a reasonable distance to travel to school. Something depends upon the con-
ditions of the highways.
It is impossible to establish schools equally convenient to all homes. How-
ever, there is a limit beyond which it should be considered unfair to expect
children to walk to school. The customary size of a subdistrict and also of a
rural independent district embraces four sections of land arranged to form a
square and when a suitable site can be secured and roads are properly laid
out on section lines, the school is generally located at the center of the dis-
trict or the subdistrict. The greatest distance any child would possibly be com-
pelled to travel under the customary conditions would be two miles.
Reference is made to the foregoing citations in the law relating to attend-
ance of children at school and to the usual form and size of rural district
and subdistricts and the location of the schoolhouse therein for the purpose of
establishing conclusions that would be fair to the children and also to the
district concerning a reasonable distance for children to travel to school with
out expense to the district. We can arrive at no other conclusion than that
it must be considered too far to expect small children to walk, who live at
a greater distance than two miles from school, even in favorable weather and
where roads are reasonably passable and good. Our judgment also leads us
to confirm the above conclusion.
However, the inference should not be made that every family having small
children to send to school, that lives more than two miles from school, is
entitled to transportation at an expense that would be incurred by the district
furnishing a regular means of conveyance for this purpose such as the law
necessitates in consolidated independent districts organized under Section
2794-a et seq. and with the requirements concerning transportation in such
In conclusion, we are of the opinion that the action of the school board of
Pilot township was fair, liberal, and in accordance with law in offering Mr.
Shea $10.00 per month to transport his children to school. We think it would
have been within the law for the board to have granted Mr. Shea the privilege
of sending and transporting his children to any public school, not including
the high school department, provided he chose to pay the tuition charged,
himself, if he selected a public school outside the school corporation of his
We find no abuse of discretionary power vested in the board and we think
the board has endeavored to deal justly with Mr. Shea in offering him the
sum of $10.00 per month to transport his children to school. We believe the
county superintendent was justified in sustaining the school board and his
decision is therefore Affirmed.
A. M. DEYOE,
Superintendent of Public Instruction.
Des Moines, Iowa, June 5, 1915.
136 SCHOOL LAWS OF IOWA
Thomas D. Hatton v. The Independent School District of Des Moines, Iowa.
Appeal from Polk County.
Legal Residence. From decisions of the court we conclude that the legal
residence of a minor is the same as that of his parents unless the parents by
proper legal process relinquish their rights to the control of said minor.
Actual Residence. It is not an easy matter to determine the actual residence
of a minor different from that of his natural parents or guardian. The intent
must be taken into consideration. The power to determine the actual residence
of a minor claiming school privileges is vested in the school board.
The plaintiff in this case is a youth about eighteen years of age. His parents
have lived at Dakota City, Humboldt county, Iowa, for the past five or six
years. Section 2804 of the Code provides that "persons between five and twenty-
one years of age shall be of school age."
There are only two years of high school work, including the ninth and tenth
grades, conducted in the Dakota City public school. During the school year of
1913-1914, Thomas D. Hatton, plaintiff, attended the Humboldt high school
where he completed the eleventh grade. His tuition in the Humboldt high
school to the amount of $3.50 per month was paid by his home district. The
Independent District of Dakota City. The balance charged, to the amount of
fifty cents per month, was paid by Thomas, himself.
About February, 1914, arrangements are claimed to have been made between
the Hatton family and Mr. and Mrs. J. C. Hume of Des Moines, whereby the
said Mr. and Mrs. Hume agreed that Thomas should come to Des Moines to
live with them as a member of their family. The understanding being that
Thomas should complete the twelfth grade in the West Des Moines High School
and later attend Drake University. It was decided, however, that it would not
be best to break into the school year at Humboldt and that his coming to
Des Moines should be deferred to some date prior to the opening of school in
September, for the year 1914-1915. Thomas came to Des Moines about August
20, 1914, and entered West Des Moines High School.
The question of tuition was raised by the principal of the high school and
Thomas was referred to the secretary of the school board, Mr. A. L. Clinite,
to make arrangements regarding the matter. Plaintiff was informed by Mr.
Clinite that the usual method of collecting tuition from non-resident pupils
would be followed.
On September 22, 1914, and also on November 4, 1914, letters concerning
plaintiff's enrollment and tuition in West Des Moines High School were sent
to the Secretary of the Independent District of Dakota City by the Secretary of
the Independent District of Des Moines. No reply to these letters was re-
ceived. In January notice of amount of tuition claimed due was sent to John
Hatton, the father of the plaintiff. To this notice the following reply was re-
Mr. A. L. Clinite, Sec, Des Moines, Iowa.
Dear Sir: I know nothing about the enclosed nor have I anything to do
with it. One of the school directors here said you ought to know enough to
drav/ on the Humboldt County Treasurer for it if it was due from the district.
If not due from the district present this to J. C. Hume, 2007 Grand Ave.,
Des Moines. Yours truly,
(Signed) J. W. HATTON.
SCHOOL LAWS OF IOWA 137
Following the receipt of the letter from Mr. Hatton considerable correspond-
ence passed between Mr. Clinite, Secretary, and Mr. J. C. Hume. Mr. Hume
was notified that the tuition claimed had not been adjusted, and that the
tuition must be paid or attendance of plaintiff discontinued. It appears that
Mr. Hume explained in his letters addressed to the school board concern-
ing a relationship and responsibility which he claimed had been established
between himself and plaintiff. At a meeting of the board of directors of
the Independent School District of Des Moines, held on the fifteenth day
of March, 1914, the secretary was instructed by a unanimous vote of the board
to "insist that the tuition for Thos. Hatton be paid either by his district or
some one else."
On March 17, 1914, Mr. Hume sent his check for seven months' tuition in
full, amounting to $50.75, enclosing with same a letter addressed to the Inde-
pendent District of Des Moines protesting its payment and claiming "that the
exaction of this money by you is illegal."
Appeal was taken to the county superintendent. The decision of the county
superintendent briefly states that, "It is hereby determined that Thomas D.
Hatton is not a bona fide resident of the city of Des Moines, Polk county,
Iowa, and that therefore, the decision of the board of directors of the Inde-
pendent School District of the City of Des Moines in demanding payment of
tuition on behalf of said Thomas D. Hatton for tuition in the West Des Moines
High School is affirmed."
Section 2773 of the statute provides that "Every school shall be free of
tuition to all actual residents between the ages of five and twenty-one years."
The question to be determined is, had Thomas D. Hatton acquired an actual
residence within the meaning of this section in the Independent District of
Des Moines when he entered West Des Moines High School as a pupil in the
twelfth grade? Was he a bona fide resident of Des Moines and entitled to
free public school privileges in said high school as contended by Mr. Hume?
Several matters are clearly set forth in an opinion by Hon. John F. Riggs,
Superintendent of Public Instruction in the case of R. L. Todd v. The Inde-
pendent District of Ida Grove, from which the following extended citation is
"The legal residence or domicile of minors has been clearly defined but not
the actual residence. In the case of Jenkins v. Clark, 71 Iowa, 552, the Supreme
Court holds that the domicile of the child is to be determined by the domicile
of the parent, and that even after the death of both parents the domicile of
the child remains where the parents last held legal residence even though the
child be now living in another state. It is reasonable to conclude that in such
a contingency the actual residence and the legal residence of the child might
be totally different.
"It has been the uniform ruling of this department that it is only where the
actual residence of the child is clearly established that free public school
privileges may be obtained. It follows that a child residing in one district,
but visiting or temporarily sojourning in another district is not an actual
resident of such district within the meaning of the statute. Likewise a child
sent to a district other than that of the residence of the parent or guardian
for the purpose of attending school is not an actual resident of such district
within the meaning of the statute. But where the residence of the child in
the district is in no sense temporary, where as in the case under review, it
138 SCHOOL LAWS OF IOWA
has extended through a number of years, and parental control over the child
has been relinquished, and where it is further shown that the child's residence
in the district is determined by other considerations than the securing of
school privileges, and there is no intent that the child is to return subse-
quently to the parental home, we are of the opinion that within the meaning
of the statute the child becomes an actual resident and is entitled to the same
school privileges as are enjoyed by other children of the district."
From decisions of the courts, we conclude that the legal residence of a
minor is the same as that of liis parents, unless the parents by proper legal
process relinquish their rights to the control of said minor. There appears
to have been no action taken by Mr. and Mrs. Hatton to emancipate their son,
Thomas. Neither have Mr. and Mrs. Hume adopted Thomas nor have they
been appointed as his guardians. Had either of the above steps been taken,
it would have been an easy matter to determine the actual residence of
Thomas D. Hatton.
Now, what was the purpose of Thomas in coming to Des Moines to live
with Mr. and Mrs. Hume? He just came to live with them in order that he
might secure the benefit of a better education than his parents could afford
to give him. That seems to have been the motive in view. He came to secure
the advantages of the high school in West Des Moines for a year or until he
would graduate from the high school. Then the expectation was that he would
take a college course in one of the institutions located in Des Moines. The
arrangements as to the length of time he might remain in Des Moines seem
to have been very indefinite. He testified that he had no intention of returning
to the home of his parents, but that he might not remain in Des Moines long
if he did not like it. He might go to Omaha to live with a relative and attend
school there. It was agreed that Mr. and Mrs. Hume might terminate the
arrangements at any time they saw fit. If it is possible for a child to acquire
an actual residence or a bona fide residence under such circumstances, then
it would be very easy for any child to come to Des Moines and live with a
relative and avoid the payment of tuition. A district might in this manner
be compelled to carry the burden of educating the children of families living
in other districts. Wliile the matter of determining the actual residence of
a person of school age, each case must be decided upon its own merits, yet a
decision in an individual case might be far reaching in establishing a precedent.
It is not an easy matter to establish or determine the actual residence of a
minor different from that of his natural parents or guardian. Particularly is
this true when the intent to change actual residence occurs just prior to the
opening of school and it is known that the change is made for the purpose of
obtaining better public school advantages. The power to determine the actual
residence of a minor claiming school privileges is vested in the school board.
The school board is charged with looking after the interests of the school dis-
trict and only on positive evidence of actual residence should a district be held
responsible for the education of children. It is true that the interests of the
state are that public school privileges be made as free and easy for children
as possible. This privilege is guaranteed in every district in Iowa. If the
home district of a child does not offer an approved four-year high school
course, then the home district must pay the tuition of said child in another
district maintaining an approved high school for the number of years that the
home district fails to conduct an approved high school. (Section 2733-la, Sup-
SCHOOL LAWS OF IOWA 139
plemental Supplement of the Code, 1915.) It would be very easy for parents
to send their children to Des Moines to live with relatives for a period long
enough to secure the advantages of one to four years of high school, claiming
the intent of making it their home. We think there would be no doubt in case
the child had been away from home for some time making his own way, in
other words, away from home for other purposes as well as those of attend-
The determining fact in this case in our opinion is that Thomas D. Hatton
came to Des Moines for the purpose of attending school. We find no evidence
of any other intention. The fact that Mr. Hume is a tax-payer in Des Moines
is irrelevant. Were Mr. Hume a non-resident who paid taxes in the Des Moines
district, and desired to send his children to the Des Moines public schools, he
would be entitled to have the amount of his school taxes deducted from the
amount of tuition required to be paid. Section 2804.
We are not satisfied from the evidence submitted in this case that Thomas
D. Hatton has established his claim to actual residence in the Independent
School District of Des Moines.
The decision of the county superintendent is therefore Affirmed.
A. M. DEYOE,
Superintendent of Public Instruction.
Des Moines, Iowa, October 12, 1915.