father are conducting a business within the corporate limits of the city; that his parents own several parcels of real property, including their former residence, in the city, other than that being held by the government of Israel and which they have been unable to claim; and that neither plaintiff nor his parents are qualified electors and they have not voted in Cincinnati or elsewhere in the United States.

A demurrer was filed to the plaintiff's petition, and, by agreement between counsel for the parties and with the consent of the court, the substantive law of the case was argued on the demurrer. The court overruled the demurrer, Ohio Com.Pl., 116 N.E.2d 56, whereupon an agreed statement of facts, an answer and a jury waiver were filed, and judgment was rendered for the plaintiff.

Upon appeal to the Court of Appeals for Hamilton County, that court, with the judges of the Sixth Appellate District sitting by designation, reversed the judgment of the Common Pleas Court and rendered final judgment for the defendant.

The cause is now in this court on appeal by reason of the allowance of a motion to certify the record, an appeal as of right having been dismissed.

Edward K. Halaby, Cincinnati, for appellant.

Henry M. Bruestle, City Solicitor, Maurice W. Jacobs and Edgar W. Holtz, Cincinnati, for appellee.

HART, Judge.

Section 4003-20, General Code, Section 3349.22, Revised Code, provides:

'Citizens of such municipalities [in which municipal universities are located] shall not be charged for instruction in the academic department, except in professional courses therein. Such board of directors may charge fees for any purpose to students in other departments and to students in professional courses in the academic department, and may charge fees for purposes other than instruction to students in the academic department. From time to time they may make such university, college or institution free in any or all of its departments to citizens of the county in which it is located.

'The board of directors may receive other students on such terms as to tuition or otherwise as they see fit.'

The plaintiff contends that the phrase, 'citizens of such municipalities', as used in the statute, is intended to mean and apply to bona fide residents legally domiciled in the city wherein the university is located, and that such residents so domiciled are entitled to free tuition in the academic departments of any university of such city on the same basis as other persons so domiciled, regardless of United States citizenship. However, the defendant contends that United States citizenship is a prerequisite to municipal citizenship and has, accordingly, required the payment of tuition fees by the plaintiff as necessary to his admission to the university.

The sole question for determination by this court is the meaning of the phrase, 'citizens of such municipalities', as used in Section 4003-20, General Code.

Both parties, as well as the Common Pleas Court and the Court of Appeals, recognized that the term, 'citizen,' as applied to municipalities, townships, and counties, is technically a misnomer. Citizenship applies ordinarily to one's relationship to a national government and a state of domicile within such government.

Section 1 of the Fourteenth Amendment to the Constitution of the United States defines citizenship as follows:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'

It is apparent, however, from a study of legislation and court decisions, that, except where a citizen of the United States is referred to, a variety of meanings is loosely given to the term, 'citizen,' and that such use creates legal ambiguity. It is to be observed that the term, 'citizen,' is often used in legislation where 'domicile' is meant and where United States citizenship has no reasonable relationship to the subject matter and purpose of the legislation in question.

For instance, the court in the case of Smith v. Birmingham Waterworks Co., 104 Ala. 315, 16 So. 123, 125, construed the term, 'citizen,' as used in an ordinance fixing rates to be charged to the 'citizens of Birmingham', as applicable to all inhabitants of the city.

In the case of Vachikinas v. Vachikinas, 91 W.Va. 181, 112 S.E. 316, the court held that 'one who has resided and been bona fide domiciled in this state for the requisite period, though of foreign birth and married in a foreign country, and who has never made application for or become a naturalized citizen of the United States, may maintain a suit for divorce in the circuit court of the county of his residence and domicile, notwithstanding the provision of section 7 of chapter 64 of the Code, that in no case shall a suit for divorce be maintained unless the plaintiff is an actual bona fide citizen of this state. In such case 'residence' and 'domicile' are sufficient to give the status of citizenship required by the statute.' See Devanney v. Hanson, 60 W.Va. 3, 53 S.E. 603.

In the case of McKenzie v. Murphy, 24 Ark. 155, the court held that an alien domiciled in that state and being a householder or head of the family is entitled to the exemption of his homestead from sale on execution, a privilege granted by statute to citizens of the state; that, unless the terms of the statute are entirely free from ambiguity, regard must be had to its known object, to the mischief intended to be provided against and to its general spirit and intent; and that the word, citizen, is often used as meaning only an inhabitant or a resident of a town, state or county, without any implication of political or civil privileges.

In the case of Field v. Adreon, 7 Md. 209, the court, in construing an attachment statute as applied to 'absconding citizens,' held that an unnaturalized person, residing and doing business in the state of Maryland, is, for commercial objects and in contemplation of the attachment laws, a citizen of the state and...