Jain v. Bossen

• Decision Date: 30 June 1900
• Citation: 62 P. 194,27 Colo. 423
• Parties: JAIN v. BOSSEN.
• Court: Colorado Supreme Court

62 P. 194

27 Colo. 423

JAIN v. BOSSEN.

Supreme Court of Colorado

June 30, 1900

Error to Boulder county court.

Action by Lewis M. Jain against Martin Bossen, contesting the election of defendant to the office of town trustee for town of Ward. From a judgment in favor of contestee, contestor brings error. Affirmed.

James D. Merwin and Guy D. Duncan, for plaintiff in error.

John W Helbig, for defendant in error.

GABBERT J.

The contest in this case is over the office of trustee for the town of Ward. The canvassing board determined that defendant in error received 167, and plaintiff in error 131, votes. The latter brought this action to contest the election of his opponent. From a judgment in favor of contestee, contestor brings the case here for review on error. In his statement he charges that 50 persons, whom he names (including contestee) and who cast their votes for the latter, were illegal voters. On the trial it was admitted that 11 of the persons so named were qualified to vote. Of those remaining, exclusive of contestee, the court found that 26 were qualified electors which gave contestee a majority of 23 votes. The court also found that contestee was a legal voter, and, as he voted for himself, his majority was increased to 24. The two important questions presented are: (1) Were a sufficient number of the 26 persons whom the court found to be legal voters in fact qualified electors, so as to give contestee a majority over his opponent? And (2) was contestee himself a qualified elector of the town of Ward?

On behalf of plaintiff in error it is contended that each of these questions should be answered in the negative. If three of the 26 were legal voters, it would result in giving contestee a majority of 1. Two of the persons charged in the statement as having voted for contestee, and whom it was claimed were not qualified electors, were L. L. Grover and wife. The court found that they were qualified to vote, and included them in the list of 26. The evidence regarding the qualifications of these persons was to the effect that within about two months prior to the election they had lived in the town of Ward continuously for upward of five years; that Mr Grover had a residence there, which they occupied; that about two months before the election he had taken a contract on a mining property at a place known as 'Wall Street'; that his wife accompanied him to that place; that he did not rent his house in Ward, but left it and part of his furniture there in charge of a Mr. Blakely; that when this contract was completed, which was about the 1st of May succeeding the election, they both returned to Ward, and occupied their residence at that place. On this evidence the trial court was clearly right in concluding that these parties were qualified electors in the town of Ward. Their domicile was at that place. The distinction between mere residence and domicile must be borne in mind. The former is used in law to denote that a person dwells in a given place. The latter is the legal home of a person, or that place where the law presumes that he has the intention of permanently residing, although he may be absent from it. Rep. & L. Law Dict. When one has acquired a domicile, he must abandon it before he can gain another. To effect such a change there must be both act and intention. In other words, there must be a severance from the old place, with the intention of uniting with the new one, and these must concur. Kellogg v. Hickman, 12 Colo. 256, 21 P. 325. A mere change of residence is not sufficient to acquire a domicile elsewhere, unless it is intended to be permanent. In all such cases it is the intention which is to control, so that a mere temporary absence for a temporary purpose does not result in an abandonment of a domicile. Id.; 10 Am. & Eng. Enc. Law (2d Ed.) 600. Grover and wife had only left Ward for a special purpose. There was no evidence whatever from which it could be inferred that they intended to abandon their residence in that town. On the contrary, the evidence was conclusive that they expected to return as soon as the object for which they left was accomplished. Under such a state of facts, they had not acquired a domicile at Wall Street, and therefore could not have lost the one at Ward.

The court also found that John Crimmins and wife were legal voters, and they are included in the list of 26. The evidence of Crimmins is to the effect that he and his wife went to Wall Street about the same time that the Grovers did; Mr Crimmins going there to do contract work. They had both resided in Ward a year and nine months prior to this time. They took part of their furniture to Wall Street, and left the remainder at Ward, because they intended to return to that place as soon as the contract was finished, which, after the election, they did. There is some evidence to contradict that given by Crimmins, but as the trial court found that these parties were qualified electors, on testimony which in some respects was contradictory, we are not at liberty to disturb the findings of fact necessarily made. Under the authorities, and the reasons given in holding that Grover and...