This action was instituted on the 19th day of February, 1912, by the respondent filing his petition in the circuit court of Crawford county, ask
The facts are practically undisputed. Preston Gibson at the time this suit originated, was seventeen years of age, and the relator, his grandfather, a taxpaying citizen of the Steelville school district, and had been for many years. The boy’s parents resided at Springfield, this state, and his name appeared in the enumeration list as a school pupil, in that city, for the year 1911. The boy had attended school in Springfield for several years, but during vacations had lived much of the time with his grandfather at Steelville. The relator’s wife was dead, but he had an unmarried daughter who kept house for him, and lived with him as a member of his family.
Some time in the summer of 1911, the grandfather asked the boy’s father to let him have the boy, promising to send him to school, and to clothe and board him. The testimony preserved in the record on this point is as follows: “Q. State what Mr. Gibson did? A. Pie asked me, he said, ‘Grandpa, do you want Preston, do you really want him,’ and I said that I did and he says, ‘Well, I will give him to you, you can take him and he can stay with you,’ and I says, ‘I will take him and treat him as one of the family, ’ and I says, ‘I like Pres, he minds me and he is a good boy to me,’ and he says, ‘You can have him.’ Q. That
Under the above arrangement the boy went to live with his grandfather, who, according to all the evidence, ever since said time, had controlled the child, purchased his clothing, and furnished him with the necessaries of life, and neither his father or mother had contributed anything to his support.
There was some conflict in the testimony as to whether the grandfather had agreed with the school authorities to pay a tuition, but if the child was entitled to attend the school without payment thereof, this question is immaterial.
The rights of the parties must be measured and determined by the provisions of our statutes read and construed with reference to the policy of the state in school matters. The statutory law of the case is found in section 10785, Revised Statutes 1909. This section provides that the board may admit pupils not residents within the district, and prescribe the tuition fee to be paid by the same. This part of the statute is followed by the proviso: ‘ ‘ That the following children, if they be unable to pay tuition, shall have the privilege of attending school 'in any district in this state in which they may have a permanent or temporary home: First, orphan children; second, children bound as apprentices; third, children with only one parent living, and fourth, children whose parents do. not contribute to their support.”
The policy of this state is to educate, and to furnish free of charge, good schools for all children of school age, and even to compel the attendance of children thereto. Section 1 of article 11, of the state Constitution, reads: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this state between the ages of six and twenty years.” It is therefore the duty of the courts to liberally construe our statutes relating to schools, and in such a manner as to open, and not to close, the doors of the schools against the children of the state. As said by the Supreme Court of Wisconsin in State v. Thayer,
While the statute must be liberally construed, we also recognize the fact that it would not be right to permit children living in districts whose taxpayers have neglected or refused to maintain schools to have the benefits free of charge of schools in districts wherein the taxpayers have burdened themselves to erect school houses, employ competent teachers and maintain schools. [Binde v. Klinge,
While the statute was in this language, the case of Binde v. Klings, supra, was decided by the St. Louis Court of Appeals. In that case Mrs. Binde, a widow, who had resided in the Hermann school district for more than forty years, applied to the court for an injunction to restrain the directors of that district from refusing the privileges of the school to her granddaughter, Paula’ Muehl. Paula’s father resided in Montgomery county, but she was living with her grandmother at Hermann, under an arrangement made with the child’s father, to the effect that she was to live with the grandmother until the latter died or the child married. In fact, the arrangement in that case was substantially the same as the one we are now considering. In. passing on the case, Judge Thompson held the word “resident” used in the statute, was to be distinguished from the word ‘ ‘ domicile, ’ ’ and without the proviso in the statute, if the child had gone to live with the grandmother without any expectation of returning to its parental residence while the grandmother lived, or while the child remained unmarried, and not merely for the purpose of acquiring the privilege of a better school than existed at the domicile of the parent, she might be a resident of the grandmother’s school district, although the father resided elsewhere. The court held, however, that the proviso limited the general language, and only permitted orphan children, or children bound as apprentices, to attend schools in districts where they had a permanent
A careful reading of the Binde case will lead to the conclusion that had the statute then been in its present form, a different judgment would have been rendered.
The statute is not ambiguous, and plainly provides that children who are unable to pay tuition, and whose parents are not contributing to their support, shall have the privilege of attending school in any district in which they may have a permanent or temporary home. It will be noticed that the privilege is granted, regardless of the residence or domicile of the parent.
It seems to us that the evidence clearly brings the case within the fourth subdivision of the statute. The boy, to all intents and purposes, was a resident of the school district, although his domicile may have been at Springfield. He was living in the district as a member of the relator’s family, and under an agreement made with his father by which the relator had agreed to take, care for, and educate him. It was not a contract made for the sole purpose of permitting him to attend the Steelville' school. The grandparent was aged, and the boy had lived with him a part of the time for more than five years, and undoubtedly there existed between them a degree of affection perhaps equally as strong as that between father and son. The common experience of mankind proves the truth of this statement, and therefore, it needed the testimony of no witness to establish it. But the grandfather did testify that he liked the boy and wanted him to live with him, and it was satisfactory with the father and the son also. There is -no claim that the contract was not made in good faith, or that it was not being strictly performed by all parties thereto. The fact that it was
In McNish v. State ex rel.,
We have not overlooked the point forcibly made in appellants ’ brief that the Steelville district is largely maintained by tuition fees received from non-resident pupils, but we do not believe that the effect of this decision will be to deprive the school of such fees. This boy did not go to Steelville for the purpose of obtaining the benefit of its schools. While in all probability, the schools of Steelville rank with the other high schools of the state, and afford excellent facilities for the education of the youth, yet it must not be overlooked in this case, that this child’s parents live in Springfield, where, no doubt, schools of equal standing are maintained, and there could possibly have been no reason for sending the child to live with its grandfather for the purpose of better school facilities.
An instructive case is State v. Selleck,
We believe the above named cases correctly interpret the law, and we have no doubt of the ability of the trial court to determine, on a hearing, whether the pupil is in the district temporarily, and for the purpose of obtaining the benefits of the school therein, without contributing to the support thereof, or whether he is there under such conditions as entitle him to attend the school free of charge. But reg’ardless of this, for us to hold that Preston Gibson, under the testimony, is not entitled to attend the Steelville school, without the payment of the tuition, is to annul one of the provisions of the statute, and this, we have no right to do.
The judgment will be affirmed.