Judges: RICHARD P. IEYOUB
Filed Date: 1/19/2001
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Charles:
You advise that two members of the City Council for the City of St. Martinville, both of whom hold elective office to the council, no longer reside within their respective districts. You ask whether or not these individuals can continue to serve in office.
It is presumed that your legislative charter provides that a councilman must reside or be domiciled within the district which he represents. The Election Code provides that a vacancy is created in an elective office "when the person elected to or holding the office no longer meets the residence or domicile requirements of that office." See
The domicile of each citizen is in the parish wherein he has his principal establishment. The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.
Residence and domicile are not synonymous. A person can have several residences but only one domicile. See McClendon vs. Bell,
An individual may have many residences but only one domicile, that being the principal place of residence. See Messer vs. London,
The fact of change of residence may ipso facto, automatically give grounds for having an office declared vacated and the officer removed, but it cannot be said that the office is vacated until such is declared by a court or other authorized official or governing body.
Thus, the St. Martinville City Council as local governing authority must declare the office to be vacant as contemplated by the Election Code in R.S.
Finally, R.S.
G. The provisions of this Section shall apply to all local governmental subdivisions unless the filling of a vacancy otherwise is provided for by the constitution or by the home rule charter or home rule pan of government of the affected local governmental subdivision. Such constitutional home rule plan provisions shall govern the filling of the vacancies and the time and manner of calling elections to fill the vacancies to which such provisions apply.
This office observed in Attorney General Opinion 83-237 that a special legislative charter constitutes a home rule plan of government. If that charter provides for the filling of vacancies in the local governing authority then R.S.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: ________________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:ams
OPINION NUMBER 00-127
April 20, 2000
R.S.
Until a change of residence is duly established and the office is declared vacant, the individual is entitled to remain in office.
Hon. Tommy Wright State Representative District 22 P.O. Box 2440 Jena, LA 71342
Dear Representative Wright:
This office is in receipt of your request for an opinion of the Attorney General in regard to residency requirements for membership on the Pollock Town council. You indicate Louisiana Highway 165, Grant Parish is presently under construction, and the property owned by Mrs. Rita Till on the Highway was purchased by the State. Being forced to move, and unsuccessful in locating property within the city limits, she is building her home immediately outside the city limits. Her request to be annexed into the city limits having been denied on the basis of the expense of running utilities to her property, she is faced with having to resign her position as Town Council member inasmuch as she will no longer reside within the city limits. You seek advice of this office on the matter.
It is pertinent to note that R.S.
The fact of change of residence may ipso facto, automatically give grounds for having an office declared vacacted and the officer removed, but it cannot be said that the office is vacated until such is declared by a court or other authorized official or governing body.
* * * * * * * * * * * * * * * * * * * * * * * * * * *
This holding is consistent with the definition of vacancy contained in Art. X, § 28 of the 1974 Constitution:
A vacancy, as used in this Constitution, shall occurr in the event of death, resignation, removal by any means, or failure to take office for any reason.
The phrase "removal by any means" contemplates removal of the officeholder by lawful means before a vacancy can be said to exist.
This office has stated that when a local official moves from the district from which he is elected, the local governing authority may declare the office vacant. Atty. Gen. Op. Nos. 98-326, 92-350, 80-1171, and 78-1244.
R.S.
The courts and this office have observed that an individual may have many residences but one domicile, that being the principal place of residence, Messer v. London,
However, we find it significant to note that in accordance with R.S.
In sum, until Mrs. Till's change of residence is duly established and the office is declared vacant in accordance with R.S.
We hope this sufficiently advises you on matters of your concern.
Sincerely yours,
RICHARD P. IEYOUB Attorney General
BY: __________________________ BARBARA B. RUTLEDGE Assistant Attorney General RPI/bbr