164 P.2d 192 | Idaho | 1945
Appellant was elected county commissioner of the Second Commissioner District of Bonner County at the general election, November 7, 1944. Respondent contested his election under Section
From 1912 to 1942, except for a period in 1929, appellant lived near Laclede in District No. 2, north of the Pend d'Oreille River. In 1942 his father died and he moved to his parents' farm, south of the river in District No. 1, where his mother resided, and handled the property for her. October 3, 1944, appellant returned to Laclede in District No. 2.
The admitted circumstances of appellant's handling, managing and operating his mother's property; that he voted at a school election in District No. 1, April 21, 1944; that he paid taxes on personal property in District No. 1 in 1944; and that he made this statement at a public hearing held by the United States Engineers Office of the War Department at Priest River, June 19, 1943, "* * * as stated, I am a farmer living across from Laclede * * *", evidently caused the learned trial judge to consider appellant an elector of Commissioner District No. 1 at the time of the *595
primary, as the "election" referred to in Section
Section 30-602, supra, first appears in the 1887 Revised Statutes as Section 1746. It is incumbent, therefore, to determine what meaning was attached to the word "elector" at that time and period. (Wright v. Callahan,
An elector was then defined as:
"All male inhabitants over the age of twenty-one years, who are citizens of the United States, and have resided in the Territory four months, and in the county where they offer to vote thirty days, next preceding the day of election, 'if registered as in this Code provided,' are entitled to vote at any election for Delegate to Congress, and for Territorial, County, and Precinct officers, except as provided in the next section." Section 500, 1887 Revised Statutes of Idaho.
Only one election was then authorized, as follows:
"There must be held throughout the Territory, on the first Tuesday after the first Monday of November, in the year eighteen hundred and eighty-eight, and in every second year thereafter, an election, to be known as the general election." Section 465, Revised Statutes of 1887.
At this election there were to be elected "* * * one county commissioner for each of the three districts for each county * * *." Section 466, Revised Statutes of 1887.
At that time there was no such thing as a primary election such as we have at the present time, which is a 'nominating' not 'electing' election. (Section
The context of Section
The subsequent and present constitutional and statutory qualifications of an elector are not materially different3 from the first enactments so far as this controversy is concerned, and it would appear conclusive that the qualification required of a county commissioner as being "an elector of the district he represents" was intended by the legislature to apply to the possession of this qualification at the time of the general, not the primary election. (Bradfield v. Avery,
The pertinent findings and conclusions are:
These findings do not negative appellant's being an elector after his return to Laclede Precinct, October 5, 1944 or on November 7, 1944. It might be that at the time of leaving the district in 1942, he had not intended to retain any domicile in Laclede or to return, but these are not definite findings as to his status upon his return in October, if he then intended to establish his legal residence in District No. 2, because his previous intent or lack of intent would not control. He was not a newcomer as he had twice *598
previously been elected county commissioner from District No. 2. His conduct was consistent with sufficient permanency of resumed residential intent to constitute him an elector. (MacLeod v. Stelle,
The statute only requires residence for a designated length of time, but conceding intent to remain is essential, and that such intent being but a state of mind, is to be gleaned from all surrounding facts and circumstances as well as what the individual himself says; nevertheless the only positive and direct evidence with regard to appellant's intent, so far as essential, at the time he resumed his actual physical residence in District No. 2, October 5, 1944, regardless of what might have been his previous acts or intent, is to the effect that from that date on he intended to be a resident of that district, and was and had been so residing therein more than thirty days prior to the general election, November 7, 1944, all that the statute requires.
Therefore, being an elector of that district at the time of the general election, appellant was clearly eligible and the judgment of the trial court is reversed, with instructions to enter judgment in favor of appellant.
Ailshie, C.J., Budge, Holden and Miller, JJ., concur.
"2. When the incumbent was not eligible to the office at the time of the election
* * * *".
"