State ex rel. Sch.-Dist. Bd. v. Thayer

• Decision Date: 12 March 1889
• Citation: 74 Wis. 48,41 N.W. 1014
• Parties: STATE EX REL. SCHOOL-DISTRICT BOARD v. THAYER, STATE SUPERINTENDENT.
• Court: Wisconsin Supreme Court

74 Wis. 48

41 N.W. 1014

STATE EX REL. SCHOOL-DISTRICT BOARD

v.THAYER, STATE SUPERINTENDENT.

Supreme Court of Wisconsin.

March 12, 1889.

On certiorari.

Petition for certiorari by the school-district board of school-district No. 1, village of Waukesha, to review a decision by Jesse B. Thayer, state superintendent of schools. The opinion of the superintendent filed on his decision of the case, and referred to in this opinion, is as follows:

“The facts, so far as they are essential to the merits of this case, are not in dispute, and are as follows: M. Vail Smith is a married woman, the wife of W. H. Smith, and the mother of three minor children, the issue of her marriage with the said W. H. Smith, who are wholly dependent upon her for maintenance and support; that the said W. H. Smith, in the year 1883, deserted his family, and since that time has contributed nothing towards the support of his wife, M. Vail Smith, nor of the three minor children hereinbefore mentioned; that the said M. Vail Smith is wholly dependent upon her labor for the support of herself and that of her children; that her occupation is that of a school-teacher; that she has no permanent home, but lives wherever she is able to find employment in her avocation; that for a year past she has been employed as a teacher in the public schools of the city of Milwaukee; that for the year previous she was employed in like manner in the public schools of Seymour, Outagamie county, Wis.; that having no home, but boarding wherever she is employed, she is unable to provide a home for all her children with herself, but is compelled to provide suitable homes for some of them wherever she may be able to do so; that two of her children have, until recently, been provided with a home at the residence of a relative in the town of Waukesha, and that they attended the public schools in the district where they resided; that one year ago her daughter, Leafy Smith, one of these two children, was provided a home in the village of Waukesha, has since resided there, and attended the public school in district No. 1, or the Union school of that village; that in August last it became necessary for her to provide another home for Phillip Smith, the child remaining with her relative, owing to a change in his domestic affairs; that thereupon she procured for him a home with Dr. Mary A. Fox, a resident of the village of Waukesha, where he could earn a part of his livelihood by work in the household of said Dr. Mary A. Fox; that upon presenting himself at the public school in said school-district No. 1, the principal of the school refused to assign the child Phillip Smith a seat, or assign him lessons as a pupil in said school, claiming that in so doing he was acting in accordance with instructions of the district board; that upon appeal to the district board, a meeting of the said board was called and held on the 25th day of September, A. D. 1888, at which the district board reached the decision hereinbefore mentioned; that written notice of its decision was sent to D. J. Hemlock, Esq., the attorney employed by Mrs. Smith to look after her interests in this case. These are the main facts alleged by the appellant, and they are neither denied nor disputed by the respondents.

Answer to the appeal is made by the district board of school-district No. 1, who alleges that, if the statements made by the appellant are true, her child is not entitled to free tuition in the public schools in Waukesha, as she has no residence in that place, and never has resided there; that she is entitled to free tuition for her children only at the place of her residence, which at present is in the city of Milwaukee.

Much is said in the answer concerning the ability of Mrs. Smith to maintain her children, or rather this child, with herself, to pay the tuition required of non-resident children in the Waukesha school, the vote of the district concerning the admission of non-resident pupils, the danger of being “flooded” with applicants of similar character, etc.; all of which appears to be wholly irrelevant. The simple question in this case is whether Phillip Smith is a resident of school-district No. 1, Waukesha, and, as such, entitled to free tuition in the public school. If he is a non-resident, then he can attend such school only upon the terms prescribed for such pupils. If he is a resident, then he is entitled to attend the school irrespective of the mother's ability to pay tuition or to support him in Milwaukee or elsewhere, or the convenience of the district or any vote of the district relating to non-resident pupils.

The respondents call the attention of the state superintendent to a decision of a federal court holding that the domicile of a minor is the same as that of the parent. I am not unfamiliar with the legal controversies that have arisen over the matter of domicile of minors, nor ignorant of the tenacity with which courts of high degree have adhered to the doctrine laid down in the decision referred to. But if I do not misunderstand the decision of courts on this matter, they have strongly insisted that the domicile of the child is determined by that of the father, and that these cases have all had reference to the custody and control of the persons and estates of minors. They have not included consideration and determination of questions relating to special rights and privileges to be affected by simple residence or inhabitancy. Furthermore, I understand that neither elementary writers nor decisions of courts are clear or unanimous upon the point of how the legal domicile of a minor may be changed; but decisions are not wanting in which courts have declared that exceptional cases might arise, when the father has abandoned his minor children, in which it would be impolitic and unjust to hold to the usual doctrine of a minor's domicile. If it was deemed necessary to put this case into that category, a very strong plea might be made for so doing. For while it is alleged and admitted that the mother of Phillip Smith is the legal guardian thereof, there is no proof that such is the case, nor that the father has ever been dispossessed of his natural and legal right to control the person and estate of his child, and that his domicile, and not the residence of the mother, does now constitute the actual legal domicile of this child. For aught that appears in these papers, that domicile is unknown and undiscoverable, and if legal domicile alone is to determine the matter, the child might be debarred from all schools in the state, and practically from all instruction during proper school age.

It does not appear to the state superintendent that the constitution or laws of this state contemplate that the right to attend the public schools is to be determined by ascertaining the legal domicile of the child. The constitution is significantly silent upon the matter of limitations upon attendance, except that of age. It does declare, however, that tuition in these schools shall be free. The supreme court has affirmed the validity of our statutory system of districts, for the maintenance of public schools, and the right of such districts to refuse admission to persons who do not reside therein. This term ‘reside,’ however, is used by the court and in the statutes, in its general, popular sense, rather than in the restricted, technical sense of legal domicile. The supreme court and the statutes alike speak of ‘children residing’ in districts, of ‘children residing in the district on the 30th day of June’ being enumerated, of a ‘child residing in one district not having an absolute right’ to the privileges of a common school in another district, etc.

Chapter 121, Laws 1879, enacted for the purpose of securing to every child between certain ages the benefits of an elementary education, seems to be conclusive upon this point. This statute makes it the duty of every person having in ‘charge’ a child of compulsory school age to send such child to school at least twelve weeks each year, and imposes a penalty for the neglect of such duty. Not parents and guardians alone, but every person having in charge a child between the...