State ex rel. Lowe v. Banta , 71 Mo. App. 32 ( 1897 )

Gill, J.

This is an original proceeding in quo ivarranto, instituted in this court, whereby it is sought to oust the defendant Banta from the office of alderman for the second ward of Westport, a city of the fourth class. Banta’s eligibility to the office is attacked on the alleged ground that at his election in April last he was not, and is not now, a resident or inhabitant of Westport, or of the ward he represents.

The qualifications for aldermen in cities of the fourth class are set out in sections 18 and 23, Laws 1895, pages 69 and 70; the first providing that “no person shall be an alderman unless he be at least twenty-one years of age, a citizen of the United States, and an inhabitant and resident of the city for one year next preceding his election, and a resident of the ward from which he is elected;” and said section 23 provides that “no person shall be elected or appointed to any office who shall at the time be in arrears for any unpaid city taxes, or forfeiture or defalcation in office, or who is not a resident of the city.”

On the part of the prosecution it is claimed, that a few months before the last spring election in Westport, Banta moved from said second ward and from said city to, and has ever since resided in, Kansas City. Defendant denies that he changed his legal residence, and alleges that he only took temporary quarters for the winter and spring at Kansas City, and that his permanent abode remained at Westport.

Without detailing the evidence submitted to us, we find the facts to be, in substance, as follows: Defendant Banta, a young man thirty-one years of age, has been practically reared at his father’s house in Westport. While residing with his father he, in late years, occupied a room which was furnished at the young man’s expense. He here made his permanent home, and during the last five years has served as alderman from the second ward, being elected, as already stated, the third time at the last city election. In June last Banta was married, but continued as before to occupy the room at his father’s (and which he had furnished), until in November, when he and his wife began the occupancy of a small four-room flat in Kansas City. . This was, however, for only a temporary purpose, since the evidence clearly shows that he then had in view the erection of a house on a lot he owned near his father’s, and which he intended as his future residence. He also retained the furnished room at his father’s, where some of his clothing was kept, and in which he and his wife lodged from one to three nights in every week. The uncontradicted evidence also shows that during the entire time Banta and his wife held the flat, he continuously claimed Westport as his. home and permanent residence; he received his mail from that postoffice; refused to list his personalty for taxation in Kansas City; attended every council meeting, performed committee work; and, in fact, devoted quite all his time to the attention of his matters, personal and official, at Westport.

Before going into the Kansas City flat, Banta consulted the city attorney of Westport, as well as another lawyer who had been mayor, telling them of the proposed occupancy of the flat, and that he only desired to use it for the winter and spring, and that he did not intend to change his residence, and they both advised him that such temporary occupancy would not affect his citizenship in Westport. In addition to all this the name of the defendant seems to have been presented to the authorities at Washington for appointment as postmaster at Westport, and the application, numerously signed, is now on file.

These and other matters detailed in the evidence satisfactorily prove that the» occupancy of the Kansas City flat was only temporary, and that Banta, all the time, considered Westport his permanent habitation and residence. Nor is there any evidence to the contrary, save and except the circumstance that the flat was taken under a written lease for a yeaiq But this is counteracted by Banta’s undisputed testimony that he had an understanding with the lessor that the flat was only taken for temporary use and might be surrendered at the close of the winter or spring.

In view, now, of these facts, we are clearly of the opinion that at the date of the defendant’s election, prior thereto and since, he was, and continued to be, an inhabitant and resident of the second ward of the city of Westport. Habitancy and residence, as used in the statute before quoted to define the qualification of aldermen for cities of the fourth class, have the same meaning, and both indicate the same degree of permanency and fixedness ás domicile. Through the efforts of the defendant’s industrious counsel, we have been cited to the interchangeable use of these terms as found in our state constitution and statute laws. For example, the governor, in addition to other qualifications, must be a “resident of this state seven years next before his election.” Sec. 5, art. 5, constitution. As to other executive officers, it is required by section 19, same article, that they “shall have resided in this state at least five years next before their election;” so with the judges, they shall be “residents,’’ “citizens,” “qualified voters and residents;” “all able bodied male inhabitants of this state (possessing, too, other qualifications) shall be subject to military duty.” Sec. 1, art. 13. Under the statute, section 6097, a justice of the peace must have been an inhabitant of this state twelvemonths, etc. The qualification of mayor for cities of the fourth class (to which Westport belongs) is that he shall be “a resident of the city at the time of and for at least one year next preceding his election.” Sec. 6, p. 67, Laws 1895. And in the same statute, as already quoted, the alderman must, as required by section 18, be an inhabitant and resident of the city for a year, and a resident of his ward; while by section 23, the general qualification of all elective or appointive officers, including aldermen, of the city, are required to be residents of the same.

DoffiqárquNaSu:fdent0a"sd in-' legislaHvTuse These instances sufficiently show that our lawmakers, in using the terms residents and inhabitants, when prescribing official qualifications, have treated such words as synonymous. And while “residence” is the favorite term use(i by legislators in prescribing the eligibility of public officials, the courts have used the more technical term of domicile; and in such cases have generally spoken of change of residence as a change of domicile. See State ex rel. Ramey v. Dayton, 77 Mo. 678; State v. Sanders, 106 Mo. 188; Chariton County v. Moberly, 59 Mo. 238, 242.

In State v. Sanders, supra, in treating the question of the eligibility of a speciál judge, the court says: ‘ Tt does not appear that when he ‘moved’ to Oregon his intentions Avere such as to change his residence from this state to that. A mere absence from this state, without an intention of making his residence elsewhere did not effect a change of residence. Scoville v. Glasner, 79 Mo. 449.” So, in the Dayton case above cited, the court, while speaking in reference to a case somewhat similar to this, uses the following language: “To give him (the St. Joseph alderman) a domicil in Kansas City, two things.must concur. It is not sufficient that he is there a greater portion of his time; his stay there must be with the intention of making it his home or domicile. Physical stay or residence in any particular place will not, of itself, constitute a domicile. The physical fact of staying must be accompanied with the mental determination of making a home or domicile in the place where the party stays or abides.”

Dchan¿e oitentfon.ce: in' In Hall v. Schoenecke, 128 Mo. 661, it is said that: “A temporary absence of a person from his usual residence, through a series of years, does not necessarily cause a loss of such residence. Whether a change was effected in any case depends upon the intention with which the removal from the former residence was made. McCrary on Elections [3 Ed.], sec. 62.” To same effect, see, also, Lankford v. Gebhart, 130 Mo. 621; Jacobs on Domicile, secs. 75, 182; 10 Am. and Eng. Ency. Law, p. 770, and notes.

Dfn3iiabSn”:S: dozen;resi “A person’s residence is the place of his domicile, or the place where his habitation is fixed without any present intention of removing therefrom. The words ‘inhabitant,’ ‘citizen,’ and ‘resident,’ as employed in different constitutions to define the qualifixations of electors, mean substantially the gam0 ¿King; and one is an inhabitant, resident, or citizen at the place where he has his domicile or home.” Cooley, Const. Lim. [6 Ed.], 754.

Daíde?mín: cRy^'change of residence. In our opinion, then, Banta’s residence, permanent abode or habitation was all the time in the second ward of the city of Westport. He never -abandoned this legal residence; his stay at the Kansas City flats was for a mere temporary purpose; he all the time retained his domicile a|; fath.er’S house in Westport; he had there a furnished room held for his use and occupancy until his own house should be erected; there was no change of the residence required by the statute, and hence this action to oust the defendant must fail.

The other judges concurring,

a judgment will be entered for the defendant.