Seibold v. Wahl

Decision Date10 October 1916
PartiesSEIBOLD v. WAHL ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Fred Seibold against Max Wahl and another, inspectors of elections. From an order overruling a demurrer to the complaint, the defendants appeal. Order reversed, and cause remanded.

In this case, as in the cases decided herewith of John Gross, Albert Asbahr, and Randolph L. Wadsworth, plaintiffs respectively, against the same defendants (159 N. W. 549, 550), the plaintiffs each over 21 years of age, unmarried, owning no property and paying no taxes to the city of Madison, and students of the University of Wisconsin, at Madison, presented themselves as intending voters at the primary election held in the city of Madison March 21, 1916, before the defendants, inspectors of election. Each was examined as required by the defendants, and upon their respective statements the defendants refused to permit each of them to vote at such election. Thereupon each commenced an action in the circuit court for Dane county against the defendants to recover damages for such refusal. The respective complaints embody substantially the examination each plaintiff was subjected to by defendants, and upon which the right to vote was denied. Demurrers to the respective complaints were interposed, and upon the rulings on such demurrers by the circuit court appeals were taken to this court.Richmond, Jackman & Swansen, of Madison, for appellants.

Sanborn & Blake, of Madison, for respondent.

ESCHWEILER, J.

In the instant case the facts relied upon by plaintiff to sustain his right to vote and consequent right of action are as follows: His parents lived at Camp Douglas, Wis., from which place he registered at the University and to which place he returns on his vacations. He came to the University after graduation from the preparatory school, for the purpose of taking a college course and preparing himself as a lawyer, and would not have come to Madison except for that. His expenses at college are paid partly by his father and partly by his own efforts. After graduating he does not know where he will go; that depends upon what opportunities offer. He has not in mind any business opening in Madison that he intends to accept after graduation. He never registered as a voter in any other place than Madison. He further said:

“I consider this my home while in college, and have been advised and believe that under the above facts I did not come here for a temporary purpose merely, but this is my home within the meaning of the law of Wisconsin touching my right to vote within the city of Madison.”

In these four kindred cases the only question raised and argued before this court is as to whether the respective plaintiffs, students at the Wisconsin University, are entitled to vote in the city of Madison. No question is made but that if the facts presented show the plaintiffs are lawfully entitled to vote, the defendants may be held liable as inspectors of election for such refusal. Gillespie v. Palmer, 20 Wis. 544, 558.

By section 6.51, Wis. Stats., the Legislature has prescribed rules for determining the qualifications of electors, and the following subdivisions of that section are material:

“Second. That place shall be considered and held to be the residence in which his habitation is fixed, without any present intention of removing therefrom, and to which, whenever he is absent, he has the intention of returning.

Third. A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or county, town or ward of this state for temporary purposes merely, with an intention of returning.

Fourth. A person shall not be considered to have gained a residence in any town, ward or village of this state into which he shall have come for temporary purposes merely.

Fifth. If a person remove to another state with an intention to make it his permanent residence, he shall be considered and held to have lost his residence in this state.

Sixth. If a person remove to another state with the intention of remaining there for an indefinite time and as a place of present residence, he shall be considered and held to have lost his residence in this state, notwithstanding he may entertain an intention to return at some future period. * * *

Ninth. The mere intention to acquire a new residence, without removal, shall avail nothing; neither shall removal without intention.”

In determining upon the facts as they appear in the respective complaints as to whether each of these students comes within the requirements of the above statute, certain principles have been declared which are helpful in solving the question.

Although intention is an important element of the status of an elector, yet his own statement as to any such mental resolution cannot, of itself, control that element in a situation like this. Carter v. Sommermeyer, 27 Wis. 665;Hall v. Hall, 25 Wis. 600, 609.

The general rule is that a man must have a habitation or domicile somewhere, and that he can have but one at the same time for one and the same purpose, and that in order to lose one he must acquire another. Miller v. Sovereign Camp, W. O. W., 140 Wis. 505, 509, 122 N. W. 1126, 28 L. R. A. 178, 133 Am. St. Rep. 1095; Opinion of the Justices, 5 Metc. (Mass.) 587, 589.

Every person can fix his own residence provided he makes it reasonably permanent by intending to return thereto when a temporary job is finished. State ex rel. Small v. Bosacki, 154 Wis. 475, 478, 143 N. W. 175;State ex rel. Hallam v. Lally, 134 Wis. 253, 257, 114 N. W. 447, 15 Ann. Cas. 242.

Attendance at an institution of learning for the sole purpose of acquiring an education is not, of itself, sufficient to establish the student as an elector. Opinion of Justices, 5 Metc. (Mass.) 587, 589; Welsh v. Shumway, 232 Ill. 54, 88, 83 N. E. 549;Schaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, 435.

That mere attendance as a student cannot,of itself, be sufficient to establish such a status has been expressly provided for in a number of state Constitutions, for instance, article 2, par. 3, Const. New York, provides:

“For the purpose of voting no person shall be deemed to have gained or lost a residence * * * while a student of any seminary of learning.”

Under this constitutional provision it has been held that even four years of study and express renouncing of all other homes are not sufficient, of themselves, to give the status of qualified elector. In re Barry, 164 N. Y. 18, 58 N. E. 12, 52 L. R. A. 831;In re Goodman, 146 N. Y. 284, 40 N. E. 769. A similar provision is found in Colorado with the same construction. Parsons v. People, 30 Colo. 388, 70 Pac. 689; and, in Missouri, Hall v. Schoenecke, 128 Mo. 661, 31 S. W. 97; also, in Pennsylvania, Lower Oxford Election Case, 11 Phila. 641. This constitutional provision, however, does not seem...

To continue reading

Request your trial
14 cases
  • Coppedge v. Clinton
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 28, 1934
    ...a natural right. Cornelison v. Blackwelder, 38 Okl. 1, 131 P. 701; McGill v. Miller, 183 Ark. 585, 37 S.W. (2d) 689, 691; Seibold v. Wahl, 164 Wis. 82, 159 N. W. 546, Ann. Cas. 1917C, 400; Pickering v. Winch, 48 Or. 500, 87 P. 763, 9 L. R. A. (N. S.) 1159; Boyd v. Commonwealth, 149 Ky. 764,......
  • Chomeau v. Roth
    • United States
    • Missouri Court of Appeals
    • June 15, 1934
    ... ... Goben v ... Murrell, 195 Mo.App. 104, 107; Hall v ... Schoenecke, 128 Mo. 661, 666; Seibold v. Wahl, ... 159 N.W. 546. They may have intended to reside in Clayton. It ... is a question of their intentions. Same authorities. (12) The ... ...
  • State ex rel. Sathre v. Moodie
    • United States
    • North Dakota Supreme Court
    • February 2, 1935
    ...274, 159 N. Y. S. 132;Finn v. Bd. of Canvassers, 24 R. I. 482, 53 A. 633;Clarke v. McCowan, 107 S. C. 209, 92 S. E. 479;Seibold v. Wahl, 164 Wis. 82, 159 N. W. 546, Ann. Cas. 1917C, 400. In the case of In re Rooney, 172 App. Div. 274, 159 N. Y. S. 132, 133, the court said: “There is no sugg......
  • State ex rel. Sathre v. Moodie
    • United States
    • North Dakota Supreme Court
    • February 2, 1935
    ... ... 274, 159 N.Y.S. 132; Finn v. Board of ... Canvassers, 24 R.I. 482, 53 A. 633; Clarke v ... McCowan, 107 S.C. 209, 92 S.E. 479; Seibold v ... Wahl, 164 Wis. 82, 159 N.W. 546, Ann. Cas. 1917C, 400 ...          In the ... case of Re Rooney, 172 A.D. 274, 159 N.Y.S. 132, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT