State ex rel. Vale v. School District of City of Superior

• Decision Date: 09 June 1898
• Docket Number: 8127
• Citation: 75 N.W. 855,55 Neb. 317
• Parties: STATE OF NEBRASKA, EX REL. ELI VALE, v. SCHOOL DISTRICT OF CITY OF SUPERIOR ET AL
• Court: Nebraska Supreme Court

75 N.W. 855

55 Neb. 317

STATE OF NEBRASKA, EX REL. ELI VALE, v. SCHOOL DISTRICT OF CITY OF SUPERIOR ET AL

No. 8127

Supreme Court of Nebraska

June 9, 1898

ERROR from the district court of Nuckolls county. Tried below before HASTINGS, J. Affirmed.

AFFIRMED.

Cole & Brown and R. D. Sutherland, for plaintiff in error.

Buck & McConnell and Stubbs & Mauck, contra.

OPINION

NORVAL, J.

Eli Vale made application to the district court of Nuckolls county for a peremptory writ of mandamus to compel the school board of the school district of the city of Superior to permit the children of relator to attend the public schools of said city without payment of tuition therefor. Issues of fact were joined, upon which a trial to the jury were determined adversely to the relator, and the action dismissed.

Section 4, subdivision 5, chapter 79, Compiled Statutes, relating to the admission by school boards of non-resident pupils to the public schools, declares that "said board may also admit to the district school non-resident pupils and may determine the rates of tuition of such pupils and collect the same in advance;" and section 3, subdivision 6, of the same chapter confers upon the district board of any high school district the power "to determine the rates of tuition to be paid by non-resident pupils attending any school in said district." If, therefore, as contended by respondent, relator's children were non-residents of said school district, they were not entitled by law to attend the public schools without payment of tuition, and the writ was properly denied.

It is argued that the verdict is against the evidence. The controversy on the trial in the court below was whether or not plaintiff's children were residents of the respondent school district, and the evidence relating thereto was conflicting. That introduced by the respondents was to the effect that relator owned a farm in Kansas and had resided thereon with his family as a home for many years; that each fall, for two years prior to the bringing of this suit, he moved his family, and a portion of his household goods, to the city of Superior to permit his children to attend the public schools of that city, and at the close of the school year they moved back to their farm in Kansas, where they remained until the beginning of another school year; that while Mrs. Vale and the children were in Superior, relator spent the greater portion of his time on the Kansas farm that he voted in that state after the removal of his family to Superior, and that the removal to said city was temporary merely, and not for the purpose of making the same the home of relator and his family. The evidence adduced by the relator tended to show that the removal to Superior was for the purpose of making that his permanent home, and that he exercised the rights of franchise by voting at the city election held in Superior in the spring of 1893. This court, in Berry v. Wilcox, 44 Neb. 82, 62 N.W. 249, defined residence to be the place where one has his established home, "the place where he is habitually present and to which when he departs he intends to return. The fact that he may at a future time intend to remove will not necessarily defeat his residence before he actually does remove. It is not necessary that he should have the intention of always remaining, but there must coexist the fact and the intention of making it his present abiding place, and there must be no intention of presently removing." In Wood v. Roeder, 45 Neb. 311, 63 N.W. 853, it was decided that the word "residence" is synonymous with the term "domicile," and the domicile of a person is the place where he has a fixed and permanent home, and to which, when absent, he has the intention of returning, and "to effect a change of domicile there must not only be a change of residence, but an intention to permanently abandon the former home. The mere residing at a different place, although evidence of a change, is, however long continued, per se insufficient." With the foregoing definitions we are content; and applying them to the case at bar, there is no room to doubt that the evidence before the jury was of such a character as to justify a finding that Mr. Vale was a bona fide resident of Kansas, although there is in the record other evidence from which the inference could have been drawn that his permanent residence...