114 So. 711 | La. | 1927
Lead Opinion
The Democratic parish executive committee for the parish of St. Bernard, defendant herein, called a primary election pursuant to the provisions of Act 97 of 1922, the primary election law, for the purpose of nominating a party candidate for the office of sheriff of St. Bernard parish, and Adam Melerine, plaintiff herein, in due form and in due time, filed notice with the committee of his intention to become a candidate.
One of the members of said committee, in due form and in due time, filed an objection to plaintiffs candidacy on the ground that plaintiff was not a duly qualified elector of the parish of St. Bernard because "Mr. Melerine has no domicile in the parish of St. Bernard, but, on the contrary, maintains a domicile in the parish of Orleans." The committee heard the objection, sustained it, and declared plaintiff disqualified.
Plaintiff then appealed from the decision of the committee to the competent court, to wit, the Twenty-Fifth judicial district court, in and for the parish of St. Bernard. The district court reversed the decision of the committee and declared plaintiff duly qualified. *858 The committee thereupon took an appeal to this court.
The constitutional provision relied upon has not the remotest application to contests involving primary election contests, as a mere reading thereof will show. It relates exclusively to contests involving the registration of a voter and the striking from the rolls of a name illegally thereon; wherein, in certain cases, the verdict of a jury shall be final. As to the proposition that the primary law provides for no appeal when the decision of the committee is reversed, the answer is that section 11 provides that in such cases the procedure shall be the same (as far as practicable) as is provided in section 27, and section 27 provides that in contests over primary elections, the partycast in the lower court shall have the right to appeal. As to the first proposition advanced, it is a manifest non sequitur, since the Legislature has provided otherwise as we have just said. The motion to dismiss is without merit.
"The term, `actual bona fide resident,' * * * cannot reasonably be interpreted to mean that, in order to acquire, and, still less, to retain, such status, one must remain continuously in the town, or upon the premises, of the residence, and the status described is not therefore affected by temporary absences, occasioned by considerations of duty, business, health, or pleasure, unless, being voluntary, they extend beyond prescribed periods, or, are accompanied by the acquisition of residence elsewhere." Caufield v. Cravens,
138 La. 283 , 70 So. 226, citing Estopinal v. Michel,121 La. 879 , 46 So. 907, 19 L.R.A. (N.S.) 759, and State ex rel. Hodges v. Joyce,128 La. 434 , 54 So. 932.
In Hall v. Godchaux,
"An `actual bona fide resident,' * * * need not have occupied his place of abode every moment during the required period of time, but must have maintainedsuch a relation with the place or premises as willentitle him at his will, without making newarrangements therefor on each return, to occupy suchplace whenever his necessities or pleasure required,without asking permission of some one else." (Italics ours.)
And when the conditions are as above stated, "the question isone largely of intention." Caufield v. Cravens, supra.
The question is, Are the other conditions present necessary to make him "an actual bona fide resident" of St. Bernard parish? *861
"We are ready to admit that there was a house rented by the month at 5906 Burgundy street [in the parish of Orleans] where, for a part of the time, the plaintiff, and particularly his wife, resided; and where all of the customary municipal services, telephone, electricity, gas and water, were installed on applications made out either in his [plaintiff's] name or in the name of Mrs. Melerine [plaintiff's wife]. * * *"
In explanation of which it may be said that by "part of the time" was not meant that the house on Burgundy street had been rented and resided in for only a part of time since plaintiff's marriage, but that, although the house had been rented ever since plaintiff's marriage, he and his wife spent only part of their time therein.
The only testimony to the contrary (if it can be called such) is that of several witnesses who testify that they have seen plaintiff and his wife at the Burgundy street house quite a number of times in the two years since their marriage.
The electric light statement for the house on Burgundy street was shown to an electrical engineer in the employ of the light company, to which he testified as follows (Tr. 149):
"The statement here would seem to indicate that there has been some electricity consumed during every month [July, 1925, to October 1927]. * * * This total consumption here for [by] the year is not as large as most of our consumers in New Orleans consume. Our average customer here consumes 380 kilowatt hours a year; that is, large and small and everything thrown in. This record shows about 220 a year. The average [per month] for 220 a year would be about 18 kilowatt hours per month. * * *"
We do not think that from that statement alone, without knowing the capacity and number of lights used by plaintiff and the number of hours the lights burned each night he was there, any one could possibly conclude how many nights he spent in that house each mouth. And hence the statement alone throws no light whatever on this case; for as the district judge observed, some people like "bright lights around the house and everything lit up," and others do not. And some people use electric heaters for warmth, and others use only coal, or oil or gas; some *864 people use electric fans and irons and sewing machine motors and the like, and others do not. But a monthly bill for electricity indicates only the amount of current consumed for the month without distinguishing the use to which it has been put. So that a mere showing that plaintiff consumed 18 k.w.h. per month, standing alone, does not even suggest, and far less shows, how many days a month plaintiff occupied the Burgundy street house.
And our conclusion is that we would not be justified in rejecting, on such a speculative showing as this, the positive testimony of so many witnesses that plaintiff and his wife spent less than one-fourth of their time in this Burgundy street house, and more than three-fourths of their time in the house at Violet.
Dissenting Opinion
The evidence, in my judgment, sustains the committee's ruling that Mr. Melerine was not an "actual, bona fide" resident of the parish of St. Bernard. He has had his residence at 5906 Burgundy street, New Orleans, for over two years — since July, 1925. He paid the *865
rent regularly, at $35 per month, paid the electric light bills, and the water bills, etc. The lights burned regularly, according to the records of the New Orleans Public Service, Inc., and it is admitted that no one else but Mr. and Mrs. Melerine ever occupied the premises. There is a difference between the word domicile, which means the place where a man shall be sued, and the word residence, as meaning the place where a man may vote or hold political office. A man may maintain a civil domicile by his expressions of intention; but his place of residence is required by the Constitution to be actual and bona fide. I have no doubt that Mr. Melerine was sincere in his intention to preserve his right to vote in St. Bernard parish, while he maintained his place of residence in New Orleans — just as Judge Godchaux intended to preserve his right to vote in New Orleans while he maintained his place of residence in Pass Christian, Miss. But the question as to what is a man's place of residence — with regard to his right to vote — is determined by section 1 (a), art. 8 of the Constitution. Hall v. Godchaux,
For the reasons stated, I respectfully dissent from the decision overruling the judgment of the committee and affirming that of the district judge.