Summary
indicating the purpose of a residency requirement for county commissioners “was to disqualify those who were not familiar with the needs of the particular section of the county”
Summary of this case from Iowa Farm Bureau Fed'n v. Envtl. Prot. Comm'nOpinion
No. 7,960.
Submitted November 7, 1939.
Decided December 6, 1939.
Elections — Office of County Commissioner — Contest — Limitation of Time Within Which to Bring Contest — Provision in Corrupt Practices Act Inapplicable — Who may Bring Proceeding — Quo Warranto not Proper Remedy — Residence in Commissioner District — Meaning of Constitutional Provision — Lack of Residence for Sufficient Length of Time. Elections — Limitation Prescribed by Corrupt Practices Act for Bringing Contest Inapplicable to Ordinary Election Contest. 1. Held, that section 10805, Revised Codes (a part of the Corrupt Practices Act) which prescribes a limitation of forty days within which an election may be contested for commission of an offense under the Act, has no application to an election contest involving the office of county commissioner based on the ground that the contestee had not resided in the commissioner district for two years prior to becoming a candidate, the word "offense" as used in the Act being synonymous with crime, and no element of crime being involved in such a contest. Same — Contest Over Office of County Commissioner — Who Qualified to Institute Contest. 2. Under section 10810, Revised Codes, one who had been a resident of a county for twenty-five years, registered as a qualified elector in a certain precinct, in a county commissioner district, and who voted in such precinct, was qualified to bring an action contesting the right of a commissioner elected in such district to hold the office to which he was elected, on the ground that he had not been a resident in the district for two years prior to the time he became a candidate for the office. (Sec. 4, Art. XVI, Constitution.) Same — Contesting Office of County Commissioner — Quo Warranto not Proper Proceeding. 3. Where an election contest involving the office of county commissioner was commenced before the contestee had assumed office, he may not be said to have usurped, intruded into, unlawfully held or exercised the office, within the meaning of section 9576, Revised Codes, prescribing when quo warranto may be brought, and the action based on the ground that the contestee was ineligible was properly brought under section 10810, supra. Same — Residence of Commissioner in District for Two Years — Constitution — Meaning of "Reside." 4. The word "reside" as used in section 4, Article XVI, Constitution, in declaring that no one shall be elected as a member of the board of county commissioners who has not resided in the particular commissioner district for at least two years preceding the time when he shall become a candidate for such office, signifies the place where the candidate has actually lived and maintained his home and where he was personally present. Same — What Insufficient to Establish One's Residence at a Particular Place. 5. One's mere intention to locate at a particular place does not become effective to establish his residence there until he is physically present at such place; the residence at the place chosen must be actual, i.e., the intention must be combined with the Act. Same — Case at Bar — Residence of County Commissioner in Commissioner District — Disqualification of Commissioner Because not Resident in District for Length of Time Prescribed by Constitution. 6. Where a candidate for the office of county commissioner for more than two years prior to becoming such indicated his intention to locate at a place within the commissioner district where he was ultimately elected, but took no active step looking to that end until five days short of the two-year period prior to his election, he was not qualified to become a candidate for the office, and his election was void. (Sec. 4, Art. XVI, Constitution.)
Appeal from District Court, Jefferson County; Henry G. Rodgers, Judge.
Mr. Philip Duncan, Mr. H.L. Maury and Mr. A.G. Shone, for Appellant, submitted a brief; Mr. Maury argued the cause orally.
Mr. S.C. Ford and Mr. Sam D. Goza, Jr., for Respondent, submitted a brief; Mr. Ford argued the cause orally.
The election of W.F. Boulware as county commissioner for commissioner district No. 2 of Jefferson county is contested in this action by Charles A. Snyder on the ground that Boulware had not, at the time he became a candidate, been a resident of the district for two years just prior to becoming a candidate as required by subdivision 5 of section 4, Article XVI of the Constitution. Boulware's qualification to hold the office is the only question involved, but the conclusion of that question involves the consideration of a number of others.
On June 18, 1938, Boulware, hereinafter referred to as the contestee, filed his petition as a candidate for the nomination. July 19, 1938, the primary election was held, and after the votes were canvassed the contestee was declared to be the nominee of his party, and thereafter his name was made to appear upon the official ballot at the general election November 8, 1938, and at such election he received the highest number of votes, was declared elected and received his certificate of election from the canvassing board of the county.
December 13, 1938, the contestant Snyder filed his petition in the fifth judicial district, contesting the election. The petition prays that the court find that the contestee was not duly elected and that the election be held void. An order was made directing the contestee to appear and plead to the petition. He appeared by motion to quash and by demurrer. Both the motion and the demurrer put in issue the sufficiency of the petition and the capacity of the contestant to prosecute the action. The motion was denied and the demurrer overruled.
The answer alleged that the contestant, not being a qualified elector of Jefferson county, was not competent to maintain the action, and denied that the contestee was not qualified to serve as commissioner of district No. 2. A separate defense, grounded on the statute of limitations, section 10805, Revised Codes, was set up.
The matter came on for hearing December 26, 1938. Contestee's objection to the introduction of any evidence on the ground that the petition did not state a cause of action was overruled. A number of witnesses was called and testified for both parties, and certain documentary evidence was received. The court took the matter under advisement and on December 30 made its findings of fact and conclusions of law, and made and entered its decree by which contestee's election was held void. It was further held that a vacancy would occur in the office of commissioner of district No. 2, Jefferson county, on the first Monday in January, 1939. Contestant was allowed attorney's fees of $150 and his costs. The matter comes here on appeal from the judgment.
Eight specifications of error are assigned, but in our opinion to determine whether the judgment of the trial court be affirmed or reversed, we have to determine three questions only: First, Was the action barred by section 10805, Revised Codes; second, Was contestant a proper party to bring the action; and, third, Was the contestee qualified on the point of residence in the district to hold the office?
First: It appears to be contestee's position that the action is barred by the provisions of section 10805, Revised Codes, for the reason that the contest was not begun within 40 days after the primary election. The pertinent part of section 10805 provides: "Any action to contest the right of any person declared elected to an office, or to annul and set aside such election, or to remove from or deprive any person of an office of which he is the incumbent, for any offense mentioned in this Act, must, unless a different time be stated, be commenced within forty days after the return day of the election at which such offense was committed, * * *."
We are of the opinion that this section does not apply here in [1] any particular, for the reason that the word "offense" as generally used in statutes, and as it is obviously used in section 10805, is synonymous with the word "crime" (see 4 Words Phrases, Fifth Series, Offense, page 328, secs. 11618 and 12302, Rev. Codes; and State ex rel. Marquette v. Police Court, 86 Mont. 297, 283 P. 430), and there is no element of crime involved in the action at bar, but merely the failure to show that contestee resided in district 2 for two years prior to becoming a candidate for the office.
Second: It is contended that contestant was not a qualified [2] elector in Jefferson county, and, therefore, could not bring this action. It is further contended that any action to have the contestee's election declared void should have been brought under the statutes relating to quo warranto.
The evidence shows that the contestant had been a resident of Jefferson county for 25 years; that he was registered as a qualified elector in precinct 4, which is in commissioner district 2, and that he voted in precinct 4 at the general election November 8, 1938, and the court's finding was in accord with such evidence. The contestant was, therefore, qualified to bring the action.
The law applicable is found in section 10810, Revised Codes, which provides in part: "Any elector of the state, or of any political or municipal division thereof, may contest the right of any person to any nomination or office for which such elector has the right to vote, * * *." In the following cases the contestant was merely an elector, the same as the contestant in the action at bar. Curry v. McCaffery, 47 Mont. 191, 131 P. 673; Mayer v. Sweeney, 22 Mont. 103, 55 P. 913; Dowty v. Pittwood, 23 Mont. 113, 57 P. 727. Contestant's qualification was not raised in any of those cases, but it was obviously conceded.
As to the question that the action should have been by quo [3] warranto: Quo warranto may be brought, "1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, * * *." (Sec. 9576, Rev. Codes; State ex rel. Casey v. Brewer, 107 Mont. 550, 88 P.2d 49.) Contestee had not assumed office, hence, he had not usurped, intruded into, unlawfully held or exercised any office. The action was properly brought under section 10810, supra.
Third: Had contestee resided in commissioner district 2 for two years immediately prior to the date that he became a candidate for the office? It is not necessary to determine in this case when the contestee became a candidate. Having determined that the contestee had not resided in district 2 for two years immediately prior to the election of November 8, 1938, when he became a candidate is immaterial.
Section 4, Article XVI of our state Constitution, in providing [4] for the election of county commissioners, provides: "That no one shall be elected as a member of said board, who has not resided in said district for at least two years next preceding the time when he shall become a candidate for said office." The word "reside" may have a different meaning according to the connection in which the word is used. (54 C.J. 702.) As used in section 4, Article XVI, the word signifies the place where the candidate has actually lived and maintained a home and where he was personally present. This follows from the purpose of the provision.
The object to be accomplished by that section was to disqualify those who were not familiar with the needs of the particular section of the county. To accomplish the purpose of the section, the word "resided" must be held to mean an actual living in the district. The trial court found that "between, on or about the 10th day of June, 1936, and the 14th day of November, 1936, the said W.F. Boulware resided in precinct No. 5 of Jefferson county, and that said precinct No. 5 was not and is not within the boundaries of commissioner district 2."
One's intention to locate at a particular place does not [5, 6] become effective to establish his residence there until he is physically present at such place. 17 American Jurisprudence, section 19, page 603, says in part: "To acquire a domicile of choice in a place, a person must be physically present there, and the residence at the place chosen must be actual." There is no claim that contestee actually lived in Whitehall before November 14, 1936. His claim is that he announced the intention of making Whitehall his residence as early as March, 1936, and took steps looking to the purchase of a home there at that time. If one leaves his place of residence with the intention of making his home in another place, he is, while in itinere from the old to the new, a resident of the place he had left, and remains so until he reaches the new abode. ( Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Rudolph v. Wetherington's Admr., 180 Ky. 271, 202 S.W. 652; Colorado v. Harbeck, 189 App. Div. 865, 179 N.Y. Supp. 510.)
The contestee's intention to locate in Whitehall as early as Saint Patrick's Day in March, 1935, is made quite clear. But under all the authorities, in order to abandon a residence and acquire a new one, the intention must be combined with the act, and there was no clear act on the part of the contestee to locate at Whitehall until November 14, 1936, which was five days short of a two-year period prior to his election. Not having resided in the district two years prior to his election, it necessarily follows that he had not resided there two years prior to becoming a candidate.
In addition to the contestee's own admissions on the witness stand, the testimony shows that the light meter in his residence at Corbin was not disconnected until November 14, 1936, and at that time the meterman testified contestee was loading his furniture with the obvious purpose of moving. And the testimony is also clear that he moved into the residence which he had purchased at Whitehall immediately after the tenant who had theretofore occupied the premises had moved out, and contestee paid his first monthly water bill for use in his residence at Whitehall for the month of December, 1936.
Under no possible construction of section 4, Article XVI, was contestee qualified at the time he became a candidate for the office. The question whether he became a candidate the moment he filed for the nomination or the moment that he received the nomination is not involved here, since he did not reside in district No. 2 until November 14, 1936.
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANGSTMAN, ARNOLD and ERICKSON concur.