State ex rel. King v. Walsh

• Decision Date: 05 August 1972
• Docket Number: No. 58037,58037
• Citation: 484 S.W.2d 641
• Parties: STATE of Missouri ex rel. R. J. KING, Jr., Individually and as a Member of the Class of Registered and Qualified Voters and Electors of the State of Missouri, Relator, v. Eugene WALSH et al., Respondents, Christopher S. (Kit) Bond, Intervenor-Respondent.
• Court: Missouri Supreme Court

Page 641

484 S.W.2d 641

STATE of Missouri ex rel. R. J. KING, Jr., Individually and

as a Member of the Class of Registered and

Qualified Voters and Electors of the

State of Missouri, Relator, v. Eugene WALSH et al., Respondents, Christopher S. (Kit) Bond, Intervenor-Respondent.

No. 58037.

Supreme Court of Missouri, En Banc.

Aug. 5, 1972.

Dissenting Opinions July 28 and Aug. 5, 1972.

Thomas M. Gioia, Crestwood and Anthony M. Gioia, St. Louis, by Thomas M. Gioia, Crestwood, and Albrecht & Homire, by James L. Homire, Jr., St. Louis, for relator.

Lewis, Rice, Tucker, Allen & Chubb, by F. Wm. McCalpin, Robert S. Allen, Kathianne Knaup, St. Louis, Joseph E. Stevens, Jr., Kansas City, for intervenor-respondent Christopher S. (Kit) Bond.

HENLEY, Judge.

This is an original proceeding in prohibition filed July 19, 1972, by which relator, individually and as representative of a class, seeks to prohibit respondents, as members of the Board of Election Commissioners of St. Louis county and as representatives of a class, from placing the name of Christopher S. (Kit) Bond upon the ballot as a candidate at the primary election to be held August 8, 1972, for nomination as the Republican candidate for Governor of this state. Our provisional rule was issued July 20, returnable July 24, 1972. In this interim, Mr. Bond was, on his motion, granted leave to and did intervene as a respondent. On July 24, 1972, respondents and the intervenor-respondent (hereinafter intervenor) filed their separate returns and the case was set for hearing and was heard on July 26 and 27. Thereafter, shortly after submission on July 27, 1972, the court entered its judgment discharging the provisional rule. We now state our reasons therefor.

The ground on which relator sought to so prohibit respondents was that intervenor was not qualified to be a candidate for nomination as the Republican candidate for Governor, because he would not on the date of the general election, November 7, 1972, meet the following qualification for that office required by Article IV, § 3, Constitution of Missouri: 'The governor * * * shall have been * * * a resident of this state at least ten years next before election.' Relator asserts in support of this conclusion that intervenor physically resided outside the state of Missouri and in other states as follows: (1) at Charlottesville, Virginia, while attending the law school of the University of Virginia from 1960 through 1963; (2) during the summer of 1961 in New York City while employed by the New York County District Attorney's office; (3) during the summer of 1962 in Atlanta, Georgia, while employed by an Atlanta law firm; (4) in Atlanta, Georgia, from July 1963 through June 1964, while employed as a law clerk by the Chief Judge of the United States Court of Appeals for the Fifth Circuit; (5) in Washington, D.C., from the fall of 1964 through the fall of 1967, while employed by a Washington law firm. Relator also asserts that intervenor made certain statements and performed certain acts which were inconsistent with an intent to maintain a residence in Missouri and were consistent with an intent to become a resident of another state or states in the following particulars: (1) he made application to take the Virginia bar examination in 1963, in which he stated he was a resident of that state and took the examination and was admitted to the bar of that state; (2) while employed in Georgia he made application in January 1964 to take the Georgia bar examination in which he stated that he was a resident of that state, took the examination and was admitted to the bar of that state; (3) while employed in Washington, D.C., he was, on his application made in March 1965, admitted to the bar of the United States District Court for the District of Columbia; (4) in January 1964, intervenor purchased a 1964 model Oldsmobile in Georgia and was issued a Georgia certificate of title showing his address as 55 Pharr Road, N.W., Apt. E 106, Atlanta, Georgia; that on application of intervenor, supported by his oath that he had moved, a duplicate Georgia title for his automobile was issued to him on January 21, 1965, showing his address as 701 Union Trust Building, Washington, D.C., and in March 1965, a District of Columbia title was issued to him for this automobile showing his address as 2325 Pennsylvania Avenue, N.W., Washington, D.C.; and that in December 1967, intervenor made application for a Missouri title to this automobile, in which he claimed and was allowed exemption from the Missouri use tax; (5) on May 12, 1967, intervenor applied for a Kentucky marriage license in which he stated that his address was Washington, D.C., and after his marriage on May 13, '* * * and before returning permanently to Missouri or establishing a residence anywhere else, he returned with his new wife to Washington, D.C., and established a household'; (6) intervenor did not file a Missouri income tax return in each of the years from 1962 to 1968, inclusive; (7) intervenor had interest income during the last ten years, but did not file a Missouri intangible property tax return for each of those years.

Intervenor admits he was physically absent from the state while attending law school, while working in New York City in 1961, and in Atlanta in 1962, during summer vacations, and while working in Atlanta and Washington after graduation from law school, but he denies that he intended to or did thereby abandon or lose his domicile or residence in Missouri and establish a residence elsewhere. He contends and argues that his residence in New York City in 1961 was for temporary summer employment as a law assistant in the New York County District Attorney's office in July and August; that his residence in Atlanta in 1962 was for temporary summer employment as a law clerk in the office of a law firm in June and July; that his residence in Atlanta after graduation from law school in June 1963 was for temporary employment for a term limited to one year beginning July 1, as a law clerk to the Honorable Elbert Tuttle, Chief Judge of the Fifth Circuit U.S. Court of Appeals; that his residence in Washington, from November 1964 to October 1967, was for temporary employment in a large law firm; that he sought and secured these temporary employments for the sole purpose of continuing his education and training by actual experience in the profession he intended to practice in his home state and that he at all times intended to return to Missouri, and that he did so, as intended.

He also contends and argues: (1) that his application to take the Virginia bar examination before the end of his senior year in law school was approved, not on the ground that he was a resident of that state, but on certification by the Dean and professors that he was a regularly enrolled student of the law school, a person of honest demeanor and good moral character, over the age of twenty-one years, a citizen of the United States, and that he would complete his degree requirements at the end of the school year, all as authorized by § 54--60, Code of Virginia (under these facts residence is not required); (2) that his application to take the Georgia bar examination made in January 1964 stated that he had resided at a given address in Atlanta for the preceding six months and would continue until he had resided there for twelve consecutive months, however, this statement was not inconsistent with his intent to maintain his Missouri residence but was consistent with his intent and was consistent with the fact that the law clerkship was temporary employment limited to one year and that his residence there for that purpose was temporary; that he is licensed in that state only as an inactive member of its bar; (3) that his application was based upon and his admission to the bar of the United States District Court for the District of Columbia was as a resident of Missouri and a member of the Missouri Bar, under the provisions of that court's Rule 93(e) which authorizes the admission on motion of a nonresident who is a member of the bar of another state; (4) that he purchased a 1964 Oldsmobile in Georgia, moved it from Georgia to Washington, D.C., and from there to Missouri and was issued titles by those jurisdictions showing his addresses, and was, on his application, granted exemption from the Missouri use tax, all as stated by relator, but that this exemption was authorized because, under the law, the tax was not applicable to this automobile since it had been registered in his name in another state for more than ninety days before he applied for its registration in Missouri; (5) that his application for a Kentucky marriage license does state that his residence was Washington, D.C., and that he and his wife did live in his Washington apartment after the marriage and a honeymoon trip, but that they returned to his home in Mexico, saw his family and friends again, and she joined the First Presbyterian Church there before they went to Washington where they lived for only about three months (August, September and October 1967) before again returning to Mexico to live as planned; (6) that he did not file a Missouri income tax return for each of the years 1962 to 1968 because he filed returns elsewhere and was not required by law to file a Missouri return for all these years, but was required to and did file Missouri returns for the years 1963 and 1967; (7) that he had interest income during the last ten years, but filed Missouri intangible tax returns only in the years 1968, 1971, and 1972, but not in the other years because not required by law to do so. He further contends and argues that these statements and acts were consistent with a purpose of furthering his training after law school by experience as a law clerk to an appellate judge in the federal court system and as an associate in one of the largest law firms in the nation's capital, and were not inconsistent with his intent always to return...