State ex rel. Ramey v. Dayton

• Decision Date: 30 April 1883
• Citation: 77 Mo. 678
• Parties: THE STATE ex rel. RAMEY, Prosecuting Attorney, v. DAYTON, Appellant.
• Court: Missouri Supreme Court

77 Mo. 678

THE STATE ex rel. RAMEY, Prosecuting Attorney,

v.DAYTON, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

REVERSED.

Pike & Pike for appellant.

No actual change of domicile or inhabitancy. Hart v. Horn, 4 Kas. 232; Hairston v. Hairston, 27 Miss. 721; Maddox v. State, 32 Ind. 111; Hindman's Appeal, 85 Pa. St. 466. Conduct of business in Kansas City did not constitute a removal. Roberts' Will, 8 Paige 446; Walker v. Walker, 1 Mo. App. 404; Re. Fitzgerald, 2 Caines 318; Crawford v. Wilson, 4 Barb. 504. Going out of state, county or town for a purpose and not taking up a permanent residence elsewhere, no removal. Sackett's case, 1 Mass. 58; Abington v. Boston, 4 Mass. 312; Walker's case, 4 Mass. 556; Granby v. Amherst, 7 Mass. 1; Lincoln v. Hapgood, 11 Mass. 350; Chariton Co. v. Moberly, 59 Mo. 238; Johnson v. Smith,43 Mo. 501; Bartlett v. New York, 5 Sandf. 44; Carey's Appeal, 75 Pa. St. 201.

H M. Ramey for respondent.

MARTIN, C.

On the 31st day of October, 1877, the prosecuting attorney of Buchanan county filed in the circuit court of that county an information in the nature of a quo warranto against the defendant, alleging that prior to the 15th day of August, 1877, the defendant was a duly elected and qualified member of the board of councilmen of the city of St. Joseph, for the second ward of said city, and that on the last named date he removed from said city of St. Joseph to Kansas City, and changed his domicile to said latter place, and thereby vacated his said office; that notwithstanding said vacation of his office the defendant continued to exercise the functions thereof. The defendant answered the information under protest, admitting his election and qualification to the said office, and denying that he had removed from the city or changed his domicile, averring that he was a resident of the city of St. Joseph, domiciled in the second ward. A reply was filed putting the new matter of the answer in issue.

At the trial the following evidence was submitted: Buckingham testified: That Mr. Dayton told him that he was going to Kansas City; he did not say he was going to remove his family, but might do so in January; did not remember the words used by Dayton, only the substance; Dayton said he was going into business with Tootle, Hanna & Co. James E. Roberts testified: That one Sunday morning before suit was brought, he remarked to Dayton that he heard he had gone to Kansas City, and he said he had; asked him if he had taken his family down, and he replied that he had not, but would do so; did not say why or for what purpose he had gone to Kansas City. Ex-Governor Woodson testified that he also remarked to Dayton that he heard he was going to Kansas City, and Dayton told him he was going in two or three days, but that his family would remain during the winter, or until January. Mr. Thompson testified to a similar conversation, and so did Mr. Piner. Defendant admitted that he had not been engaged in business in St. Joseph since August 15th, 1877, but had been since that date engaged in business in Kansas City. This was all the evidence produced by the relator.

Dayton testified: “I am now doing business in Kansas City, Missouri, with Tootle, Hanna & Co.; am employed by them on a salary; my home is now in the second ward of this city (St. Joseph), and I have resided there eleven years. I come home every Saturday night; I have no other home than in the said second ward, St. Joseph; have no fixed intention of going to Kansas City to live, and do not know that I will be engaged in business there longer than January 1st, 1878; I have a family which now resides, as it has for eleven years, in said second ward of St. Joseph.”

Cross-examination. “Went to Kansas City August 15th; arranged with Tootle, Hanna & Co, about that time; made no permanent arrangement with them beyond a fixed salary until January 1st, 1878; I am just trying the business with them; if we suit each other I may remove there. I stop at the hotel in Kansas City, and come home to my family every Saturday night. I probably told Mr. Roberts what he said I did.” To the court: “I went to Kansas City to make an experiment with Tootle, Hanna & Co.; I had no fixed intention of going there to remain permanently; if I could agree with them and make terms to suit, I intended to stay there; I had no fixed intention to abandon my home here; my going there was only an experiment; did not leave here with the purpose of remaining away except conditionally; but if I could make agreeable business arrangements with Tootle, Hanna & Co. would go there to live.” This was all the evidence.

The court found the issues for the plaintiff, and gave a judgment of ouster. The defendant appealed from this judgment.

Since the decision of the case of State ex rel. v. Fitzgerald, 44 Mo. 425, in which it was held that a proceeding in the nature of a quo warranto would lie against a person exercising the rights and privileges of a member of the council of the city of St. Joseph, no doubt can be entertained about the legality of the remedy here invoked.

The only question presented to us for consideration is, whether the evidence in the record was sufficient to sustain the judgment of ouster appealed from. The charter of the city of St. Joseph contains the following provision: “If any...