Chomeau v. Roth

This is an appeal by the contestant from the judgment and decision of the Circuit Court of St. Louis County for the contestee in an election contest.

It appears that at the general election of April 5, 1932, for elective municipal officers, contestant, Richard D. Chomeau, and contestee, George Roth, were, respectively, candidates for election to the office of collector of the City of Clayton, to hold office for a term of two years from and after April 12, 1932. According to the certificate of the city clerk, the election resulted in the election of contestee by a majority of 149 votes, he having a total of 1,325 votes as against contestant's 1,176 votes. Upon the recount it appeared that contestant received 1,163 votes as against contestee's 1,323 votes, giving the latter a majority of 160 votes.

In due course the present proceedings to contest the election were begun by contestant, the sole ground of contest being that some 530 votes had been illegally cast at the election by persons who were not at the time qualified voters of the City of Clayton, not being residents thereof. Actually the contests involved only 219 votes which were challenged by contestant on recount, all of such votes having been cast by students of Concordia Seminary, a Lutheran theological school, located at 801 De Mun Avenue, in Ward 5, Precinct 2, of the City of Clayton. Of such 219 contested votes, it appeared upon the recount that 211 had voted for contestee and 8 for contestant, so that if all of such votes would be thrown out as having been illegally cast upon the ground assigned by contestant, the result would be the election of contestant over contestee by a majority of forty-three votes.

Despite the importance of the question of a particular person's intention as to residence in determining his right to vote at a given election, this case has not been tried upon the theory of testing out the qualification of each individual student whose right to vote has been challenged by the contest, but rather upon the question of the qualifications of the student body generally, the nature and character of Concordia Seminary itself considered.

The evidence discloses that the students attending the seminary are all members of the Lutheran faith, and that the sole function of the seminary is to educate young men for the ministry in the Lutheran Church. The students are given a special training for a number of years at preparatory schools located at various parts of the country, following which they come to the seminary for the regular theological course of three years. Whether or not the course will be completed in three years depends upon the work of the individual student. Upon his matriculation, neither he nor the school authorities can know for what length of time he will be a student at the school. He may finish in the prescribed period of three years, and then sever his connections with the school, unless he stays over for the graduate course of one year which the seminary offers when conditions require it and make it possible. If he fails in any of his examinations, he must, of course, return and make up the deficiencies in his credits, whatever they may be.

When the student leaves his home to come to the seminary, he comes with the intention of not returning to his home permanently. Upon his graduation, he is subject to call to one of the Lutheran congregations or missions in any part of the world, such call being made through an assignment board. Ordinarily he is assigned to the ministry, although it is not absolutely certain that he will receive such an assignment. Only one Lutheran church is located within the corporate limits of the City of Clayton.

At the time of the election in question there were approximately 440 students enrolled in the seminary. In almost every instance the students reside in the dormitories, two students occupying a suite of two rooms. In rare instances, students whose parents reside in the neighboring City of St. Louis live with them while in attendance, but even some of the St. Louis students likewise live in the seminary buildings. While residing in the dormitories, the students room there, eat there, and receive their mail there. They are under the supervision and control of the school authorities while enrolled in school, and are not permitted to leave what is called greater St. Louis without permission. They are required to be present at classes, and to be in the dormitories by midnight, unless excused; and only for what is considered by the authorities as a very good reason are they permitted to spend nights away from the seminary in the immediate community.

So far as concerns the question of their maintenance, it appears that about two-thirds of the students are supported by their parents, and one-third not. What the status in this respect may have been of any individual student whose right to have voted is challenged in this proceeding is not disclosed.

When each student enrolls, he is required to fill out a blank giving information for the school's records, such information consisting, among other things, of his name, birthplace, birthday, parents' names, and "present address." From such blank the dean's office makes up enrollment cards. Apparently the seminary itself regarded the term "present address" on the information blanks as synonymous with "home address," for it so used the latter term in making up the enrollment cards. Suffice it to say that neither the seminary nor the City of Clayton was given as the "home address" of any student whose right to vote at the election in question is under inquiry. The introduction in evidence of the enrollment cards came over contestee's objection, the court's ruling being that they furnished some evidence upon an issue in the case.

The only direct evidence upon the question of intention was the testimony of the dean that the students always considered Concordia Seminary as their home, and while there, as in this instance, exercised the right of suffrage.

The principal witness for the contestee was one of the judges of the election. He testified that he interrogated the students from the seminary who presented themselves to vote at the election; that he questioned them about where they had come from, and how long they had been in attendance at the school; that they stated that they lived and made their home at the seminary; and that upon such statements the judges permitted them to vote. Such students as had originally come from the City of St. Louis, the judges arbitrarily denied the right to vote upon the theory that they were too near St. Louis to call the seminary their home. Obviously, such proximity to their parents' homes would be a matter to be considered upon the question of residence, but it could not of itself be conclusive upon it. Likewise, the judges arbitrarily required of the students a residence of two years in the City of Clayton as a qualification for voting. This, apparently, in disregard of the constitutional and statutory provisions that one year's residence in the State and sixty days' residence in the city suffice to qualify a voter in the matter of his residence.

Tried to the court, the finding and judgment for contestee, and contestant's appeal therefrom, all followed as has been heretofore indicated.

Pointing out that upon undisputed evidence (though warranting different inferences), the question at issue is one of law for our determination, contestant argues that the students whose right to vote is challenged did not and could not establish a voting residence in the City of Clayton by merely taking up residence, as students, on the premises of the seminary, notwithstanding the fact that they may have boarded and lodged there for one year before presenting themselves to vote. In the light of all the facts and circumstances in evidence, including the fact of taking up residence at the seminary, we think no such conclusion necessarily follows.

The fact that the challenged voters were students is in and of itself not at all decisive of the case. Our Missouri Constitution provides in article 8, section 7 (Const., art. 8, sec. 7, p. 677), that for the purpose of voting, no person shall be deemed to have gained a residence by reason of his presence, or to have lost it by reason of his absence, while a student of any institution of learning. So the Constitution leaves the student much as it finds him, permitting him either to retain his original residence for voting purposes, or to take up a residence wherever his school is located if he so elects. In other words, mere physical presence at the school is not enough either to gain for him a voting residence at the school, or to cause him to lose his existing voting residence at his home, the whole question, as in all similar situations, being largely one of intention, to be determined not alone from the evidence of the party himself, but in the light of all the facts and circumstances of the case. [Hall v. Schoenecke, 128 Mo. 661, 31 S.W. 97; Goben v. Murrell,195 Mo. App. 104, 190 S.W. 986.]

The two cited cases, and particularly the former, control this case in all essential respects. As they announce the law, it is entirely possible for a student to gain a residence at the place where he is attending school, although he may have gone there for no other purpose than to attend school, the question of whether a change of residence is effected depending upon the intention with which the removal from the former residence was made. A temporary removal for the sole purpose of attending school, without any intention of abandoning his usual residence, and with the fixed intention of returning thereto when his purpose has been accomplished, will not constitute such a change of residence as to entitle the student to vote at his temporary abode. But conversely, an actual residence, coupled with the intention to remain either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode, is sufficient to work a change of domicile. [Nolker v. Nolker (Mo. Sup.), 257 S.W. 798; Finley v. Finley (Mo. App.), 6 S.W.2d 1006.]

Now in this case, when the students entered the seminary, they at least came, so there was evidence to show, with the fixed intention of not resuming their respective residences at their former homes after graduation. Upon enrolling at the seminary they knew only that they were abandoning their former residences, and that they would reside at the seminary, not permanently, but for an indefinite time, depending upon the promptness with which they might complete the course, and upon whether they might subsequently take the postgraduate course. The abandonment of the former residence is the important factor; and the necessity of ultimate removal from the seminary should not affect the result. If, as the evidence shows, upon matriculation at the seminary the students abandoned their former residences, entering the school with the fixed intention of not returning to their original homes permanently, are they to be disfranchised from thenceforth until they acquire a residence after graduation? We think not. Rather, the policy of the law is to construe election laws liberally in aid of the right of suffrage.

And in this view of the case, not only had the particular students abandoned their former residences upon entering the seminary, as there was evidence to disclose, but they presented themselves as voters at the proper precinct in the City of Clayton, declaring to the election officials in charge thereof that they regarded the seminary as their place of residence. We grant that such statements on their part were not conclusive upon the question of their intention, but the evidence thereof, together with the other matters we have heretofore dwelt upon as significant, amply warranted the trial court in finding, as it did, that they were qualified to vote. If, as is said in Goben v. Murrell, supra, residence for voting purposes must have some connection or identification with the community, such connection or identification could not better be evidenced than by a participation in the community's public affairs by those who claim no other community as their residence.

The judgment rendered by the circuit court should be affirmed; and the commissioner so recommends.