Wilson v. Hoisington

• Court: Montana Supreme Court
• Writing for the Court: ANGSTMAN, Justice.
• Citation: Wilson v. Hoisington, 110 Mont. 20, 98 P.2d 369 (Mont. 1940)
• Decision Date: 24 January 1940
• Docket Number: 7996.
• Parties: WILSON v. HOISINGTON.

98 P.2d 369

110 Mont. 20

WILSON v. HOISINGTON.

No. 7996.

Supreme Court of Montana

January 24, 1940

Appeal from District Court, Lincoln County; J. E. Rockwood, Judge.

Proceeding by J. P. Wilson against Chester O. Hoisington to determine whether defendant is qualified to hold office of county commissioner. From a judgment for contestee, contestant appeals.

Affirmed.

E. M Child and James B. O'Flynn, both of Kalispell, for appellant.

Grubb & Rockwood, of Kalispell, and Marshall Murray, of Libby, for respondent.

ANGSTMAN Justice.

This is an appeal by contestant from a judgment in favor of contestee. The question involved is whether contestee is qualified to hold the office of county commissioner of Lincoln county. The question arises from the following facts:

Hoisington settled upon a homestead near Troy in Lincoln county in August, 1917, in what is now County Commissioner District No 2. He there remained until August 7, 1936, at which time he accepted an appointment as deputy sheriff and went to Libby which is in County Commissioner District No. 1. During that month he married a resident of California and established a home in Libby, where he continuously maintained his home until the time of the trial of this action.

After the registration lists had been cancelled, pursuant to Chapter 172, Laws of 1937, under the mistaken belief that they were obliged to do so, Hoisington and his wife registered as electors in the Libby precinct on January 3 1938. Later, and on March 8, 1938, upon learning that they could maintain their voting residence in the Troy district, they cancelled their registration in the Libby district and re-registered in the Troy district.

We must under these facts regard contestee as a qualified elector at all times in the Troy district. When he moved to Libby he intended to remain there only so long as his position of deputy sheriff continued, and he always entertained the intent to return to his home in the Troy district when his employment as deputy sheriff ceased. He frequently returned to his home in the Troy district to help look after his property interests which, during his absence, were cared for by his father who lived on the property.

At the general election on November 8, 1938, he was elected commissioner from District No. 2. This proceeding questions his right to hold the office because of the provisions of section 4, Article XVI of our Constitution. That section, in providing for the election of county commissioners, provides that they "shall be selected from the residents and electors of the district or districts in which the vacancy occurs, *** provided, however, that no one shall be elected as a member of said board, who has not resided in said district for at least two years next preceding the time when he shall become a candidate for said office."

The question before us is: What is meant by the word "resided" as used in this section? Other sections of the Constitution shed some light upon this question. Section 2 of Article IX provides who are qualified to vote and, among other things, contains this provision: "Second, he shall have resided in this state one year immediately preceding the election at which he offers to vote, and in the town, county or precinct such time as may be prescribed by law." The very next section provides that "for the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the state, or of the United States, nor while engaged in the navigation of the waters of the state, or of the United States, nor while a student at any institution of learning, nor while kept at any almshouse or other asylum at the public expense, nor while confined in any public prison."

Section 7 of the same Article, when dealing with the right to hold office, provides as follows: "No person shall be elected or appointed to any office in this state, civil or military, who is not a citizen of the United States, and who shall not have resided in this state at least one year next before his election or appointment." Section 11 of the same Article provides in part as follows: "Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in this constitution," etc.

The effect of section 11 of Article IX, except as otherwise provided in the Constitution, is to make those qualified to vote for an officer eligible to hold the office. This was so held in the case of State ex...