
    Baucher et al. v. Board of Education of Coldwater District.
    (No. 16632
    Decided November 19, 1971.)
    Common Pleas Court of Mercer County.
    
      Mr. Perry Q. Wise, for plaintiff.
    
      Mr. Dean James, prosecuting attorney, for defendant.
   Dull, J.

This is an action for declaratory judgment involving the interpretation of E. C. 3313.64, which in pertinent part reads as follows:

“The schools of each city, exempted village, or local school district shall be free to all school residents between six and twenty-one years of age * * *. School residents shall be all youth who are children or wards of actual residents of the school district. District of school residence shall be the school district in which a school resident is entitled to attend school free. * * *
“The board of education of a city, exempted village, or local school district may admit other persons to the public schools of its respective district upon the payment of tuition within the limitation of law.”

The plaintiffs are the parents of eleven children: two in college, six of school age and three of pre-school age. The Coldwater Exempted Village School District -(hereafter referred to as the Coldwater District) is situated on the north side of the Seigrist-Jutte Road which runs in an east-west direction and the Southwest Local School District (hereafter referred to as the Southwest District) is situated on the south side of the road in Mercer County, Ohio.

The plaintiffs own houses on both sides of the road and pay taxes on both houses. The house on the north side of the road in the Coldwater District (hereinafter referred to as the north house) was acquired in 1949 and is situated on an acre of land. It measures 24 feet by 28 feet with two additions and contains four rooms. It has no water and no bathroom. The heating unit is being installed and building additions are being planned with part of the material purchased. It does, however, have a refrigerator containing milk and cider.

The plaintiffs and all of their children, with the exception of the two oldest ones attending college, sleep in the north house and eat their breakfast there. The children of the plaintiffs have been attending the schools of the Coldwater District for the last six years. Previous to that they attended the schools of the Southwest District. A school bus driver for the Coldwater Schools testified that both this year and last he picked the children up in the morning at the north house, although several times they came from the south house for the pickup.' But the teacher who taught one of the children, Debra Baucher, driver training in July 1971, for a two-week period, picked her up and dropped her off at the south house. The audito'r of Mercer County testified that the north house was listed as vacant or unoccupied in 1961. However, in August of 1971, at the request of the plainitffs and as a result of two investigations by his office, the listing of the north house' was changed to occupied and its tax valuation raised.

The plaintiff Morris Baucher voted only in Washington Township of Mercer County (Coldwater District), whenever he voted in the last five years. '

The census taker for Washington Township ^(Southwest District) in April 1970, found the north house'unóccu-pied. On calling at the South house, the census taker was told by the plaintiff Leora B. Baucher, that the children slept in the north house and that the plaintiffs owned the north house.

The house on the south side of the road in the Southwest District (hereinafter referred to as the south house) was a gift to the plaintiffs from the mother of the plaintiff, Leora B. Baucher, in September 1971, situated on fifty acres of land adjoining thirty acres of land owned by the plaintiffs. It is located a short distance of approximately one hundred yards or more east of the north house. It consists of six rooms and has three freezers, two refrigerators and laundry equipment.

The mother of the plaintiff, Leora B. Baucher, a semi-invalid of seventy-four years of age, lives permanently in the south house. The plaintiff Leora B. Baucher spends each day in the south house caring for her mother and in preparing for and serving the evening meal for her husband, the plaintiff Morris Baucher, her mother and ten of the eleven children. The oldest, Rebecca, is attending college at Taylor University in Indiana but stays at the south house when she is not in school. The oldest son, Stephen, attends Wright State University in Celina, Ohio, but lie stays with his maternal grandmother each night in the south house. When he cannot, the plaintiff Leora B. Baucher stays with her. All of the children in school eat their lunches at school.- The lunches for the remainder of the family are prepared and served in the south house.

The plaintiff Leora B. Baucher voted in Recovery Township of Mercer County (Southwest District) in 1967, 1968 and 1969. In the census taken in April 1970, the plaintiff parents and all the children were listed as residents of Recovery Township (Southwest District). This information was furnished to the census taker not by the plaintiffs, but by the eldest child, Rebecca Baucher.

It is the actual residency of the parents of school children which determines where their children may attend school without payment of tuition.

“The parent of a child attending school in a local school district who is physically present and living in a residence located within such district during significant parts of each day and for important purposes consistent with residence, is ‘an actual resident’ of such district within the meaning of R. C. 3313.64, and is not liable for the payment of tuition merely because he may have another residence outside the school district.” Syllabus 2, Board of Education v. Dille, 109 Ohio App. 344.

“By virtue of the provisions of ft. C. 3313.64, the actual residence of the parent or guardian of a child determines which school district is responsible for the education of such child. The place where such child actually lives is not controlling. ” Syllabus 1, Adams v. Funk, 19 Ohio App. 2d 177.

“It is customary to distinguish between ‘residence’ and ‘domicil,’ on the ground that any place of abode or dwelling place constitutes a ‘residence,’ however temporary it may be, while the term ‘domicil’ relates rather to the legal residence of a person, or his home in contemplation of law. ‘Domicil’ is not, in a legal or technical sense, synonymous with ‘residence.’ The term ‘domicil’ is of more extensive signification, the word ‘residence’ commonly importing something less than domicil. The essential distinction is that the word ‘residence’ involves the intent to leave when the purpose for which one has taken up his abode ceases; the term ‘domicil’ involves no such intent. Domicil includes residence, with an intention to remain, while no length of residence, without the intention of remaining, constitutes domicil.

“In determining whether a person is a resident of a particular state, the question as to his domicil is not necessarily always involved, for he may have a residence which is not in law his domicil. A person may have more than one residence at the same time, but he can have but one domicil. Domicil may be in one place and residence •for the time being in another.” 18 Ohio Jurisprudence 2d, Domicil, Section 6, pages 163 and 164.

“Residence, in the ordinary meaning of the term, is the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink and sleep.

“If a man’s place of residence is not where he eats,drinks, and sleeps with his family, we think it must he said that the place where he then abides is not his legal residence, but his abode for the time being, and his residence must be said to be where his servants eat, drink, and sleep, or where his family eats, drinks and sleeps.” Millis v. Millis, 17 Ohio N. P. (n. s.) at page 261.

“The act or fact of abiding or dwelling in a place for some time: an act of making one’s home in a place: the act or fact of living or regularly staying at or in some place either in or as a qualification for the discharge of a duty or the enjoyment of a benefit.” Webster’s Third International Dictionary: definition of the word “residence.”

To recapitulate: both the plaintiff parents, and all of the children, with the exception of the two oldest, sleep in the north house and eat breakfast there. The children attending school are picked up most of the time from the north house. Although listed on the tax duplicate as unoccupied from 1961 to 1971, the north house is now listed as occupied. Whenever the plaintiff Morris Baucher voted within the last five years, he voted in Washington Township (Coldwater District).. Both plaintiffs testified that they intend to make the north house their permanent home and that there are immediate plans for its improvement with some of the materials purchased.

■ Both the plaintiff parents and all of the children, with the exception of the oldest child, eat their evening meal at the south house. Also, the lunches of the pre-school children and both the plaintiff parents are prepared and served at the south house where all the family food is stored. All of the family laundry is done at the south house. The plaintiff Leora B. Baucher voted in Recovery Township (Southwest District) three times in the last four years.

In the April 1970, census the plaintiffs and all of the children were listed as residents of Recovery Township (Southwest District).

Putting aside for the nonce the legal meaning of domicile and residence, in the instant case the north and south houses are operated as a family unit. The north house serves as the family sleeping quarters or a dormitory. The south house serves as the place where the main meals are prepared and eaten and the place where the family laundry is done. It would be impossible for the plaintiffs’ family to live under present conditions without using both the north house and the south house. Together, they constitute the home or dwelling place of the plaintiffs’ family.

Keeping in mind the varied definitions of the term residence, it is the finding of the court that the plaintiffs have their domicile and are actual residents of the Cold-water District and are also actual residents of the Southwest District. Based on such finding, the children of the plaintiffs are eligible to enroll and attend the schools of either district without the payment of tuition.

“Perhaps one of the reasons for the variety of definitions of residence is that the term is applied for many different purposes. It has been appropriately stated that:

“ ‘As in construing other statutes, in the construction of legislation using the term “residence” the courts look primarily to the legislative purpose as well as the context.’ 17A American Jurisprudence, 201, Domicile, Section 9.

“School attendance is mandatory in Ohio, and there is a corresponding powerful public policy that free attendance at an appropriate public school shall be available to every child of school age. Such is the primary purpose of R. C. 3313.64. That statute must, therefore, be liberally construed to the accomplishment of its intended purpose.” Board of Education v. Dille, 109 Ohio App. 349.

■ In light of such finding, the temporary orders issued on September 22, 1971, are superseded and the tuition paid to date by the plaintiffs under such order in lieu of bond shall be refunded to the plaintiffs by the defendant.

Judgment for plaintiff.  