Chomeau v. Roth

• Decision Date: 15 June 1934
• Docket Number: No. 22933.,22933.
• Citation: 72 S.W.2d 997
• Parties: RICHARD D. CHOMEAU (CONTESTANT), APPELLANT, v. GEORGE ROTH (CONTESTEE), RESPONDENT.
• Court: Missouri Court of Appeals

72 S.W.2d 997

RICHARD D. CHOMEAU (CONTESTANT), APPELLANT, v. GEORGE ROTH (CONTESTEE), RESPONDENT.

No. 22933.

St. Louis Court of Appeals. Missouri.

Opinion filed June 15, 1934.

Appeal from the Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

AFFIRMED.

Glendy B. Arnold and Philip A. Foley for appellant.

(1) While neither the Constitution (article VIII, section 2) nor the statutes (section 10504) declare, in express terms, that a voter must have resided in this State one year with the intention of establishing a permanent residence here, yet those provisions have always been so interpreted. Hence, a temporary residence is insufficient to qualify one as a voter in Missouri. State v. Keating, 202 Mo. 197, 208, 223 Mo. 86; Hall v. Schoenecke, 129 Mo. 661, 666; Goben v. Murrell, 195 Mo. App. 104, 106; Lankford v. Gebhart, 130 Mo. 621, 633. (2) A voter's residence must not only be permanent in the State, and county, where he offers to vote, but must be permanent in the precinct also. Lankford v. Gebhart, 130 Mo. 621, 637; State v. Keating supra. (3) The purposes for which Concordia Seminary is maintained made it impossible for the whole student body to acquire a permanent residence on its premises. Hence, none could acquire such residence. In re Blankford, 241 N.Y. 180, a parallel case. (4) Students who go to a city to attend college, with the intention of going elsewhere to pursue their calling after graduation, do not acquire a voting residence in the college town. Goben v. Murrell, 195 Mo. App. 104, 108. (5) Residence by a student in a seminary does not work a change of domicile. In the Matter of Barry, 164 N.Y. 18; In re Blankford, 241 N.Y. 180. (6) A voting residence is never lost until a new one is gained. In re Goodman, 147 N.Y. 117. (7) Even though the students left their homes with no intention of returning that fact did not make their residence at the seminary a permanent one. In re Blankford, 241 N.Y. 180. (8) While it may have been possible for these students to have established a voting residence in Clayton, elsewhere than at the seminary, yet this would have to be done by acts entirely distinct from their mere presence and residence at the seminary. There were no such acts in this case. In re Barry, 164 N.Y. 18; In re Blankford, 241 N.Y. 180; Const. of Mo., art. VIII, sec. 7. (9) The statement of the students to the election judges that they lived at and that their home was at the seminary is the statement of a legal conclusion, not determinative, and a "contrary intent may be gathered from all the circumstances." Goben v. Murrell, 195 Mo. App. 104, l.c. 107; Lankford v. Gebhart, 130 Mo. 621, l.c. 638; Hall v. Schoenecke, 128 Mo. 661, l.c. 666. (10) No presumptions of innocence or validity of votes may be indulged in this case because the facts upon which the election judges acted were before the trial court. Mockowick v. Railroad, 196 Mo. 550, 571. (11) "Slight proof of the lack of any necessary qualification to vote is sufficient to overcome the presumption arising from registration or voting." Summers v. Gould, 165 Pac. 599. (12) The home address as given by the students and typed on the enrollment cards was competent evidence that their voting residences were elsewhere than at the seminary. Declarations of a voter as to his residence are competent evidence in a case like this. In re Lankford Estate, 272 Mo. 1, 9; Summers v. Gould, 165 Pac. 599; State v. Lally, 134 Wis. 235, 114 N.W. 447; 9 R.C.L. 1032. (13) The mere residence of these students at the seminary for one year was, standing alone, no evidence of a change of domicile. Constitution of Mo., art. VIII, sec. 7; In re Blankford, 241 N.Y. 180. (14) Identity of names is prima facie evidence of identity of persons. Tapley v. Herman, 95 Mo. App. 537; Flournoy v. Warden, 17 Mo. 435; Gitt v. Watson, 18 Mo. 274; State v. Moore, 61 Mo. 276; State v. Kelso, 76 Mo. 505; La Riviere v. La Riviere, 77 Mo. 512; Long v. McDow, 87 Mo. 197; State v. McGuire, 87 Mo. 642; State v. Court, 225 Mo. 609. (15) The trial court was, and of course this court is, bound by the admissions and the theory on which the parties try and submit the case below. Walsh v. Railroad, 102 Mo. 582; Gee v. Sherman, 221 Mo. 121.

Peter T. Barrett and Walter Wehrle for respondent.

(1) When a person has voted and his vote has been counted, the presumption is that he was a legal voter. Gumm v. Hubbard, 97 Mo., l.c. 320; Gass v. Evans, 244 Mo., l.c. 344; Wickham v. Coyner, 30 Ohio Cir. Ct. Rep. 765, 773; Beardstown v. Virginia, 76 Ill., l.c. 44; People v. Pease, 27 N.Y., l.c. 74 and 75; Commonwealth v. Bradford (Mass.), 9 Metc. 268; Welch v. Shumway, 232 Ill. 54, 83 N.W. 549, 551; Goben v. Murrell, 195 Mo. App. 104, 107; Hope v. Flentge, 140 Mo. 390, l.c. 398, 399; People v. Teague, 106 N.C. 571, 11 S.E. 655. This presumption is not destroyed by showing that the voter was a student. Goben v. Murrell, 195 Mo. App. 104, 107. (2) The presumption of legality is not overthrown by proof that the voter removed from the town or county after he voted. This presumption can be overcome only by affirmative, preponderating testimony that such vote was illegal. People v. Teague, 106 N.C. 571, 11 S.E. 655; Gass v. Evans, 244 Mo., l.c. 344. (3) The action of the judges of election in permitting persons to vote at said election is presumed to be right. Hehl v. Guion, 155 Mo. 76, 79. (4) If the students of Concordia Seminary were nonresidents and voted, they would be guilty of a crime. Beardstown v. Virginia, 76 Ill., l.c. 44; People v. Pease, 27 N.Y., l.c. 74, 75; Commonwealth v. Bradford (Mass.), 9 Metc. 268; Section 3962, Revised Statutes of Mo., 1929. (5) If the Concordia students voted at said election, they are presumed to be innocent of any wrongdoing, that is, that they voted lawfully, and it cannot be assumed that they committed a crime. This is the strongest presumption known to the law. Wickham v. Coyner, 30 Ohio Cir. Ct. Rep. 765, 773; Acuff v. N.Y. Life Ins. Co., 210 Mo. App. 356, 366; Beardstown v. Virginia, 76 Ill., l.c. 44; People v. Pease, 27 N.Y., l.c. 74, 75; Commonwealth v. Bradford (Mass.), 9 Metc. 268. To rebut the presumption of innocence, contestant must prove by positive evidence that the Concordia students were not residents of Clayton, and that they voted at said election. Commonwealth v. Bradford (Mass.), 9 Metc. 268; People v. Pease, 27 N.Y. 74, 75. (6) Presumption of continuity of former residence, as shown on matriculation cards or sheets, is in conflict with and overcome by the presumption of innocence. Wickham v. Coyner, 30 Ohio Cir. Ct. Rep. 765, 773; Jones on Evidence, p. 448, Note; Acuff v. N.Y. Life Ins. Co., 210 Mo. App. 356, 366; Beardstown v. Virginia, 76 Ill., l.c. 44; People v. Pease, 27 N.Y., l.c. 74, 75; Commonwealth v. Bradford (Mass.), 9 Metc. 268. To rebut such counter and stronger presumption, some positive testimony to establish the negative (nonresidence) is necessary. Commonwealth v. Bradford (Mass.), 9 Metc. 268; Beardstown v. Virginia, 76 Ill., l.c. 44. (7) If some of the students of Concordia Seminary voted at the election in contest, the fact that they were not living at the seminary after June, 1932, is not proof of their nonresidence in Clayton on April 5, 1932. They may have died or moved elsewhere in Clayton. Gass v. Evans, 244 Mo. 329, 344; Johnson v. Smith, 43 Mo., l.c. 501; People v. Teague, 106 N.C. 571, 11 S.E. 655. Mere departure is not proof of nonresidence. One may have a domicile in Clayton and at the same time live elsewhere. Johnson v. Smith, 43 Mo., l.c. 501. (8) If a person of foreign birth votes at an election, the presumption is that he voted legally, i.e., that he was naturalized, in the absence of proof of nonnaturalization. People v. Pease, 27 N.Y., l.c. 74, 75; Gumm v. Hubbard, 97 Mo. 311, 320. To rebut such presumption, some positive evidence to establish the negative is necessary. Ibid. (9) The burden is upon contestant to prove that the Concordia students are nonresidents of Clayton, and that they voted at said election. Commonwealth v. Bradford (Mass.), 9 Metc. 268; Beardstown v. Virginia, 76 Ill., l.c. 44; Goben v. Murrell, 195 Mo. App. 104, 107; Wickham v. Coyner, 30 Ohio Cir. Ct. Rep. 765, 773; People v. Pease, 27 N.Y., l.c. 74, 75. (10) A student attending a college, university or seminary may become a resident and voter of the town in which the institution is located, though he only went there for the purpose of attending school. People v. Osborn, 170 Mich. 143, 135 N.W. 921; Wickham v. Coyner, 30 Ohio Cir. Ct. Rep. 765, 774-775; Saunders v. Getchell, 76 Me. 158; Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434; Putnam v. Johnson, 10 Mass. 488; Berry v. Wilcox, 44 Neb. 82, 62 N.W. 249; Pedigo v. Grimes, 113 Ind. 148, 13 N.E. 700; 15 Cyc. 293; 37 A.L.R. 137, 141; Welch v. Shumway, 232 Ill. 54, 83 N.E. 549, 551; Matter of Barry, 164 N.Y. 18, 58 N.E. 12; In re Goodman, 146 N.Y. 284, 40 N.E. 769; In re Garvey, 147 N.Y. 117, 41 N.E. 439; In re Gardner, 167 N.Y.S. 26; Hall v. Schoenecke, 128 Mo. 661, 666; Goben v. Murrell, 195 Mo. App. 104, 107; Hale v. Simpson, 198 Mo. 134; Lankford v. Gebhart, 130 Mo. 621; 20 Corpus Juris, p. 72, F.N. 96; Farlee v. Runk, 1 Bartlett, 87; Paine on Elections, sec. 70. (11) Even though the Concordia students went to Clayton only for the purpose of attending Concordia Seminary, this does not conclude the question whether they are legal voters, if they actually voted at said election. Goben v. Murrell, 195 Mo. App. 104, 107; Hall v. Schoenecke, 128 Mo. 661, 666; Seibold v. Wahl, 159 N.W. Rep. 546. They may have intended to reside in Clayton. It is a question of their intentions. Same authorities. (12) The fact that the students of Concordia Seminary were enrolled in that institution as students of learning did not affect their standing as residents for the purpose of voting, if they voted at said election. In the matter of Barry, 164 N.Y. 18, 58 N.E. 12; Putnam v. Johnson, 10...