STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
May 27, 1968
Gordon A. Diedtrich
State Superintendent of Public Instruction
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 67-68 pg. 487
Schools & School Districts. School Residency.
You have requested an opinion based upon the following factual situation:
"Mr. and Mrs. "X" who reside at Mitchell, South Dakota moved from out of state to Mitchell, South Dakota in the fall of 1966 and have continued to reside in Mitchell since such time where he has been engaged in the carpentry trade. Prior to such time 
their children "A" and "B" had attended the New Hope Village Private School for Mentally Retarded Children at Southerland, Nebraska. The boys continued to stay in such private school until 1967.
"The Mitchell Public School refused to enroll such boys in their special education classes because tests showed them to have an estimated mental age of two years and one month and two years and three months and the Mitchell classes do not accept children until they have a mental age of three years.
"The boys entered the Hope School in Sioux Falls in November, 1967. They were assigned to the Hope School for Retarded Children in Sioux Falls by the Division of Pupil Personnel Services on March 1, 1968, provided the Davison County Superintendent of Schools would certify that they had school residence in Davison County. The County Superintendent refused to certify that they had school residence in such county.
"The children are still in the Hope School in Sioux Falls and to date no tuition has been paid for them. Davison county has been presented a bill for the tuition and has refused payment on the grounds that the boys do not have school residence in Mitchell.
"The boys were committed to the Redfield State Hospital by the Davison County Court in July 1967."
You have asked the following specific questions:
"1. Where do the boys in question currently have school residence?
"2. When did they legally acquire school residence?"
47 Am. Jur 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 It is not indispensable that school children should have a legal domicile in the district in which they claim school privileges if they actually reside in such district with no present purpose of removal and are under the control of 
one who fulfills the minimum requirements of being in loco parentis."
In Grand Lodge 1. 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 or is sufficient."
25 Am. Jur. 2d S 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 P2d 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."
SDC 1960 Supp. 15.3003, as amended by Chapter 52, Session Laws of 1965, reads in part as follows:
"School residence for the purpose of claiming free school privileges shall mean actual residence or the place where the student actually lives; however, the student, his parents, or legal guardian shall not establish school residence and be-exempt' from the payment of tuition where the residence was acquired solely or principally for the purpose of Obtaining free schooling… When a child has been assigned to attend a special education class in a specified school district, where such child does not have school residence by the State Department of Public instruction, the school residence of such child remains within the school district wherein Such child had school residence at the time if such assignment."
Subsection (1) of SDC 1960 Supp. 15.3004, as amended' by Chapter 77, Session Laws of 1961 reads as follows:
"1. For the purpose of this Act, exceptional children shall mean all children under the age of twenty-one years who are residents of the State of South Dakota and who because of their physical or mental condition are not adequately provided for through the usual facilities of the public schools."
SDC 1960 Supp. 30.0605-1 provides that a person must be a resident of the State of South Dakota to qualify for admission to the Redfield State Hospital and School. see 1953-54 AGR 228 and 1959-60 AGR for a general coverage on school residence.
It is my opinion that Mr. and Mrs. "X" have a prima facie case that they have school residence in Mitchell, South Dakota and that their children A and B also have school residence in Mitchell.
It is my opinion that their school residence was acquired in Mitchell at the time they arrived in Mitchell.
