#### ROCKWELL, Respondent, v. INDEPENDENT SCHOOL DISTRICT et al, Appellants.

(202 N. W. 478.)

(File No. 5855.

Opinion filed February 27, 1925.)

1. Schools and School Districts — Indian Lands — Residence on Indian Lands Held Not of Itself to Entitle to Admission to High School, Under Statute.

Residence of parents, in employ of federal government on Indian school lands, held not of itself to constitute them residents of state or school district so as to entitled children to”' admission to high schools, under Rev. Code 1919, Sec. 7517, as amended by Laws 1921, c. 214.

2. Schools and School Districts — Indian Lands — Residents on Indian School Lands in Federal Employ, Held Not to Lose Former Residence Thereby, or Acquire New.

Residents on Indian school lands, in federal employ, held not to lose their former residence thereby, or acquire new.

3. School and School Districts — Mandamus—Judgment in Mandamus Proceedings Requiring- Admission to High School Not Sustained by Record.

Judgment in mandamus proceedings, requiring admission to high school of daughter of federal government employees, residing on Indian school lands within state; was not sustained, in absence of showing that they had been residents of state before moving to Indian lands, and had not lost such residence.

Appeal from Circuit Court, Pennington 'County; Hon. Walter G. Misc., Judge.

Mandamus proceedings by Mary Elda Rockwell, an infant, by Marshall J. Rockwell, her guardian ad litem, against the Independent School District of Rapid City and another to compel her admission to Rapid City High School. From a judgment for plaintiff defendants appeal.

Reversed and remanded,

*Schrader & Lewis;*of Rapid City for Appellants.

*H. P. Pellozv\Sj*of Rapid City, for Respondent.

*138Appellants cited: Store)? Constitutional Law, Sec. 1227; Commonwealth v. 'Clary, 8 Mass. 72; Mitchell v. Tibbitts, 17 Pick. (Mass.) 298; Sinks v. Reese, 19 Ohio State 306; Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264; Sharron v. Hill, 24 Fed. 726; McMhhon v. Polk, 10 -S. Dak. 296; School Dist. No. 20 v. Steele, 115 N. W. 448; Lehew v. Brummel, 103 Mo. 546. 23 A. S. R. 8954 Wood v. Flock, 48 Cal. 36; 6 R. C. L. Sec. 276: 'State v. Burkhart, (S. D-.) 183 NI W. 870; Emgstadt v. Grand Forks Co., (N. D.) 84 N. W. 577; State v. Fackhard, 35 N. D. 298; Cooley Const. Lim. 7th E¡d. 119; 12 C. J. 730, 733, 7394 Atchison R. R. Co. v. Denver, no U. S. 667, 28 L. ed. 291; 85' Pac. 744; State v. Helena, 24 Mont. 67.

Respondent cited: Note, 36 L. R. A. (N. S.) 341; R. R. Co. v. McGlinn, 114 U. S. 542; Yale v. School District, 59 Conn. 489, 13 L. R. A. 161.

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.

[1] 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 superin*139tendent, 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.

[2] 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.

[3] 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 *140their previous residence within this state, the record does not contain sufficient facts to sustain the judgment.

Note. — Reported in 202 N. W. 478. See, Headnotes (1), (2) and (3), American Key-Numbered Digest, Schools and school districts, Key-No. 153, 35 Cyc. 1113 (1926 Anno.).

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.