State ex rel. Flaugher v. Rogers

• Decision Date: 03 March 1948
• Docket Number: 28390.
• Parties: STATE ex rel. FLAUGHER v. ROGERS et al.
• Court: Indiana Supreme Court

77 N.E.2d 594

226 Ind. 32

STATE ex rel. FLAUGHER v. ROGERS et al.

No. 28390.

Supreme Court of Indiana

March 3, 1948

Appeal from Superior Court No. 1, St. Joseph County J. Fred Bingham, judge.

Delph L. McKesson and Marshall F. Kizer, both of Plymouth, for appellant.

Roy Sheneman, of Walkerton, for appellees.

O'MALLEY Judge.

This is an attempt to mandate school authorities to permit the children of the appellant to attend the Walkerton-Lincoln Township Consolidated School without the payment of tuition.

The appellant had operated a business in Walkerton for 18 years had received his mail at that place; and had during the last year operated a restaurant in that city. It also appears that for a great number of years the appellant owned a farm, part of which was located in Polk Township, Marshall County Indiana, and part of which was located in Lincoln Township, St. Joseph County, Indiana; that the appellant had three children between 11 and 16 years of age who attended the Walkerton-Lincoln Township Consolidated School on transfer from Polk Township, Marshall County, Indiana, and tuition for whom was paid by that township until 1943; that there was a change in trustees in 1943 and thereafter requested transfers were refused; and that the appellant then paid the tuition and continued to send his children to the Walkerton school. A few days before March 1, 1946, the appellant was notified that tuition had not been paid for the current term and that unless payment was made by March 1, 1946, the children would be refused permission to continue in the school. Thereupon, requests were again made to the trustee of Polk Township for transfers and the payment of tuition, but the trustee refused both requests. On March 5, 1946, the children were denied admission to classes in the Walkerton school. During the 15 years prior to 1946 the family lived in Polk Township on the farm, but during the year 1945 to 1946, ate their meals in Walkerton at the appellant's restaurant. On March 9, 1946, the appellant rented a room in Walkerton and he and his wife signed a declaration that they henceforth considered themselves legal residents of that town, and they then registered for voting purposes and did vote in the May primary of 1946.

The three children presented themselves for attendance at the Walkerton school on different occasions in March of that year but were on each occasion refused admittance to the school. After a formal demand for admittance of the children, the appellant, as relator, filed this action for mandate to compel the admission of his children to the Walkerton school without the payment of tuition. The action was based on the theory that he had become domiciled in Walkerton and that his domicil was the domicil of his children, although he continued to operate the farm and his children continued to live at the farm home.

The court found the facts specially and then filed conclusions of law which denied any relief to the appellant.

It may be stated that a person may reside one place but have his domicil in another. It may also be said that a domicil is a fixed residence to which one intends to return if he goes somewhere else for residence for a particular purpose or for a limited time. A person has but one domicil, and that continues until a domicil is created at another place. There cannot be two domicils for one person. To change or effect a change in domicil there must be an actual moving with the intent to go to the given place and there to remain. It must be an intention coupled with acts evidencing that intention to make the new domicil a home in fact. 28 C.J.S., Domicile, § 11(c), p. 17; State ex rel. v. Scott, 1908, 171 Ind. 349, 358, 86 N.E. 409, 412; Restatement of the Law of Conflicts, § 9, p. 17.

The case of Wheeler and Others v. Burrow, 1862, 18 Ind. 14, involved the domicil of a minor whose parents resided in Tennessee and who came to Indiana with the hope of securing an education in our public schools. While it was said that the domicil of the child was that of its parents it did not declare that to be absolute in all cases.

In Culbertson v. The Board of Commissioners of Floyd County, 1876, 52 Ind. 361, 368, it was held that "Actual residence, that is, personal presence in a place, is one circumstance to determine the domicil, or the fact of being an inhabitant; but it is far...