October 8, 1976
Ronald D. Campbell
State's Attorney
Hand County Courthouse
Miller, South Dakota 57362
OFFICIAL OPINION NO. 76-94
School residency requires a showing of intent.
Dear Mr. Campbell:
You have requested an opinion from this office in regard to the following factual situation.
FACTS:
A high school student whose parents physically resided in school district "A," attended high school in school district "B" under an arrangement rising out of reorganization of the various school districts several years ago. School district "A" had paid her tuition to school district "B" for at least one year prior to the 1975-76 school year.
Approximately December 1, 1975, the parents and the student moved their physical domicile to school district "B" and remained in school district "B" during the remainder of the 1975-76 school year. The parents of this student are registered to vote in the county encompassed by school district "A," have all of their personal and real property situated in school district "A" and buy all automobile licenses in school district "A." Neither the parents nor the student own any property or take any of the other actions in school district "B." The parents do not plan to establish residence in school district "B" and plan on returning to school district "A" sometime in the near future.
School district "A" believes that they should only be required to pay the tuition for this student up to the point where the parents and student actually physically move themselves to school district "B" and not for the whole 1975-76 school year. School district "B" is of the opinion that school district "A" is responsible for paying the tuition for this high school student during the entire 1975-76 school year.
Based upon the above facts you ask:
QUESTION:
Is school district "A" required to pay the tuition for the entire 1975-76 school year for this high school student or must the tuition be pro-rated according to how long the student's parents resided in school district "A"?
SDCL 13-28-9 reads as follows:
School residence for the purpose of claiming free school privileges shall mean the legal residence or domicile of the student's parents, legal guardian, or other person in loco parentis to the student; however, the student, his parents, legal guardian or other person in loco parentis to the student shall not establish school residence and be exempt from the payment of tuition where the residence of the parents, legal guardian or person in loco parentis to the student was acquired solely or principally for the purpose of obtaining free schooling. When a child is enrolled in a school in a school district, the school residence of such child as determined at the time of such enrollment shall not change during such school fiscal year, unless such child ceases to be an enrolled member of a school within such district.
In 1967-68 AGR 487, the Attorney General set forth the following information with reference to school residency:
47 Am.Jr. §152 reads in part as follows:
Although there is some conflict in the decisions as to what constitutes a residence entitling a child to school privileges, statutes providing for a free public-school system are usually construed as evidencing an intention on the part of the state that all children within its borders shall enjoy the opportunity of a free education. In line with this construction of the statutes, residence entitling an infant to school privileges is distinguished from domicile, or the technical and narrow use of the term "residence," for the purpose of suffrage or other like purposes, and is construed in a liberal sense as meaning to live in or be an inhabitant of a school district, . . .
In Grand Lodge I.O.O.F. v. Board of Education, 90 W. Va. 8, 110 S.E. 440, 48 ALR 1092, the Court said:
The residence necessary to entitle a child to attend public schools without payment of tuition is not such as would be required to establish a right to vote, or which would fix the liability for the support of a pauper, or for the purpose of determining the right of administration of his estate, but a residence even for a temporary purpose, not solely to enjoy the benefits of the free schools, and with the intention of removal as soon as that purpose is accomplished is sufficient.
25 Am.Jur. 2d §23 reads in part as follows:
Length of residence is not a factor where the act and the intention to acquire a domicile concur. No definite period of time is necessary to create a domicile, unless the law so provides. Any period of residence, however short, will suffice when coupled with intent, whether it is for one day, for an hour, or only for a moment. Long-continued habitation, however, may be an important circumstance in determining the question of domicile, in the absence of other evidence showing the avowed intention. . . .
A restatement of Conflict of Laws, §22 provides "although there may be a special, even an unworthy, motive in making the change, if the new dwelling place is acquired with the necessary intention of making it a home, it becomes a domicile of choice."
In Newman v. Graham, 82 Idaho 90, 349 P.2d 716, 83 ALR 2d 492 the Court said:
It has been held that one acquires a domicile within the state if it is his intention to remain; one acquires a mere residence within the state if it is his intent to leave as soon as his purpose of entry is accomplished.
In reviewing the above-cited opinion and other opinions of the Attorney General, it is my opinion that the key factor in determining the residency for school purposes is the intent of the party involved in the school residency matter. In order for a student to be declared a resident for school purposes, the student, parent, guardian or person in loco parentis would have to express an intent of being a resident for school purposes. In the fact situation you submitted, it appears that there is an absence of such expressed intent; therefore, in answer to your specific question, it is my opinion that school district "A" has the obligation to pay the high school tuition for the entire
1975-76 school year.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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