State ex rel. Smith vs. Board of Education of the City of Eau Claire. not been suspended, expelled, or dismissed from said school, or from any public school in the city of Eau Claire. The said principal of the school made answer and return to the effect that Olson had not been by her expelled, suspended, or dismissed, or otherwise excluded from the Eighth Ward school in the city, or from any school in the city, and that she had no right, power, or authority to readmit to any school in the city any pupil who may have been suspended, dismissed, or expelled therefrom, and that all the right, power, or authority which she had exercised with regard to the attendance at school was delegated to her by the board; that said Olson had tendered a tuition fee, and demanded a receipt therefor, but that she refused to give the receipt or take the money. The said teacher of the school made answer and return to the effect that she had no knowledge or information sufficient to form a belief, as to what relationship and what contracts might exist between Olson, his parents, and the plaintiff. Upon the stipulation of the parties, all the issues of fact raised by the return of the board were ordered to be heard and determined by a jury. Thereupon the court ordered two questions to be submitted to the jury, to the effect First, as to whether Olson, during the time mentioned, was a legal resident of the city for school purposes, and as such entitled to attend the public schools free of charge and without paying tuition therefor; and, secondly, as to whether Olson was illegally expelled from the Eighth Ward school in the city March 30, 1894. At the close of the trial the jury returned a verdict to the effect that they found that Olson was entitled to attend the public schools of the city free of charge. But the jury entirely failed to answer the second question submitted,- as to whether Olson had been illegally expelled, or expelled at all. The judgment of the circuit court, signed by the presiding judge, recites that the court had found from the undisputed evidence that Olson VOL. 96-7 State ex rel. Smith vs. Board of Education of the City of Eau Claire. was illegally expelled from the public schools of the city March 30, 1894, and accordingly granted the peremptory writ of mandamus. From that judgment the board of education brings this appeal. 1. The real issue for determination was whether Olson was illegally expelled from school, and yet that question was taken from the jury in the manner indicated, and on the ground that the undisputed evidence showed that he was so illegally expelled. That question really included the question which was submitted to the jury under sec. 3452, S. & B. Ann. Stats., as to whether Olson had a legal residence in the city, such as entitled him to attend the public schools. After a careful examination of the evidence, we are convinced that it is insufficient to sustain a finding that he was ever expelled at all,- much less that he was illegally expelled. Olson testified to the effect that he was turned out of school by a teacher in the spring of 1893, and then, after remaining out of school for three or four days, he "commenced to go to school again, and continued until about a year after;" that is to say, until March 30, 1894, when it is found that he was expelled again. The strongest evidence in that direction is that on the morning of the day and year last mentioned his teacher sent him home, with a note from her to the plaintiff to the effect that she was obliged to send him home, as he had not presented his receipt; that, if the plaintiff intended to pay his tuition on that day, to let her know, and he would be allowed to come back on the afternoon of the same day. He further testified to the effect that he took that note from his teacher to the plaintiff at the forenoon recess; that, upon delivering such note to the plaintiff, he turned around and went back to the school, and got there before 12 o'clock; and that he continued to attend school from that time until the end of the term that summer. It is hardly necessary to say that neither the teacher nor the principal of the school had any State ex rel. Smith vs. Board of Education of the City of Eau Claire. power to expel Olson. That power was vested in the school board, exclusively. Sec. 439, R. S.; State ex rel. Burpee v. Burton, 45 Wis. 150; State ex rel. Bowe v. Board of Educa tion, 63 Wis. 234. There is no evidence that the board did anything towards expelling Olson. The plaintiff testified to the effect that, upon receiving from Olson the note so sent by his teacher, he went and paid the tuition, $12, under protest. Assuming that such tuition was wrongfully exacted and wrongfully received, and that the plaintiff has a legal remedy therefor, yet it is very certain that such facts furnish no ground for sustaining this judgment. The anomaly about this judgment consists in the fact that it compels the board and the principal and the teacher to do what they had already voluntarily done. The judgment seems to go upon the theory that if the tuition fee was wrongfully exacted and received upon being paid under protest, then it was equivalent to and conclusive evidence that Olson had been expelled from school. We do not understand such to be the law. 2. The court charged the jury "that if the evidence satisfies you that the boy came to Eau Claire to reside permanently with his uncle, who was to clothe him, give him a home, and who had control of him, and the benefit of the public schools was not the sole and only purpose, then it is that you should find the issue presented in favor of the relator." Under this charge the jury were bound to find that Olson had the right to attend the public school without paying any tuition, unless they found that his presence in the city was for the sole and only purpose of attending the public school. This we think was error. The constitution provides that district "schools shall be free and without charge for tuition, to all children between the ages of four and twenty years." Sec. 3, art. X. This court has held "that when the legislature has provided for each such child the privileges of a district school, which he or she may Clausen vs. Hale. freely enjoy, the constitutional requirement in that behalf is complied with. This the legislature has done." State ex rel. Comstock v. Joint School District, 65 Wis. 636, 637. So this court has held, in effect, that where a child of school age is sent or goes into a certain school district with the primary purpose of securing a home with a particular family, then he is entitled to the benefits of the public school of such district free of charge. State ex rel. School Dist. No. 1 v. Thayer, 74 Wis. 48, 59. But, if the primary purpose of the locating in such district is to participate in the advantages which the public schools therein afford, then he must pay tuition, even though there be some other incidental purpose to be subserved while so attending school therein. Id. By the Court. The judgment of the circuit court is reversed, and the cause is remanded for a new trial. CLAUSEN, Appellant, vs. HALE, Assignee, Respondent. April 7-April 30, 1897. Appeal: Preponderance of evidence. Findings of the trial court cannot be disturbed unless they are clearly against the preponderance of the evidence. APPEAL from an order of the circuit court for Kenosha county: FRANK M. FISH, Circuit Judge. Affirmed. This is a claim against an insolvent estate. For many years prior to August 26, 1895, Dan Head & Co., a banking corporation organized under the laws of this state, carried on a general banking business at Kenosha, one Urban J. Lewis being the cashier of said bank. On said 26th day of August the said bank made a voluntary assignment of all its property, for the benefit of its creditors, to defendant, Hale, Clausen vs. Hale. who qualified and entered upon the duties of his trust. Within the proper time the claimant, Clausen, filed his claim with the assignee against said estate, in the sum of $1,000, for money loaned. The assignee filed objections to said claim; claiming, in effect, that the $1,000 alleged to have been loaned by Clausen to the bank was in fact loaned to Urban J. Lewis personally, and not to the bank. The action was tried by the court. Prior to the trial of the action the cashier, Lewis, died, and his testimony was consequently never taken. From the evidence upon the trial it appeared that for some time prior to August 8, 1894, Clausen had more than $1,100 on deposit upon open account in said bank, but upon said 8th day of August, 1894, he signed and delivered to Lewis a check, prepared by the latter at the counter of the bank, for $1,000, in words and figures as follows: "Dan Head & Co., Bankers: "Pay to the order of "Loan..... "One Thousand "Kenosha, Wis., 8-8, 1894. No. 60 .$1.000.00 ...Dollars. "JOHN CLAUSEN.” Mr. Lewis being dead, no testimony was permitted as to the conversation which the claimant then had with him at the time of the giving of the check. Lewis, the cashier, also wrote upon the stub of the check the following words and figures: "No. 60. Order Loan The claimant took no other evidence of indebtedness. Upon the books of the bank, and upon the bank book of the claimant, this check for $1,000 was charged against the claimant. Upon the 1st day of February, 1895, the claimant was credited upon his bank book, "Int. to Feb. 1st, 1895, $30.00." Upon July 1, 1895, he was also credited, “Int., Feb. to July 1st, 1895, $25.00." On the 2d day of Septem |