State v. Savre

• Decision Date: 12 December 1905
• Citation: 129 Iowa 122,105 N.W. 387
• Parties: STATE v. SAVRE.
• Court: Iowa Supreme Court

129 Iowa 122

105 N.W. 387

STATE

v.SAVRE.

Supreme Court of Iowa.

Dec. 12, 1905.

Appeal from District Court, Mitchell County; J. F. Clyde, Judge.

The defendant was indicted for illegal voting. After all of the evidence had been introduced a verdict of not guilty, by the direction of the court, was returned and the defendant discharged. The state appeals. Reversed.Chas. W. Mullan, Atty. Gen., Lawrence De Graff, Asst. Atty. Gen., A. A. Kugler, and Eaton & Salisbury, for the State.

C. D. Ellis, H. G. Bartlett, and G. E. Marsh, for appellee.

LADD, J.

The accused is alleged to have voted at the municipal election on March 27, 1905, in the First Ward of the city of Osage, when his place of residence was in the Third Ward. Section 1090 of the Code declares that “no person shall vote in any precinct but that of his residence,” and section 642, relating to municipal elections, that “each qualified elector may vote thereat who is a resident of the city or town and, at the time, has been ten days a resident of the precinct in which he offers to vote.” The penalty denounced for the violation of these statutes is found in section 4921, enacting that “if any person willfully vote who has not been a resident of this state for six months next preceding the election, or who, at the time of the election, is not twenty-one years of age, or who is not a citizen of the United States, or who is not qualified, by reason of other disability, to vote at the place where and time when the vote is to be given, he shall be fined in a sum not exceeding three hundred dollars, or imprisoned, in the county jail not exceeding one year.” The defendant cast his ballot at the place alleged, and the issues raised on the trial were (1) had his residence been in that ward during the 10 days previous, and (2) if not, was his act in voting there willful?

1. The word “residence” as employed in the election statutes is synonymous with “home” or “domicile,” and means a fixed or permanent abode or habitation to which the party, when absent, intends to return. Vanderpoel v. O'Hanlon, 53 Iowa, 246, 5 N. W. 119, 36 Am. Rep. 216;Sharp v. McIntire, 23 Colo. 99, 46 Pac. 115; State v. Aldrich, 14 R. I. 171; Chase v. Miller, 41 Pa. 403;Hannon v. Grizzard, 89 N. C. 115. As said in the case first cited, “he is entitled to vote only in the county where his home is, where his fixed place of residence is for the time being, and such place is and must be his domicile or place of abode, as distinguished from a residence acquired as a sojourner for business purposes, the attainment of an education, or any other purpose of a temporary character.” There is no absolute criterion by which to determine one's place of residence. Each case must depend on its particular facts or circumstances. Three rules, however, are well established: (1) That a man must have a residence or domicile somewhere; (2) when once established, it remains until a new one is acquired; and (3) a man can have but one domicile at a time. See 10 Am. & Eng. Ency. of Law (2d Ed.) 598. Ordinarily little difficulty is experienced in determining the residence of a man with a family for it is, save in exceptional cases, where the family live or have their home. Brewer v. Linnaeus, 36 Me. 428. See Schlawig v. De Peyster, 83 Iowa, 324, 49 N. W. 843, 13 L. R. A. 785, 32 Am. St. Rep. 308. But the occupation of single men is often such that they are seldom at the same place for any considerable time. And in determining their domicile it is of the utmost importance that the law be so construed as not to deprive them of the right to exercise the privileges of citizenship. On the one hand, the intention alone cannot fix the place of abode, nor, on the other, can conduct in stopping for a time at a particular locality. One cannot by his intention alone fix his dwelling place, and his stay may be for a temporary purpose only. As observed in Cohen v. Daniels, 25 Iowa, 88, the intention and the acts must concur. This was lucidly explained in an opinion by Wright, C. J., in Hinds v. Hinds, 1 Iowa, 36: “True it is there must be the fact of the intent. Now, what fact? We answer, the act of abiding; the fact of a dwelling; a habitation; and having this residence--having an abode--this abode, this dwelling, then, if the intent exists, the domicile is perfect. In other words, the mere intent, without the fact of residence or abiding, cannot constitute the domicile. Neither can the intent, without having the abode, the home, the place to dwell, constitute the residence. Residence, as there used, we think, has reference to the fact that the citizen or person has a place that, to use an expressive word, is called ‘home,’ with no present intention of removing therefrom. Not that the person is to remain continuously there, in order to retain his residence or domicile, but if absent, for a long or short time, with the animus revertendi, the domicile still continues.” See, also, Whitcomb v. Whitcomb, 46 Iowa, 437;Fitzgerald v. Arel, 63 Iowa, 104, 16 N. W. 712, 18 N. W. 713, 50 Am. Rep. 733;State v. Minnick, 15 Iowa, 123. Mere bodily presence or absence cannot have controlling effect in determining residence when once established. Many qualified voters spend most of their time in pursuits out of the ward or even the state. Persons who travel for business or pleasure for long or short periods do not lose their residence by such absence. But bodily presence ordinarily is essential in effecting a domicile in the initiative. One might intend to dwell in a place as his permanent abode, and yet never see it. So he might dwell there without thought of remaining. In neither event would he be a resident within the meaning of the election laws. There must be the act of abiding without the present intent of removing therefrom. As said in Story on Conflict of Laws, § 41, there must be to constitute residence “an actual home, in the sense of having no other home, whether he intends to reside there permanently, or for a definite or indefinite length of time.” The vital inquiry, then, in determining the residence of a person always, is where is his home, the home where he lives, and to which he intends to return when absent, or when sick, or when his present engagement ends. In the case at bar it was made to appear from defendant's answers, when at the polls, that he had obtained two meals a day at the boarding house of Mrs. Henderson situated in the First Ward, and that his offices were located in the Third Ward, and that he had been in the habit of voting where he obtained his meals. Thereupon his right to vote was challenged, and he took the usual oath. On the trial it developed that he was a member of the firm of Hanson & Savre, engaged in the practice of medicine, having offices on the second floor of a building in the Third Ward. In these was kept the firm's medical library and a stock of medicines. There were two waiting rooms, a room for electrical treatment, two consultation rooms, a room with hot air apparatus, and a bathroom. Both Hansen and defendant were unmarried, and slept in a bed in the room where the electrical apparatus was kept. It contained no conveniences, save for sleeping. In defendant's consultation room were the usual equipments of such a place, but none for housekeeping. He had no trunk, but passed the usual office hours in the rooms, and spent his evenings there when not otherwise engaged. They had occupied these offices three years, during which time the defendant had taken his meals at as many different places. In 1903 he had procured them at Mrs. Collin's in the Fourth Ward, and later at the restaurant of a hotel in the Third Ward, and then at Mrs. Henderson's. This was in the Third Ward until the early winter, when she moved into the First Ward, where she remained until shortly before April 1, 1905, when she returned to the Third Ward. The defendant purchased meal tickets--that is, tickets entitling him to 21 meals whenever he wished to eat--and took dinner and supper at Mrs. Henderson's when not out of town. Only such time was spent as is necessary and ordinarily incident to eating at a boarding house, such as reading a paper when waiting to be served or for a moment after eating. He seldom ate breakfast; but, when he did, he obtained it at a restaurant in the Third Ward. The evidence was such as to leave no doubt of defendant's place of residence. It was not purely a matter of intention, as he had been advised. A person cannot live in one place and by force of imagination constitute some other his place of abode. The intent and the fact, as already stated, must concur. Surely a man's home is not an eating or boarding house, where he stops merely long enough to obtain food, be this two or three times a day. It has none of the essentials of a home, unless that of supplying necessary food for one. It is ordinarily temporary, and changed according to convenience or taste of the patron. Defendant tested three different places in as many years, and each in a different ward of the city, and to say that in making each change he established a new domicile is ridiculous. The rather is the home of an unmarried man where he has his room, rooms in which he keeps such personal effects as he has, where he rests when not at work, and spends his evenings and Sundays. The defendant made the rooms of his office his home. Even though he testified that he had intended to make his home where he took his meals, he had never effectuated that purpose, for he continued to live at his offices. What he doubtless meant was that he intended to do so for the purpose of voting. But the actual place of residence controls, and one cannot be improvised by merely forming an intention to claim it elsewhere.

In Smith v. Thomas (Cal.) 52 Pac. 1079, one Phoebus had been a wood chopper for 11 years, but whenever out of work or sick he returned to Neal's place, in Vasalia, which he called home, and he was adjudged a resident of the ward...