71 Mo. App. 32 | Mo. Ct. App. | 1897
This is an original proceeding in quo ivarranto, instituted in this court, whereby it is sought to oust the defendant Banta from the office of alderman for the second ward of Westport, a city of the fourth class. Banta’s eligibility to the office is attacked on the alleged ground that at his election in April last he was not, and is not now, a resident or inhabitant of Westport, or of the ward he represents.
The qualifications for aldermen in cities of the fourth class are set out in sections 18 and 23, Laws 1895, pages 69 and 70; the first providing that “no person shall be an alderman unless he be at least twenty-one years of age, a citizen of the United States, and an inhabitant and resident of the city for one year next preceding his election, and a resident of the ward from which he is elected;” and said section 23 provides that
On the part of the prosecution it is claimed, that a few months before the last spring election in Westport, Banta moved from said second ward and from said city to, and has ever since resided in, Kansas City. Defendant denies that he changed his legal residence, and alleges that he only took temporary quarters for the winter and spring at Kansas City, and that his permanent abode remained at Westport.
Without detailing the evidence submitted to us, we find the facts to be, in substance, as follows: Defendant Banta, a young man thirty-one years of age, has been practically reared at his father’s house in Westport. While residing with his father he, in late years, occupied a room which was furnished at the young man’s expense. He here made his permanent home, and during the last five years has served as alderman from the second ward, being elected, as already stated, the third time at the last city election. In June last Banta was married, but continued as before to occupy the room at his father’s (and which he had furnished), until in November, when he and his wife began the occupancy of a small four-room flat in Kansas City. . This was, however, for only a temporary purpose, since the evidence clearly shows that he then had in view the erection of a house on a lot he owned near his father’s, and which he intended as his future residence. He also retained the furnished room at his father’s, where some of his clothing was kept, and in which he and his wife lodged from one to three nights in every week. The uncontradicted evidence also shows that during the entire time Banta and his wife held the flat, he continuously claimed Westport as his.
Before going into the Kansas City flat, Banta consulted the city attorney of Westport, as well as another lawyer who had been mayor, telling them of the proposed occupancy of the flat, and that he only desired to use it for the winter and spring, and that he did not intend to change his residence, and they both advised him that such temporary occupancy would not affect his citizenship in Westport. In addition to all this the name of the defendant seems to have been presented to the authorities at Washington for appointment as postmaster at Westport, and the application, numerously signed, is now on file.
These and other matters detailed in the evidence satisfactorily prove that the» occupancy of the Kansas City flat was only temporary, and that Banta, all the time, considered Westport his permanent habitation and residence. Nor is there any evidence to the contrary, save and except the circumstance that the flat was taken under a written lease for a yeaiq But this is counteracted by Banta’s undisputed testimony that he had an understanding with the lessor that the flat was only taken for temporary use and might be surrendered at the close of the winter or spring.
In view, now, of these facts, we are clearly of the opinion that at the date of the defendant’s election, prior thereto and since, he was, and continued to be, an inhabitant and resident of the second ward of the city of Westport. Habitancy and residence, as used in the statute before quoted to define the qualification of aldermen for cities of the fourth class, have the
In State v. Sanders, supra, in treating the question of the eligibility of a speciál judge, the court says: ‘ Tt does not appear that when he ‘moved’ to Oregon his intentions Avere such as to change his residence from this state to that. A mere absence from this state, without an intention of making his residence elsewhere did not effect a change of residence. Scoville v. Glasner, 79 Mo. 449.” So, in the Dayton case above cited, the court, while speaking in reference to a case somewhat similar to this, uses the following language: “To give him (the St. Joseph alderman) a domicil in Kansas City, two things.must concur. It is not sufficient that he is there a greater portion of his time; his stay there must be with the intention of making it his home or domicile. Physical stay or residence in any particular place will not, of itself, constitute a domicile. The physical fact of staying must be accompanied with the mental determination of making a home or domicile in the place where the party stays or abides.”
a judgment will be entered for the defendant.