August 20, 1980
Mr. Thomas C. Barnett, Jr.
Deputy State's Attorney
Haakon County
Philip, South Dakota 57567
Official Opinion No. 80-55
Dual Residency: Tuition and Voting Implications
Dear Mr. Barnett:
You have requested, on behalf of the Haakon County School Board, an official opinion from this office regarding the following factual situation:
FACTS:
The Haakon County School Board has been attempting to collect tuition from parents of several children who have been attending the local elementary school for the past two years. The parents (Mr. & Mrs. X) have refused to pay the tuition and maintain that they are residents of the Haakon County School District. Mr. & Mrs. X resided in Kadoka until the fall of 1978, when they purchased a ranch east of Philip. The ranch lies within a school district other than that of Philip and other than that of Kadoka where Mr. & Mrs. X had been residing. By the terms of the purchase agreement the seller retained a life estate in the house located on the ranch. Mrs. X took a job in Philip in the fall of 1978. Mr. & Mrs. X acquired a post office box in Philip and enrolled their children in the Philip school system. Mr. & Mrs. X were unable to locate housing in Philip and instead they and their children lived in a trailer house located on the ranch. Mrs. X brought the children to school each day on her way to work in Philip. In May of 1979, Mr. & Mrs. X purchased a house in Philip, but because of plumbing and electrical renovations, which were not completed, neither they nor the children have ever actually inhabited the house in Philip. Mr. & Mrs. X maintain that the trailer house is a temporary residence and that the Philip house is their legal residence. On June 24, 1980, Mr. & Mrs. X registered to vote in the ward and precinct wherein the Philip house is located. At the time they registered, Mr. & Mrs. X informed the County Auditor that although they had never lived in the house, they would be moving in prior to the upcoming election. The school district maintains that since neither Mr. & Mrs. X nor their children have ever actually resided within the school district, the parents cannot avail themselves of SDCL 13-28-9, and has demanded tuition payment for the 1978-79 school year and the 1979-80 school year.
Based upon the above facts, you have asked the following questions:
QUESTIONS:
1. Are the children of Mr. & Mrs. X entitled to receive free school privileges at Philip?
2. Are Mr. & Mrs. X entitled to vote in the ward and precinct in which the unoccupied house is located or must they vote in the precinct in which the trailer house is located?
IN RE QUESTION NO. 1:
I feel compelled to begin my discussion of this question by noting that this office is not equipped nor constituted to be a finder of fact. Subsequent to the submission of your question, counsel for Mr. & Mrs. X brought to my attention various additional facts, including an indication that the youngest child of Mr. & Mrs. X was asked by administrators within the Philip school system to attend summer school classes which he began attending July 21, 1980, and the fact that the remodeling of Mr. & Mrs. X's residence in Philip is nearly complete and that they intend to move into the structure late this summer. Therefore, I will not make a determination concerning the liability of Mr. & Mrs. X for the past due tuition. This is a determination which must be made in the first instance by the Haakon County School Board. If the parents are unwilling to abide by the Board's determination and the Board wishes to pursue the matter, a judicial determination would be required.
I will restate some principles to guide the Haakon County School Board in making this determination. First, as I stated in Official Opinion No. 80-45 to Mr. Robert A. Amundson of Lead, South Dakota:
My predecessors have been consistent in holding that it is not the function of the Attorney General to decide school residence questions. See 1959-60 A.G.R. 268; 1961-62 A.G.R. 53; 1963-64 A.G.R. 40, 80. I concur with the opinions expressed by my predecessors. Reference to those reports will reveal that this office has consistently held that school residence is not difficult to achieve and requires little or no formalities. Prior opinions have also pointed out that SDCL 13-28-9 provides the only legal basis for denying free school privileges based on residency.
In addition, my immediate predecessor addressed this matter at length in Official Opinion No. 76-94 concluding:
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.
I also note with approval the quotations from 47 Am. Jur. § 152 and Grand Lodge I.O.O.F. v. The Board of Education, 90 W.Va. 8, 110, S.E. 440, 48 A.L.R. 1092. In each of those quotes it is noted that the requirements for establishing school residency are virtually always less stringent than those requirements necessary to establish residency for other purposes such as voting.
Lastly, I would direct your attention to SDCL 13-28-9, 13-28-15, 13-28-19, 13-28-22, 13-28-23 and 13-28-24, all of which deal with school residence, assignment, tuition, and free school privileges. Those statutes place a responsibility on the school district to determine the pupil's school residence at the time of enrollment, and if school residence is not within the enrolling district, or assignment by another district has not been made, then tuition expenses must be collected in advance from the student, or his parent or guardian.
In conclusion then, the Haakon County School Board must determine this factual dispute in the first instance, giving special concern to the elusive matter of the intention of the parents. A final determination can, of course, only be made by a court.
IN RE QUESTION NO. 2:
There is insufficient information contained in the factual statement to make a firm determination concerning this question. Your question implies that the registration of Mr. & Mrs. X is questioned as between two precincts within the same county. If that is the case, as noted in Official Opinion No. 74-45, SDCL 12-4-12 as rewritten in 1974, does not require reregistration of a voter who moves from one precinct to another. Further elucidation on the question of residence for the purpose of suffrage can be found at 1971-72 A.G.R. 159; 1963-64 A.G.R. 370; 1963-64 A.G.R. 380; 1949-50 A.G.R. 83; and 1943-44 A.G.R. 139.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
