
    State of Nebraska, ex rel. Eli Vale, v. School District of City of Superior et al.
    Filed June 9, 1898.
    No. 8127.
    1. Schools and School Districts: Non-Resident Fupils: Tuition. Non-resident pupils are not entitled, either under the provisions ol section 4, subdivision 5,-chapter 79, Compiled Statutes, or section 3, subdivision 6, of the same chapiter, to attend the public school without payment of tuition therefor.
    2. Residence. One’s residence is where he has his established home, and to which, when absent, he intends to return. To effect a change of domicile there must not only be a change of residence, but an intention to permanently abandon the former home. Berry v. Wilcox, 44 Neb. 82, and Wood v. Boeder, 45 Neb. 311, followed.
    3. --. Where one, who owns a farm which has been his domicile for many years, moves his family and a portion of his furniture to a neighboring- city during the fall, temporarily, for the purpose of educating- his children, and not with the intention of gaining a new home, and returns to the farm at the end of each school year with his family and furniture, his legal residence remains at the farm.
    4. Evidence: Census: Enumebation. Whether a person has been enumerated in the census taken by a school board, should be established by the production of the proper record disclosing- the facts.
    5. Review of Instructions: Exceptions. Instructions will not be reviewed where no exceptions were taken to them by the party complaining at the time the charg-e was given to the jury.
    6. —:-•: Repetitions. It is not error to refuse a proper instruction requested by a party to a ease, the principles of which have been covered by the charg-e of the court.
    Error from the district court of Nuckolls county. Tried below before Hastings, J.
    
      Affirmed.
    
    
      Oole & Brown and R. D. Sutherland, for plaintiff in error.
    
      Buch & McConnell and Stubbs & Maude, contra.
   Norval, J.

Eli Yale made application to the district court of Nuckolls county for a peremptory writ of mandamus to compel the school board of the school district of the city of Superior tó permit the children of relator to attend the public schools of said city without payment of tuition therefor. Issues of fact were joined, upon which a trial to the jury were determined adversely to the relator, and the action dismissed.

Section 4, subdivision 5, chapter 79, Compiled Statutes, relating to the admission by school boards of non-resident pupils to the public schools, declares that “said board may also admit to the district school non-resident pupils, and may determine the rates oí tuition of such pupils and collect the same in advance;” and section 3, subdivision 6, of the same chapter confers upon the district. board of any high school district the power “to determine the rates of tuition to be paid by non-resident pupils attending any school in said district.” If, therefore, as contended by respondent, relator’s children were non-residents of said school district, they were not entitled by law to attend the public schools without payment of tuition, and the writ was properly denied.

It is argued that the verdict is against the evidence. The controversy on the trial in the court below was whether or not plaintiff’s children were residents of the respondent" school district, and the evidence relating thereto was conflicting. That introduced by the respondents was to the effect that relator owned a farm in Kansas and had resided thereon with his family as a home for many years; that each fall, for two years prior to the bringing of this suit, he moved his family, and a portion of his household goods, to the city of Superior to permit his children to attend the public schools of that city, and at the close of the school year they moved back to their farm in Kansas, where they remained until the beginning of another school year; that while Mrs. Yale and the children were in Superior, relator spent the greater portion of his time on the Kansas farm; that he voted in that state after the removal of his family to Superior, and that the removal to said city was temporary merely, and not for the purpose of making the same the home of relator and his family. The evidence adduced by the relator tended to show that the removal to Superior was for the purpose of making that his permanent home, and that he exercised the rights of franchise by voting at the city election held in Superior in the spring of 1893. This court, in Berry v. Wilcox, 44 Neb. 82, defined residence to be the place where one has his established home, “the place where he is habitually present and to which when he departs he intends to return. The fact that he may at a future time intend to remove will not necessarily defeat his residence before he actually does remove. It is not necessary that he should have the intention of always remaining, but there must coexist the fact and the intention of making it his present abiding place, and there must be no intention of presently removing.” In Wood v. Roeder, 45 Neb. 311, it was decided that the word “residence” is synonymous with the term “domicile,” and the domicile of a person is the place where he has a fixed and permanent home, and to which, when absent, he has the intention of returning, and “to effect a change of domicile there must not only be a change of residence, but an intention to permanently abandon the former home. The mere residing at a different place, although evidence of a change, is, however long continued, per se insufficient.” With the foregoing definitions we are content; and applying them to the caise at bar, there is no room to doubt that the evidence before the jury was of such a character as to justify a finding that Mr. Yale was a bona fide resident of Kansas, although there is in the record other evidence from which the inference could have been drawn that his permanent residence was in the city of Superior. We are satisfied with and approve the finding of the jury on the question of residence of relator’s children. The case, as made by the respondents, is almost identical with that of Gardener v. Board of Education of the City of Fargo, 5 Dak. 259.

Relator attempted to show on the trial, by his own testimony, that some one in the employ of the school district, in the spring of 1894, enumerated his children as residents of said district, and the offered testimony, on objection, was excluded. The enumeration of persons of school age residing within the district is to be made annually, and reported to the county superintendent of public instruction. The evidence of relator, therefore, wes incompetent to show the enumeration of his children fur school purposes, since tbe record was tbe best evidence to establish tbe fact so sought to be elicited by tbe questions propounded to relator.

Complaint is made of tbe giving of tbe following portion of tbe court’s charge: “Tbe jury is instructed, under the law of tbe state, that tbe place shall be considered and held to be tbe residence of a person in which bis habitation is fixed, without any present intention of removing therefrom, and to which, whenever be is absent, be bias an intention of returning. A person shall not be considered and held to have acquired a legal residence in any county in this state into which be shall have come for temporary purposes merely, without tbe intention of making it bis residence.” This instruction is in accord with tbe decisions of this court already mentionetl. Moreover, tbe record fails to disclose that any exception was taken to this portion of tbe charge at tbe time the same was read to tbe jury, so if there was any error in its giving, -it is not available. (Roach v. Hawkinson, 34 Neb. 658; Levi v. Fred, 38 Neb. 564; Glaze v. Parcel, 40 Neb. 732; Bloedel v. Zimmerman, 41 Neb. 695; City of Omaha v. McGavock, 47 Neb. 13; Gravely v. State, 45 Neb. 878.)

Exception was properly taken to tbe following instruction, and it is now assigned as being erroneous: “5. By preponderance of proof is meant such proof as satisfies you that tbe claim of plaintiff as to tbe residence of bis family is true rather than the reverse, and if you should find that in your opinion, from tbe evidence given, tbe probabilities for and against tbe truth of plaintiff’s claim' are equally balanced, then you should find for defendant.” Under tbe issues presented by the pleadings in this case tbe burden was upon tbe plaintiff, or relator, to prove by a preponderance of tbe evidence that be was at tbe time tbe action was instituted a Iona fide resident of tbe school district of Superior. If be failed to so establish bis residence, or the evidence upon that question did not preponderate in favor of either party, relator was not entitled to recover. Tbe instruction quoted was a proper exposition of tbe law on the subject of tbe burden of proof, and tbe criticism on tbe instruction must be overruled.

Tbe court in tbe seventh instruction charged tbe jury as follows: “If, however, you find that plaintiff and bis family’s residence in Superior was only with tbe object of obtaining temporarily tbe advantages of schools, and with tbe intention of returning or going to some other definite place as soon as such purpose should be accomplished, then such purpose o.f Returning or going to some other definite place would, so long as it remained, prevent tbe acquiring of a residence in Superior.” This instruction is criticised. It stated to the jury tbe proper rule for their guidance. To obtain a legal residence or domicile in Superior at least two things were required of relator,, namely, an actual residence there and the intention to make it bis place of abode, and tbe abandonment of bis former home in Kansas. This view was submitted to the jury in tbe foregoing instruction and tbe other paragraphs of tbe court’s charge, and was applicable to certain phases of tbe evidence.

As to tbe instructions tendered by relator which were refused, all that need be said is that so far as they stated correct principles of law they were completely covered by tbe instructions given by tbe court on its own motion. It is well settled that it is not reversible error to refuse a proper instruction where tbe principle sought to be effected by its giving' has been clearly and fully covered by the charge of tbe court. (Korth v. State, 46 Neb. 631.) No substantial error appearing from tbe record, tbe judgment is

AFFIRMED.  