State ex rel. Blackburn v. Smith

64 Mo. App. 313 | Mo. Ct. App. | 1896

Gill, J.

The school law of Missouri requires the establishment and maintenance of separate free schools for colored children. R. S. 1889, secs. 7999, 8002, 8003. It is made the duty of the school board of each district, “when there are within any school district in this state fifteen or more colored children of school age, as shown by the last enumeration, *** to establish and maintain,- within such school district, a separate free school for said colored children,” having the same length of term, privileges, and advantages as are provided for white children. R. S., sec. 8003. The enumeration here suggested, and which must determine the action of the school board, is provided for in section 7999. It reads: “The school board of each district shall, between the thirtieth day of April and the fifteenth day of May of each year, take, or cause to be taken and forwarded to the county clerk, an enumeration of the names of all persons over six and under twenty years of age, resident within the district, designating male and female, white and colored, and age of each, together with the full name of the parent or guardian of each child enumerated***; and any parent or guardian who shall knowingly furnish to any enumerator the name of any child who is under six or over twenty years of age, or who is a nonresident of the district, shall be guilty of a misdemeanor,” etc.

Now, the vital question here is, were the Rhodes children, within the 'meaning of this statute, residing in the Houstonia district, on May 2, 1894, when the clerk of the school board made the enumeration for that year. In other words, did Mr. Nichols, the clerk acting for the school board, make and return at that time, a false enumeration, in the meaning of the above statute? We think he did not. In our opinion, Rhodes and his family were not then, within the meaning of the school law, residents of the Houstonia district.

Rhodes had, prior thereto, moved out of that school district, and was, for school purposes, residing in another and different district. It matters not that he contemplated a return within a few months, a year, or a number of years. It was enough that when the enumerator went to his former abode, he had gone— had moved with his family to another district — had abandoned his former dwelling, leaving same vacant and unoccupied, with no advice to the enumerator, or the school board, that he, Rhodes, intended to return at all.

The term “residence” has no fixed meaning applicable alike to all cases. It must be understood differently, according to a number of varied conditions. In some instances it is regarded as synonymous with “domicile*” but they are not, in all cases, to be treated as convertible terms. It is said that domicile is residence combined with intention. It has been well defined to be residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. A man can have but one domicile, for one and the same purpose, at any one time, though he may have numerous places of residence. His place of residence may be, and most generally is, his. place of domicile, but it obviously is not by any means necessarily so, for no length of residence, without the intention of remaining, will constitute domicile. In common language, it is not more usual than correct to say that a person resides in the city during the winter and in the country during the summer. Stout v. Leonard, 37 N. J. L. 492; Jacob’s Law of Domicile, sec. 73, ei seq.

The “residence” of the school statute, from which we have quoted, is not the synonym of domicile. The context clearly shows that the term resident was not so used by the legislature. The statute makes it the duty of the enumerator to go about the district and ■get from parents or guardians the names of each and every child of school age therein residing, and he is required to accompany this report, containing the individual names of the children, “with the full name of the parent or guardian of each of such children, so enumerated,” and punishment is provided for any parent or guardian who shall give false information to the enumerator. How, now, could the enumerator get this information, and cast the responsibility where it belongs, except by a personal interview with the parent or guardian? And this would require the presence in the district of such parent or guardian. It is not to be expected that the enumerator will follow up those who have apparently moved from the district and get from them their secret intentions as to whether or not they have permanently abandoned their former abode. Neither is it incumbent on such enumerator to. investigate the antecedent movements and present intentions of those apparently resident in the district and determine whether or not such persons do or do not intend to remain; or whether or not said persons are only temporary residents. In determining who resides in its district, the school board, or the person by it engaged to make the enumeration, must necessarily be guided by the usual and ordinary indicia of residence, or absence of such indications; and the enumeration is not to be condemned because of certain secret mental resolves, or concealed intentions of persons living or having lived, in the district. These remarks apply to the facts of this case. On the face of things, Rhodes had left the school district; had taken his family and household goods and moved to another; and for what length of time he was to remain, if, indeed, he was ever to return, was not known to the school board, or to the enumerator. The board had the clear right, it was its duty, to act on these manifest appearances and treat Rhodes and his children as nonresidents of that school district.

The purpose the statute has in requiring an enumeration is to determine the children present in the district, so as to make the necessary provisions as to teachers, schoolhouses, etc., for the approaching scholastic term. This necessarily excludes any consideration of those absent from the district who may be residing elsewhere and who, the act assumes, will not attend the school terms about to begin.

We hold, then, with the defendant’s contention, that the Rhodes children were not, at the date of the enumeration of 1894, residents within the Houstonia school district, as that term is used and intended in section 7999 of the Revised Statutes; they were not within that district between April 30 and May 15, 1894, as required by section 8003, so as to entitle them to be counted and enumerated, and hence the judgment rendered below in plaintiff’s favor should be reversed. It is so ordered.

All concur.