dissenting.
In the short time at my disposal and before the majority opinion becomes the law of this case, I have prepared and now record my dissent. The trustees, I think, have authority to fix a higher tuition rate for nonresident students than required of resident students for the same course of study. In my opinion, they do not have authority to fix a different rate for resident students.
The record indicates that all students are required to register and pay tuition in advance at the beginning of each school *643year. If a nonresident student becomes a resident of North Carolina during a school term, in my opinion, thereafter he is entitled to register and pay tuition according to his actual residential status. Any other rule would be discriminatory and the denial of equal protection of the laws.
In order to prevent false claims of change in residence, the trustees require that when a nonresident student registers1 he continues to be a nonresident continually thereafter so long as he remains a student. He cannot raise the question of his actual residence until he quits school for at least six months and then re-enters. Hence the rule for all practical purposes raises a conclusive, irrebuttable presumption that he has not changed in fact, but continues a nonresident. The trustees say any other rule would permit false claims. However, the purpose of the hearing is to determine the bona fides of a claim rather than conclusively to presume it to be false. That a rule may on occasion be violated is not just cause for abrogation. An occasional violation is not the test either of its validity or its wisdom. The fact that false claims may be filed is not ground to deny just ones.
In this case, Glusman and Lamb each registered as a nonresident and paid the required nonresident tuition fees. Before they completed their courses of study they alleged they became residents of North Carolina, registered, voted, and paid taxes as such.
At the beginning of the next school year, they sought to register as residents of North Carolina and to be admitted on the payment of tuition fees charged other residents. Their claims were denied on the ground the first registration froze their status and they could not thereafter raise the question of their actual residence. At registration they were required to pay non-residence fees approximately four times the amount charged other residents of the State. They filed claims for refund which the committee of the trustees denied; thereupon, they filed this action in the Superior Court of Wake County for review of the administrative decision denying their claims.
After hearing in the Superior Court, Judge Braswell entered judgment of which the following is a part:
“2. That the tuition regulations of November 10, 1967, do establish an irrebuttable presumption of nonresidence *644for all students twenty-one years of age or over who first enroll as a nonresident. Each petitioner is over twenty-one years of age. Each petitioner first enrolled as a nonresident.
“3. The Board of Trustees of the University of North Carolina may not establish an irrebuttable presumption of nonresidence upon the basis that a student once enrolled as a nonresident, paying nonresident tuition fees, cannot thereafter become a bona fide resident, short of dropping out of enrollment in an institution of higher education in North Carolina for at least six months before re-enrollment as a student. This irrebuttable presumption denies each petitioner the equal protection of the law. The petitioners should have the opportunity to present their facts before the Residence Status Committee of the University.
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“5. There is no rational or reasonable basis on which an individual who has been a bona fide resident of and domiciled in the State of North Carolina for the initial time period required by law, why he should be denied the right to prove the fact of bona fide domiciled resident simply because he was in attendance of an institution of higher education in this State.
“Now, Therefore, it is Ordered, Adjudged and Decreed, that the tuition regulations which provide that the residence status of any student is forever to be determined as of the time of his first enrollment in an institution of higher education in North Carolina, and that residence status may not thereafter be changed if he continues re-enrollment without first having dropped out of school for at least a six-months’ period, is declared unconstitutional.”
Judge Braswell ordered the case remanded to the proper committee of the trustees for determination of the citizenship status of the students at the time they registered and paid the fees now involved in this proceeding.
Judge Braswell refused to recognize the validity of the trustees’ claims that a student’s residential status is fixed for all years following his registration unless he quits school and remains absent for at least six months. For all intents and purposes the rule creates a conclusive, irrebuttable presumption against any change of residential status.
*645The foregoing is contrary to our rule which is succinctly stated by a great lawyer who graced this Court during the present generation. In Trust Company v. Andrews, 264 N.C. 531, 142 S.E. 2d 182, Justice William B. Rodman, Jr. stated the rule: “The power to create a presumption cannot be made a device to short-circuit constitutional prohibitions.” A student, or any other person who becomes of age, has a right to change his residence. The denial of this right, or its lawful exercise, is a denial of a constitutional guarantee. Newman v. Graham, 349 P. 2d 716; Carrington v. Rash, 380 U.S. 89, 13 L.Ed. 2d 675.
The motif of the Court’s opinion In this case is political rather than judicial and denies to the claimants the right to be heard on the bona fides of their claims.
I vote to affirm the judgment of the Superior Court.