10 Mont. 17 | Mont. | 1890
This action was commenced by School District No. 7, county of Gallatin, Territory of Montana, against the treasurer of said county, to enjoin him from paying to certain school districts the sums of money which are specified in the complaint, and obtain a decree for the payment thereof to the plaintiff. The districts which might be affected by the judgment were made parties and answered. The evidence, concerning which there is no conflict, establishes these facts. The clerk of said School District No. 7, enumerated between the twentieth and thirtieth days of November, 1888, the children between the ages of four and twenty-one years, who are described in the pleadings, and boarded or lived there with their respective mothers in houses which had been rented.
The fathers of these children were bona fide residents of the districts, who appear and deny the right of plaintiff to recover said moneys. The children were attending schools in the school district No. 7, when their names were given to the clerk by their mothers. The county superintendent of common schools of the county corrected the census reports of the clerks of the districts by crediting or transferring the names of the children to the school districts in which their fathers lived, and apportioned said moneys accordingly.
Two questions are discussed by counsel, and will be considered by the court. No authorities have been cited, and the parties differ respecting the construction of the statute regulating the subject. Were the children legally enumerated by the clerk of the School District No. 7? Did the county superintendent have the power to disregard the census which had been taken by this clerk, and apportion the school funds contrary thereto?
The following provisions of the “Montana School Law” are applicable to this investigation: —
“Sec. 1886. It shall be the duty of the district clerk to
“Sec. 1869. The county superintendent shall apportion all school moneys to the school districts in accordance with the provisions of this article.....”
“Sec. 1907. All school moneys apportioned by county superintendents pf common schools shall be apportioned to the several school districts in proportion to the number of school census children, between four and twenty-one years of age, as shown by the returns of the district clerk for the next preceding school census.” The statute- makes the clerk liable for neglect through which his district shall fail to receive its apportionment of school moneys. (§ 1917.)
“Sec. 1889. Any board of trustees shall have power to make arrangements with the trustees of any adjoining district for the attendance of such children in the school of either district as may be best accommodated therein, and to transfer the school moneys due by apportionment to such children to the district in which they may attend school.”
“Sec. 1890. Every school, unless otherwise provided by special law, shall be open for the admission of all children between the ages of five and twenty-one years of age residing in that school district, and the board of trustees shall have power to admit adults and children not residing in the district, whenever good reasons exist for such exceptions.”
Upon the trial, the county superintendent of common schools testified: “ All these children attend school in said respective
In Lamar v. Micou, 112 U. S. 452, Mr. Justice Gray says in the opinion: “An infant cannot change his own domicile. As infants have the domicile of their father, he may change their domicile by changing his own; and after his death, the mother, while she remains a widow, may likewise by changing her domicile, change the domicile of the infants; the domicile of the children in either case, following the independent domicile of their parent.” (School Directors v. James, 2 Watts & S. 568; 37 Am. Dec. 525; Story on Conflict of Laws, p. 46.) In Kennedy v. Ryall, 67 N. Y. 379, the court observes that “generally speaking domicile and residence mean the same thing.”
The names of the children referred to in the case at bar should have been placed upon the school census of the districts respectively where their fathers resided. But the appellant contends that the county superintendent of the common schools should be controlled in the apportionment of said moneys by the returns of the clerk of school district No. 7. This is his duty when there is no error upon their face, and his action has not been restrained by due process of law. But when the clerks furnish to this officer full reports, similar to the documents which are found in the transcript, and show that some children are the residents of two distinct districts, or that the father resides in a district which is different from that of his children, the mistakes which are apparent should be rectified. The county superintendent is compelled to ascertain from the returns, if possible, the number of the school children in each district before the apportionment of the public moneys can be made.
It is therefore ordered that the judgment be affirmed with, costs.