129 Iowa 122 | Iowa | 1905
The accused is alleged to have voted at the municipal election on March 21, 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,
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 w'ell 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. 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
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
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 in 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,
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 the necessary food be one. It is ordinarily temporary, and is 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 home of an unmarried man is where he has his 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 Robinson v. Brewster, 140 Ill., 649 (30 N. E. Rep. 683, 33 Am. St. Rep. 265), one Dwiggins kept store in the town of Eoss, where he did all his business and boarded with his father, who lived there. About a year later his father moved'into Grant township, and Dwiggins slept most of the time at his father’s home, but a part of the time at the hotel in Eoss. Ordinarily he took breakfast and supper at his father’s, but often ate at the hotel or a boarding house, kept part of his apparel there, and part at the store, and was town clerk of Eoss. The court held that his residence was in the town of Eoss, saying: “ He retained his business in the town of Eoss, claimed that as his residence and his intention was to keep his residence in that town. The intention of a party has an important bearing on the question of residence, especially where the party is unmarried and has no family as the case was here. So long as he remained in the town of Eoss engaged in his business, and treated that as his permanent abode, he had the right to cast his vote in that town.” See, also, Langhammer v. Munter, 80 Md., 518 (31 Atl, Rep. 300, 27 L. R. A. 330). Tn Warren v. Board of Registration, 72 Mich., 398 (40 N. W. Rep. 553, 2 L. R. A. 203), it
We-conclude that as between the place where one rooms and sleeps and the place where he obtains his meals, without other facts indicating the contrary, the former must be regarded as his residence. Tt follows that defendant had never been a resident of the ward at which he voted.
It will be observed that the section denounces no penalty against those voting who are disqualified merely. To render these amendable to the law, it must also appear that they acted willfully in so doing. But it could not have been
It is manifest that in all of these cases the mistake was one of law solely, and, of course, the rule obtained in each that this furnished no excuse. The distinction is noted in McGuire v. State, for, in illustration, the court said: “ If the voter believe himself to be 21 years of age, when he is not, and vote, he does not know of the existence of the disqualifying act and may on that ground be excused. But, if he knew that he is only 20 years of age, yet believes he is old enough in point of law to vote, such ignorance of the law will not excuse him. If a voter honestly believes that he has resided six months in the county before the election, and the fact turns out otherwise, he may be excused. But, if he knew that he has been only four months in the county before election, yet believes that to reside four months is, in point of law, residence enough, he shall not be excused. If a voter believe that he was horn in the United States, and it turns out that he was born in a foreign country, he may be excused. But if he knows he is a foreigner, and has not taken the oath of allegiance to the United States, but has only made his declaration of renunciation, etc., and thinks the latter in point of law sufficient to entitle him to vote, this ignorance of the law shall not excuse him; for he voted knowing a state of facts which, in point of law, disqualified him.”
This distinction was emphasized in Gordon v. State, 52 Ala. 308 (23 Am. Rep. 575), where the charge of illegal voting was based on the minority of the accused. The evidence tended to show that he supposed he was of age, and
3. Evidence of intent. III. The determination of a person’s place of residence is often difficult, and frequently depends upon nice distinctions and complicated questions of law and fact. For this reason a person who is in doubt as to where his residence is may state fairly all the facts to, and take the opinion of, persons learned in the law, and proof thereof is admissible as bearing upon his intent in casting his ballot. Such was the decision in Com. v. Bradford, supra, and is clearly to be implied from what was said' in State v. Sheeley, 15 Iowa, 404. See, also, McCrary on Election (4th Ed.) 602. Such evidence has a tendency to show that the act of voting where disqualified was without intent, and that the voter acted upon the supposition that he was a resident, and therefore entitled to vote.
As the state appealed, this ruling, not the judgment, is reversed.