Rockwell v. Independent School District

GATES, J.

This is a sequel to School District No. 20 v. Steele, 46 S. D. 589, 195 N. W. 448. In that case we held that the federal Indian school lands near Rapid City, while within the territorial boundaries of school district 20, were not' a part of said district because jurisdiction over said lands had been ceded by this state to the federal government. It followed that the employees of the Indian school residing therein were not residents of school district 20, and therefore that school district 20. was not liable for the payment of the tuition of children of said employees in the Rapid City high school.

One of said children, possessing a common school diploma issued by the county superintendent of schools of Shannon county, applied for admission to the Rapid City high school, which was refused. This proceeding in mandamus was instituted to compel such admission, resulting in a peremptory writ requiring it. The independent school district of Rapid City and its superintendent appeal from the judgment and from an order denying new trial.

The portion of section 7517, Rev. Code 1919, as amended (by chapter 214, Laws 1921, necessary to an understanding of the matter before us, is as follows:

“Any pupil who shall successfully complete the work of the* eighth grade as established in the state course of study, and who holds a common school diploma granted by the county superintendent, or other eighth grade diploma indorsed by him, is privileged to continue his school work up to and including the twelfth grade by attending any public high school or state educational institution of this state, or adjoining state, furnishing a higher course of study than that offered by his home district- without payment of any tuition except for laboratory fees or for individual instruction outside of reg'ular school hours. Provided, that the school district or state educational institution in which such pupil is enrolled as a high school student, shall be compensated by the school board of his home district for such instruction as hereinafter provided.”

Manifestly, the above legislation relates only to children of residents of South Dakota. It follows therefore that if the parents are residents of this state, the plaintiff is entitled to attend the high school of appellant district provided her home district pays the tuition.

Residence upon this ceded Indian school land does not of itself constitute the parents residents of school district 20, nor of Pennington county, nor of the state of South Dakota. School District v. Steele, supra; 20 C. J. 74.

But, as is stated in 20 C. J. 73:

“Persons employed in the service of the United States government neither acquire a residence for the purpose of voting in the election districts in which they may be stationed nor lose their political domiciles in the places from whence they came.”

Therefore the mere removal of the parents of plaintiff from some other place in this state to the federal land in question for the purpose of engaging in the public service would not cause such parents to lose their residence at the former place of residence in this state and, if not otherwise lost, such formier residence would continue. Of course, if the parents came to reside on this federal land from- another state, they have not acquired residence and citizenship in this state.

Because of the fact that it was not shown that the parents of plaintiff were residents of this state at the time of their removal to this federal land- for the purpose of engaging in the public service, and because of the fact that, if the above were shown, it was not shown that the parents had not otherwise lost their previous residence within this state, the record does not contain sufficient facts to sustain the judgment.

The judgment is reversed, and the cause is remanded for a new trial. No costs will be taxed in this court.

McNENlNY, Circuit Judge, sitting in place of ANDERSON, J., disqualified.