Barrett v. Parks

• Decision Date: 03 April 1944
• Docket Number: 38561,38562,38563
• Parties: Jesse W. Barrett, Alphonse G. Eberle, William E. Buder, and A. Sidney Johnson, as Members of and constituting and composing the Board of Election Commissioners of the City of St. Louis, v. Oscar R. Parks, Appellant. Jesse W. Barrett, Alphonse G. Eberle, William E. Buder, and A. Sidney Johnson, as Members of and constituting and composing the Board of Election Commissioners of the City of St. Louis, v. Otto Richter, Appellant. Jesse W. Barrett, Alphonse G. Eberle, William E. Buder, and A. Sidney Johnson, as Members of and constituting and composing the Board of Election Commissioners of the City of St. Louis, Appellants, v. Hastings Patrick Cox
• Court: Missouri Supreme Court

180 S.W.2d 665

352 Mo. 974

Jesse W. Barrett, Alphonse G. Eberle, William E. Buder, and A. Sidney Johnson, as Members of and constituting and composing the Board of Election Commissioners of the City of St. Louis, v. Oscar R. Parks, Appellant. Jesse W. Barrett, Alphonse G. Eberle, William E. Buder, and A. Sidney Johnson, as Members of and constituting and composing the Board of Election Commissioners of the City of St. Louis, v. Otto Richter, Appellant. Jesse W. Barrett, Alphonse G. Eberle, William E. Buder, and A. Sidney Johnson, as Members of and constituting and composing the Board of Election Commissioners of the City of St. Louis, Appellants, v. Hastings Patrick Cox

Nos. 38561, 38562, 38563

Supreme Court of Missouri

April 3, 1944

Motion to Modify Opinion or to Transfer to Banc Overruled June 5 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Reversed as to Oscar R. Parks, affirmed as to Hastings Patrick Cox, and appeal of Otto Richter dismissed.

Fred J Hoffmeister for appellant, Oscar R. Parks.

(1) Establishing a voting residence is a question of intention to be determined in the light of all the facts and circumstances in evidence. Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997; State ex rel. Ramey v. Dayton, 77 Mo. 678; Lankford v. Gebhart, 130 Mo. 621; Hall v. Schoenecke, 128 Mo. 661; Goben v. Murrell, 195 Mo.App. 104, 190 S.W. 986, 197 S.W. 432. (2) Defendant Parks, as Manager of the City Airport, is employed in the civil and military service of the State of Missouri, and for the purpose of voting has not gained a residence by reason of his presence or lost it by reason of his absence. Sec. 7, Art. VIII, Const. of Mo.; Lankford v. Gebhart, 130 Mo. 621; State v. Levy Court, 43 A. 522.

Joseph F. Holland, City Counselor, and George L. Stemmler, First Associate City Counselor, for appellants Jesse W. Barrett et al., constituting and composing the Board of Election Commissioners for the City of St. Louis.

(1) The decree correctly declares the law to be that Section 655 (Clauses First and Seventeenth) of the Revised Statutes of Missouri 1939, determines the construction of Article 24 of Chapter 76 of the Revised Statutes of 1939, as to what constitutes "residence" of persons offering to register and vote in The City of St. Louis. Section 655, R.S. Mo. 1939; State v. Keating, 202 Mo. 197, 223 Mo. 86. (2) The decree correctly declares the law to be that, for the purposes of registering and voting in The City of St. Louis, the "residence" of a person is the place where the family of such person permanently resides or the place where any person having no family generally lodges; and a person cannot establish a "residence" for the purpose of registering or voting by merely forming or having or declaring an intention, unaccompanied by acts, that such "residence" for such purposes shall be at an address other than such "place" as defined in Section 655. Section 655, R.S. 1939. (3) The decree correctly declares the law to be that "residence," for the purposes of registering and voting, is synonymous with the words "domicile," "permanent place of abode" and "home," and is that place to which a person, whenever absent therefrom, expects to return. Cooley, Constitutional Limitations (7th Ed.), p. 903; Greene v. Beckwith, 38 Mo. 384; State v. Snyder, 182 Mo. 462, 82 S.W. 12; Delaware, L. & W.R. Co. v. Petrawski, 250 F. 554; Wagner v. Spurlock, 166 Md. 284, 170 A. 539; In re Gilbert's Estate, 311 Ill.App. 28, 35 N.E.2d 400. (4) The decree correctly declares the law to be that the word, "family," as used in Section 655, Revised Statutes of Missouri 1939, means a collection of two or more persons living together in a dwelling place as a common home, and bound together by the ties of a permanent domestic relationship, under one hand or management. (5) The decree properly declares the law to be that, for the purposes of registration and voting, the place where a person having no family "generally lodges" is that place where such person generally sleeps, where he has established his "home" or "domicile" and where he may be said "to live." Sec. 655, R.S. 1939; Hirschhorn v. Ahearn, 245 N.Y.S. 475, 230 A.D. 533; Webster's International Dictionary, Definitions of "Reside" and "Residence." (6) The decree properly declares the law to be that, while the whole question of residence may be said to be one largely of "intention," that intention is to be determined not alone from the person's own declarations as to his intention, but from his actions and all the facts and circumstances of the case, all in the light of the definition prescribed by section 655 of the statutes. 18 Am. Jur., p. 218, sec. 57; Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997; Hall v. Schoenecke, 128 Mo. 661, 31 S.W. 97; Goben v. Murrell, 195 Mo.App. 104, 190 S.W. 986, 197 S.W. 432; Nelson v. Goss, 27 N.D. 357, 146 N.W. 537; Pope v. Board of Election Commissioners of East St. Louis, 370 Ill. 196, 18 N.E.2d 214; Coffee v. Board of Election Commissioners of East St. Louis, 375 Ill. 385, 31 N.E.2d 588; Park v. Hood, 374 Ill. 36, 27 N.E.2d 838; Hale v. Stimson, 198 Mo. 134. (7) The judgment of the lower court is in error in ordering, adjudging, decreeing and declaring that respondent Hastings Patrick Cox (defendant below) does reside at 2861 North Grand Boulevard and has the right to maintain his registration from said address, and that the plaintiffs have not the right and authority to cancel his registration from said address.

Donald E. Lyons and James T. Britt for Harry L. Thomas, Thomas R. Hunt, Herman M. Langworthy and W. F. Woodruff, as Members of and constituting and composing the Board of Election Commissioners of Kansas City, Missouri, amici curiae.

Bohling, C. Westhues, C., concurs; Barrett, C., absent.

OPINION

PER CURIAM

These appeals present for determination the residence of certain individuals for registration and voting purposes in the City of St. Louis, Missouri. The proceedings were instituted by the Board of Election Commissioners of said City filing a petition for a declaratory judgment with respect to a number of the registered voters of the City. The court made a number of declarations. We think in one of the cases that the plaintiff Board failed to sustain the burden of going forward with the evidence and in the other there is no contested issue of law presented for our determination. The questions for determination fall within the following constitutional and statutory provisions;

So far as material here, "all citizens of the United States . . . who have resided in this state one year, and in the county, city or town sixty days immediately preceding the election at which they offer to vote, and no other person, shall be entitled to vote at all elections by the people . . ." Mo. Const. Art. VIII, Sec. 2. (Consult Mo. Const. 1865, Art. II, Sec. 18.) "The General Assembly shall provide by law for the registration of voters . . . in cities having a population of more than ten thousand . . ." Ibid. Sec. 5. Article 24, Chapter 76, R.S. 1939, provides for the permanent registration of voters and the holding of elections in cities of 600,000 or more, which includes the City of St. Louis. Section 12206 thereof is similar to the above quoted Sec. 2 of the Constitution and Sec. 12207 makes registration "as a qualified voter in the precinct" a prerequisite to voting therein.

Section 655, R.S. 1939, prescribing certain rules for construing statutes, provides, with respect to the word residence: "The construction of all statutes of this state shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the legislature, or of the context of the same statute: . . . seventeenth, the place where the family of any person shall permanently reside in this state, and the place where any person having no family shall generally lodge, shall be deemed the place of residence of such person or persons respectively".

What is meant by the term "reside" or "residence" depends upon the applicable legislative expressions and the purposes under consideration. It is evident that under Sec 2, Art. VIII, of the Missouri Constitution one may not reside in more than one place for the purpose of exercising the right of suffrage. The cases are to the effect that "reside" or "residence" is a question of fact to be determined from the acts and intentions of the individual citizen and the words "permanently reside" of Sec. 655 insofar as they influence the issue are not used in the sense that "residence" may never be changed but that there exists no present intention to change it. One's intentions frequently enter where there has been a change of residence or the establishment of a temporary residence or a temporary absence from one's usual residence. Issues involving intentions have most frequently arisen in connection with some individual within the provisions of Sec. 7, Art. VIII of the Missouri Constitution, relating to the gaining or losing of residence while in the services of the United States or of the State et cetera. Conduct is an important factor in determining intention as actions speak louder than words. So, if there exists a discrepancy between declarations of intention and acts, the declarations yield to the conclusion to be drawn from the acts. Chomeau v. Roth (1934), 230 Mo.App. 709, 718, 72 S.W. 2d 997, 999[4, 5]; Goben v. Murrell (1916), 195 Mo.App. 104, 109, 190 S.W. 986, 988; Hall v. Schoenecke (1895), 128 Mo. 661, 667(II), 31 S.W. 97(2); Johnson v. Smith (1869), 43 Mo. 499, 501; Greene v. Beckwith (1866), 38 Mo. 384, 388; State ex rel. Ramey v. Dayton (1883), 77 Mo. 678, 682; McDowell v. Friedman Bros. Shoe Co. (1909), 135 Mo.App. 276, 286, 115 S.W. 1028, 1032; Re Ozias Estate (Mo....