The Bismarck Tribune Newspaper, January 28, 1935, Page 6

THE BISMARCK TRIBUNE, MONDAY, JANUARY 28, 1935 | Relator Says Constitution Makes Moodie Ineligible’ CONTENDS GOVERNOR | EDITORS NOTE: Se ae yk ee 7 T 7 the First National Bank of Buffalo,' election and had at that time taken of which Mr. Stoetling was a direc-' with him all of his effects and had tor. The defense in the case was/ retained no room at 5 domicile must be clear and expret hig business or professional ;that the property was a homestead,; 4. One Rowe was held to have a nett Mf in that the foreign judgment alleges relator and the respondent in the so that its readers may have a bias or partisanship. On these two pages The Tribune presents the briefs for both the Moodie qualification case. It does full grasp of the legal points in- volved as well as the facts presented in evidence without shade of from August, 1929, down to April, CANNOT MEET TEST Claim Election Null and Void for the distinction between the words “domicile” and “residence.” Even Though Governor | °° Got Most Votes Consideration of the Various Consti- tutional and Statutory Require- This is an action and proceeding in the nature of quo warranto to de- termine the title and eligibility of one Thomas H. Moodie to the office of governor of the state of North Dakota. The jurisdiction of the court to fssue its writ arises under the provi- sions of Section 87 of the Constitu- | ments in North Dakota With Re- ference to Residence as a Qual- ification for Office Section 28, of the Senators: “and have been a resident of the |state or territory for two years next preceding his election.” This in addition to the require- Constitution: the rule is to let the more tangible domiciliary acts have the greater weight in determining the true domicile. A man may spend but a small portion of his time at his Gomicile, and yet not in the least im- pair its status as his true domicile. Long sojourn elsewhere, accompan- ied by ordinary acts, do not militate against it. In the case at bar the Situs of occupation and of property coupled with the intention to return fixed the Ernest farm as appellant's real domicile.” The court makes this incidental comment about the fact that the plaintiff improperly voted in Fargo: ment that he has been a qualified “Had appellant's vote in Fargo in elector in the district. Section 24: Representatives: “And have been a resident of the ton, or, in the event the court pro- ceeds under the declaratory forum statute, its jurisdiction arises under} the spring of 1887 been challenged and refused, and the question of his right to so vote been before the lower and therefore exempt. The facts jeoncerning residence: shown to sup- Port this contention were that the defendants had lived in the house in jquestion from 1906 until about three tyears before March, 1918, when the house was moved from Expansion to Hazen. The family lived in the house until 1921 at Hazen, when they moved to @ farm near Expansion. During 1922, 1923 and 1924 the house was occupied by a tenant with one or itwo of the children of the defend- jant’s family living in it while at- tending school at Hazen. | Strong Circumstantial Proof | In 1922 both the husband and wife iTegistered with the assessor giving their residence as the ranch near Expansion. They voted there in 1922 and at a primary in 1924. As to this Portion of the testimony the court in Pied in its opinion the following “While registering and voting in a lighted Place is not conclusive it residence in Larimore. He had work- ed for one Pifer and went wherever the latter sent his work gang. He jalways returned to Pifer's home in | Larimore. In the summary of the case the court says: | “The question of residence must be | determined from all the facts and | circumstances surrounding the per- | son, as related to his residence and |the intention must be accompanied |by acts in harmony with the declar- that the change of a legal domicile is @ grave and serious matter, and the court should not deem it changed upon mere critical circumstances.” In re Langer Estate, 56 N. D. 793; 219 NW 362. Again Cites Nuessle Opinion of Justice Nuessle. The appellants challenge the juris- diction of the probate court in Bar- nes county in this matter. The decedent had homesteaded and lived in Cass county for many years prior to 1925 at which time he went to the cupation and has a home or nent residence is his domicile.” (533) Pickering vs. Winch 87 Pac 763. This was a will contest in which deceased had residences in two states but had his business affairs and exercised political rights in Oregon jand had lived in the residence in California for reasons of health only during the last few years of life. | Held, Oregon was the domicile, The jresidence in California was mere jtemporary and for health reasons. The court said incidentally: his domicile to be in the state of New York whereas the defendane says he had no such domicile. De. fendant made no allegation of fant tending to prove his domicile else- where. Assuming the difference to exist between residence and domicile, “Yet the place of residence is the domicile unless something is shown to vary the ordinary and general rule. Here the record shows resi- dence in this state at the date of service. That residence is supposed jed intention, and notwithstanding | home of a son in Barnes county, at {was to make his home in a certain to bother him and for the purpose place. If his acts are of a character of being near his wife who was se- |to negative his declarations or be in-, riously ill with an incurable malady consistent with them, it is clear that! and who had been placed in a Valley the Aaya baal ie Dab gee by his; City hospital. The decedent him- testimony as Intent.” | self was 79 years of age and incapaci- Mention Bismarck tated physically. Upon going to Val- one may testify that his intentioniwhich place there were no children lish a domicile) it is true, may be in- Case O'Hare vs. Bismarck Bank, 45 ND 641; 178 NW 1017. This is an action to quiet title to property which the petitioner alleges jley City the household furniture at {the home was auctioned off and all |Personal property was taken to) Barnes county. | “This intention (necessary to estab-/to be decmed the domicile unless some facts are shown to negative the inference. None such appear, and we cannot presume or imagine them ter and accompanied by such indices|in the face of the facts shown from. of a permanent home that the law/which the natural inference is that will apply to the facts a result con-|the defendant's domicile was in this trary to the actual intention of the|state within which he resided.” party. Thus, one cannot make a Permanent, fixed, commercial resi-| Residence of Family or Married Man; ferred from circumstances, and the residence may be of such @ charac- dence with all the surroundings of a jPermanent home in one place, and domicile in another, by ® mere me! Weight and Sufficiency of Such Evidence to Show an Intent to Establish Domicile. sin si circumst \- ” 0 Years next De PaES co proof of resi-|was a homestead of @ third party! ‘The court held that on all the evi-|tal act.’ “There is also a presumption of Section 7712 a 1, Supplement to the/state or territory for court as the gravamen of this case, | gence» Bscoeecer Serres eoesen = UdER4BRDNOUKEAELsO2 702. SyE2s53 te a ¥, n e SIS4 RIRWOTHRERS Rone REOWZOOG e882 2684 19 2 gOassp compiled laws, 1925. ‘The challenge to the eligibility and title of Thomas H. Moodie rests primarily upon the provisions Section 73 of the constitution, which provides as follows: “Sec. 73. No person shall be eligible ipreceding his election.’ jit. must be decided against him.” |" Section 82 deals with the other! (Page 435). \constitutional state officers who were! McCarthy vs. Thornton, 38 N. D. of|required only to have the qualifica- 551; 145 NW 499. ‘tions of state electors. Appeal from an order denying Section 94, Supreme Court Judges: |change of venue: “... nor unless he shall have re-) After construing Section 7418, Com- sided in this state or the territory! piled Laws of 1913, as to when a de- to the office of governor or lieutant governor unless he be a citizen of the United States, and a qualified elector of the state, who shall have attain-| of Dakota three years next preced-!mand for change of venue may be jing his election.” |filed, the court considered the prob- Section 107, District Judges: lem of whether the defendant was ed the age of thirty years, and who| “... nor unless he shall have re- in fact a resident of Williams coun- shall have resided five years next|sided within this state or the terri- ty, North Dakota, as to entitle him preceding the election within the tory of Dakota at least two years Nex:/to make a demand for change of ‘State or territory, nor shall he be|preceding his election. . venue in a suit brought in Stark eligible to any other office during} Section 121: Elective Franchise: | county, North Dakota, ‘The only evi- the term for which he shall have! “ ... who shall have resided in/dence of the existence of a domicile been elected.” the state one year... next preced- in Williams county was an affidavit ‘This challenge assumes that one of |ing any election, shall be deemed @!hy the defendant in which he merely the requisites of eligibility is residence |qualified elector at such election.” ‘asserts he is a resident of Williston within the state for a period of at| In this connection note Section 125,! without giving any facts. The plain- Jeast five years next or immediately |of the Constitution which specifical-'titr makes an affidavit to the effect preceding the election. The election ly enumerates the nature of the busi-'that he knows defendant and knows involved was held on the 6th day of|ness requiring the absence of an’ that his domicile is in Iowa, and that ‘November, 1934. lelector which will not disqualify him.|defendant travels much, selling ‘The fact investigation involves the] — jhorses. There were also two letters question of whether or not Moodie,|Cosideration of the Statutes With in evidence from bank cashiers in within the meaning of the word “re-| Reference to Residential Require- | Williston which indicated the writer sided” as used in the foregoing con-| ments ;did not know of the defendant, stitutional provision did reside with-! Section 19 of the Political Code— Affidavits Not Enough in the state of North Dakota for a! Eligibility to Office: “Every elector) period of five years immediately pze- is eligible to office for which he is that these affidavits do not conclu- ceding the 6th day of Novembcr, 1934.;an elector, except when otherwise jsively prove the residence of the de- It is conceded that Moodie obtained jally provided; and no person is/fendant a the highest number of votes a: the le who is not such an elector”; “If con election, and the state c at sion there is, it is to be ds as he gives no facts, ‘a resident of the own affidavit ates he was @ resident months next preced-) but merely g jof Williston. Homestead—Section 5605: “in which) Since the defendant made the de- ithe homestead claimant resides. jmand for change of venue he was re- Limitations of Actions: Section;quired to show domicile and failed |7384; “and resided out of this state|to sustain his burden of proof. remained continuously absent, Burke County vs. Oakland, 56 ND Analysis in Consideration of Section | therefrom.” 343; 217 NW 643. 73 of the Constitution Sections 2300 and 2301. | Decision by Judge Burke in 1928, An analy ection 7417. This is an action to determine tion invol for Determining Residence—jresidence of an indigent person un- i Code, ider Section 2500, Compiled Laws of ed that subdivision 1 > @ residence © ithe plaintiff be te for twelve the election for the office null and) void: Wall ys. Jenson, 36 N. D. 251 NW 403 Ann. Cases, 1918, B. 982. ceding” that’ the residence was in Thorsen township. The lower court found as a fact that the indigent person had estab- lished a domicile in Thorsen township filing and perfecting a homestead im in that township and that sub- only step or nearest in order, degr sion, immedi jacent, imme: became a transient, visiting through- out Burke county, and also places in Montana, The lower court was here sus- tained on the theory that the domi- cile was not lest until a new one was acquired and that the indigent party in this case had not established @ w domicile. “It (residence) is changed under Subdivision 7, of Section 14, Compiled s of 1913, by the union of act and tent; that is, moving from one place of residence to another with the intent to abandon the old resi- dence and establish a residence at a s. Board, 5 N. D. 2 which defines the domicile as fol- tra the ai distinct “domicile.” Spe: two words are by all ities conceded to be separate in their meaning 0 synonymous. But, the authorities sometimes hold in considering th relation in which the word “resided or “residence” is used and the pur- pose, that in some ances it may be synonymous with the word ‘aomiciie.” 4 sideration being ¢ Attention {s directed to the facti:yte and constitutional provisi without the iz there 3 41-43. be observed that under the ional provisions and that the resided” are inet. purposes © residence. . . - McEwen vs. McEwen, 50 ND 662; 197 NW 862. * Cites Nuessle Opinion of the statutor ‘The court held: “We are satisfied | Divorce—Section 4398 requires that found in defendant's and appellant's | 1913, and appealed from a decision; sequently he rented his property and} new place, is in law a change of NW that the original draft of this provi- sion of the Constitution required a residence for two years next preced- ing the election. See Journal of the Constitutional Convention, 1889, P. which they are used and the purpo:e |intended to be effected. {Illustration of North Dakota Cases Opinion by Justice Nucssle in 1924. This is a probate proceeding in which the cross-petition filed set out a will of a later date than that orig- | Upon the Question of Domicile and inally sought to be probated which 133 and 281; Debates of the Consti-! pesidence. Teeny etiee te oseciia tn Gana’ The court held that the case must, be determined upon the acts of de- fendant which in the present in- stance constituted an estoppel in pais. The homestead law may not be construed to permit a fraud after recovering the consideration from the first transaction. It would be a fraud upon the first mortgagee to allow the defendant to defeat his security. Graham vs. Graham, 9 ND 8S; 81 NW 44, Action for divorce, with ju nt for defendant. sani The court specifically states they will consider only the question of domicile and found as a fact that the plaintiff was not a bona fide resident as required by the statute ;governing divorce actions. Plaintiff lived in Fargo two months ;upon coming to the state, and Wahpeton five months, immediately \thereafter. The court stated that the |promptness, even “prematureness” of bringing the action strongly tended ito show that the plaintiff merely in- tended to take advantage of the lib- erality of the North Dakota divorce jlaws, Plaintiff testified as to her in- tent to make North Dakota her permanent residence. Substantial facts indicate that she had family |connections, household furniture and ; books in the states of New York and New Jersey. One witness from New jJersey put in evidence plaintiff's de- claration on leaving New Jersey for North Dakota that the plaintiff would be gone three or four months. Held, no residence was established in North Dakota by the plaintiff, Only Transient Sojourn “We are constrained by the evi- dence to hold that plaintiff's sojourn in this state has been transient mere- ly and for the purpose of establish- jing a fictitious residence for divorce | Purposes only.” “... If one comes into this state for the sole purpose of acquiring a pretended residence ... all the time intending to remove from the state {and live elsewhere as soon as the idivorce is granted—such pretended residence 1s not sufficient to give the courts of this state jurisdiction to grant a divorce. “In any case where intent is nec- essary to be ascertained, not alone from the evidence of the party whose intentions are being investigated, but jfrom all concomitant facts bearing jupon the question. The most direct jand positive statements of intention may be entirely overthrown and dis- proved by circumstances showing that ithe statements are untrue, “The existence of a mere purpose ito go elsewhere to live is not, in our ‘opinion, sufficient to defeat a legal |residence in the place where the per- {son is actually domiciled.” seas vs. Cass, 27 ND 357; 146 This was an election contest hav- ing to do with the office of mayor of Larimore. The lower court ruled for the respondent or contestee. The decision here vacates the judgment of the lower court and rules that the election was “no election,” each can- didate receiving the same number of votes. The ‘canvassing board gave the complainant 113 votes and the against whom judgments had been docketed by the defendant bank. The facts bearing upon the con- tinuance of residence of the third party to the homestead and as to the jvalidity of the claim for homestead exemptions were these: the property had been rented to tenants who oc- cupied the home for twenty years prior to the commencement of the suit with the exception of one small room on the second floor in which a conglom- eration of old furniture was held for the third party. The court refused to believe the testimony that the homesteader had slept in the dreary room one night a month for the pur- pose of maintaining residence. Held, no residence existed. Smith vs. Smith, 7 ND 404; 75 NW 783. An action for divorce. Trial de nove on the record. The court considered only the jur- isdictional question of the residents of the complainant. ‘The only facts tending to show that the complainant had a residence in North Dakota were these: that he ar- rived at Jamestown in October, 1895, and stayed there about seven days while consulting an attorney con- cerning the intended divorce action, after which he returned to Washing- ton where he had been employed since 1871 in the Treasury Depart- ment, while claiming residence and jvoting in New York state. This di- vorce action was commenced in March, 1896, and complainant came back to this state in July, 1896. Com- t testified it was his inten- tion when first coming to Jamestown to make that his permanent resi- dence. Held: No residence establish- ed, and the court was without juris- diction: “The evidence, viewed as & whole and considered in the light thrown upon it by the surrounding circum- stances of the case, irresistibly leads ‘us to conclude that the plaintiff came into the state in October, 1895, for a temporary purpose only.” (784) Motive Is Immaterial “The motive of taking up ® resi- dence is usually immaterial except so far as it may throw light upon the bona fides of the domicile.” (785) Smith vs. Smith, 10 N. D. 219; 86 NW 721, 4; The appellant was plaintiff below in this action for divorce. Judgment for the defendant was affirmed be- cause the plaintiff was without re- sidence in this state. The plaintiff came into North Da- kota in June, 1898, and remained va- riously at Fargo, Bismarck, Grand Forks until December, . 1698, and upon the day when the summons in this action was served he left im- mediately for Chicago and points in New York state. He returned to North Dakota in the fall of 1899, re- maining one week snd then returned to New York state. He returned to North Dakota in September, 1900, and applied for this divorce. The court thought it particularly improb- able that the plaintiff was practic- of “penman” during his week's visit to North Dakota. Holtan vs. Beck, 20 N. D. 5; 125 NW 1048, dence Barnes county must be con- Sidered as the residence. Anderson vs. Breitheard, 62 N. D. 709; 245 NW 483. Opinion of Justice Burr. ‘This is & mandamus proceeding by a fact that a married man’s domicile Residence: Weight and Sufficlency|is where his family lives ....” 9 of Such Evidence to Show an In-| RCL 557. tent to Establish Domicile “The domicile of a married man “Domicile is presumed prima facie jis presumed to be at the place where to be at that place where the party/nis wife or family resides, provided @ student at the schools in the|is shown to be or where he is resi-|the family residence is a permanent the members of the school board of ‘a Payment of non-residence fees. The question in the case turns up- on the construction of the Section 1343 of the Supplement to the Com- piled Laws of 1913. The court specifically states that the term residence as used in this section of the code is not similar to that used in Section 14, Compiled Laws of 1913, and that the rule set out in Section 14, of the Compiled Laws does not govern a determina- tion of the section of the code in- volved in this case. ‘Words May Be Synonomous “The decision in Gardner vs, Board of Education, 5 Dak. 239; 38 NW 433, might indicate that for school pur- Poses residence and domicile are synonymous; but the opinion says distinctly that in this case cited ‘no point was made on either side as to the technical difference between residence and domicile, and that residence is used throughout the record as the synonym of domicile.’ ‘That case turned upon whether or not the person s0 involved was domiciled in Fargo. It was shown he ‘was not; that he came to Fargo mere- ly for the purpose of getting the school privileges for his children... . Hence this case has no value in de- termining the legislative intent ex- ina in the law under consider- Enderlin vs. Pontiac, 62 N. D. 105; 242 NW 117. ‘This is @ pauper case in which the court indicates that sections 2500 and 2501 Compiled Laws of 1933, when they use the term residence, do not use that term in the same sense in which it is used in Section 14, Com- piled Laws of 1913. Burke county vs. Brusven, 62 N. PR. 1; 241 NW 82. ‘This is precisely the same type of case as the last and the ruling is also the same.. Analysis of the Law Governing the Establishment of Domicile In the event that the court deter- mines that the word “resided” as used less rebutted by evidence Ss at that time. It shows that the bur- den of proof is on the party who claims that the domicile has been changed.” 9 RCL 557. “The place of residence where & person actually lives is, prima facie, Youngstown school district against|dent, This presumption controls un-/home and not a mere temporary resi- dence for transient purposes. .. . The that district to permit attendance|ing his domicile in some other place |removal of one's family is always an important, if not essential, element in a change of domicile.” 19 C. J. 433; and see 14 CYC 861. “The place where a married man's family resides is generally to be deemed his domicile.” Story, Confl. presumed to be his legal domictle| sec, 46, +o” (19 C. J. 431. People vs. Moir, 307 Ill. 180: 60 NE 905. Hart vs. Lindsey, 17 N. H. 235; 43 Am. Dec. 597. Lowry vs. Bradley, 39 Am. Dec. 142 (E. ©.) Anderson vs. Watt, 138 U. 8. 604; 34 Law Ed. 1078. Mitchell vs. U. 8. 21 Wallace, 360; 22 Law Ed. 584. Eneis vs. Smith, 14 How. 400; 14 Law Ed. 398. Shelton vs. Tiffin, 16 How. 163; 12 Law Ed. 387. Beecher vs. Common Council, 114 Mich., 228; 72 NW 206. Harrison vs. Harrison, 84 Atl. 57; 117 - Md. 607. Hairston vs. Hairston, 27 Mass. 704; 61 Am. Dec. 530. Shepard vs. Wright, 113 N. Y. 582; 21 NE 724. Collins vs. City of Ashland, 112 Fed. 173. MeDonald vs. Flour Mills Co. 31 Fed. 577. Graham vs. Graham, 9 Fed. 88; 81 NW 44 (Supra 18). Hart vs. Lindsey 43 Am Dec. 507. In this case the defendant went to another town for the apparent pur- pose of spending a definite time in the pursuit of his studies. “The place where @ person lives is taken to be his domicile, until other facts establish the contrary. If a person has actually removed to another place with an intent of re- maining there for an indefinite time, and has @ place of present domicile, notwithstanding he may entertain the floating intention to return at some! time in the future.” (Page 602) Lowry vs. Bradley The question here was one of & contested will. The decedent short- ly before his death left South Caro- lina and went to Alabama. The dec- in Section 73 of the North Dakota Constitution is synonymous with the. term “domicile,” then in accordance with the unquestioned rule of law, the problem of establishing the resi- dence of Moodie becomes one of showing (1) the fact of the existence of a physical residence or abode con- curring with (2) the intention re- quired by law to make that residence his domicile. The following propositions are the rules of law governing the determina- aration of the decedent and the prima facie presumption arising from the fact of residence in Alabama caused the South Carolina court to find decedent's residence was in Ala- Prima Facie Evidence “A person's being at a place says Lord Thurlow, Bruce vs. Bruce, 2 Bos. Pal. 230, note, is prima facie evidence that he is domiciled at that place. The actual place where he is sayi Rosslyn, in Bemifide vs. John- Pearce vs. State, 1 Sneed (Tenn.); 60 Am. Dec. Caddie vs. Mann, 147 Fed. 955. Nugent vs. Bates, 51 Ia. 77; 50 NW 76; 33 Am. Reps. 117. Valentin vs. Valentin, 61 N. Equity, 400; 48 Atl. 593. Jones vs. Riser, 160 Pac, 58 (Okla.) Beauregaard vs. Gunnison City, 48 Utah 515; 160 Pac. 816. State Savings Assn. vs. Howard, 31 Fed. 433. Cass vs, Gunnison, 68 Mich. 147; 36 NW 45. McDowell vs. Friedmann Bros. Shoe Co., 135 Mo. Appeals 276; 115 {Nw 1028, Berry vs. Hull, 6 N. Mex. 643; 30 Pac. 936, In Re Oganesoff, 20 Fed. 2nd, 978. Gilman vs. Gilman, 52 Maine, 165; Ringold vs. Barley, 5 Md. 186; 59 Am. Dec. 107. Pearce vs. State This case came up on an alleged improper charge of @ jury in a trial upon a presentment for illegal vot- ing. The court said: | "It is true that the residence of a married man’s family is in general to be deemed his domicile, because they usually reside at his permanent home; the place to which, whenever he is absent for business or pleas- ure, he has the intention to return. The residence of the family is a fact from which the domicile may be pre- sumed: and this is a presumption of fact, and not of law, as was errone- ously stated by the judge.” Beauregaard vs. Gunnison City ‘This is an election contest. As to fone of the illegal votes challenged the only evidence submitted as to domicile was that the voter lived ‘with his family in another voting dis- trict. The vote was held illegal be- cause of the presumption arising from this fact. “We are of the opinion that Henry Knightson’s domicile presumptively was in Voting District No. 1, where his wife lived, and that the presump- tion should prevail until the con- trary is shown by proper evidence.” J Act of Voting: Weight and Suffici- ency of Such Evidence as Showing ney Intention to Establish a Dom- “Exercise of the elective franchise Lord tion of this intention. Under each] ston, 200, is prima facie, ( considered.” 19 Proposition is given the supporting | Pres, “orang purposes) ae. A }; See 9 RCL 588. authorities followed by comments ON | cije, and says Sir John Nicholl, in McCormick vs. McCormick, 129 Atl. and quotations from these caseSistaniey vs, Bermos, 3 Hagg. 373, 212 (N. J). where appropriate: prima facle he is domiciled where he| .,2aftison vs. Harrison, 117 Md. 607; is resident.” 64 Atl. 57. tutional Convention, 1889, Pages 316 and 317: The report of the commit tee on file No. 122 provides for a r |. Gardner vs. Board of Education, 5 ND 359; 38 NW 433. and there admitted to probate. The jrespondent 116 votes. The court here {county court ruled for the cross-/held three votes were cast illegaly Action in the nature of quo W8r-/ intention te D ae el Determined This was a mandamus proceeding ‘petitioner and the district court re- idence of two years. When the file’ ve etitioner’s chil ad- ‘was reported out. however, the toi. |*° pare 8. peuitie eolipines versed this ruling. mitted to attendance at school with- Bie Jowing objection was made to the pe- riod of time: Raised from Two Years “Mr. Scott: I move that the word ‘two’ in line four be stricken out and the word ‘five’ inserted in its place. If there is any reason why any of- ficial place in the state should be filled by a@ man who has had some Jengthy residence in the state, there 4s every reason why that of the gov- ernor should. I don't believe that it should be possible under the Consti- tution for a man to come into the state and, in a period of two years, at- tain to the gubernatorial chair. I be- lieve that five years is short enough and that he cannot in less than that time become acquainted with the wants and desires and necessities of ine people.” Constitutional Debates, A fair interpretation of the word “resided” as used in the Constitu- tional Provision, considering its his- tory and purpose, would appear to justify construction that it was in- tended to mean “residence” as dis- tinguished from “domicile.” That is, that the physical act or the act of actually living within a certain place ; 48 indicated for a certain definite pe- “-viod. It appears to be the concensus of opinion of the framers of the Con- stitution that it was necessary for a person in order to qualify for the of- fice of governor to have actually and physically lived within the state for the period required in order that he might “become acquainted with the wants and desires and necessities of the people.’ It clearly was not within the intent of the Constitution makers that a the state, and then Yeaving it for a period of years, but tain the legal abode by the mere | A The jurisdiction of the Canadian jout payment of non-residence fe°s.'court is challenged on the ground |The lower court ruled against the|that the decedent was a resident of petitioner. . North Dakota; the court specifical- Stating that the sole question was jy states that the term residence here as to where the residence of the com- impiied domicile. plainant was, the court listed the| The facts were that when the first following facts hearing upon the wij) was made in North Dakota the | question: deceased was a resident here and | In 1885 Gardner had and still had nad perfected a homestead title and jat the time of the suit a large and | had resided in the same county in well stocked and implemented farm! North Dakota for ten years or more jat Ernest, North Dakota; since thejand until the fall of 1918, going to 1885 term of school and until the!Canada in the fall of 1918, where she trial in January, 1888, the plaintiff /died in 1919: that upon going to Can- had during each of the intervening/ada it was her intention to pay & terms of school brought his children | visit; that she left her household in- to Fargo, putting them in attendance ‘tact expressing an intention to re- at schools in Fargo. house at the commencement of each/at the time of making this visit and term of school and at the termina-|jyst before she died was feeble in tion of the school term he gave upjmind and subject to hallucinations. the house and returned with the The cross-petitioner asserts only that children to the farm, returning again! the residence at the time of death to Fargo in the fall. Upon each o:-' was Canada, as stated in her will, casion the house, furniture, two!without any sustaining facts. . horses and two cows were transferred, Held that the domicile was North from the farm to Fargo and returned pakota, the cross-petitioner failing to to the farm with each change of re-'yphold the burden of proof which sidence. ‘was upon him to establish the resi- Gardner had no “permanent busi-|dence in Canada. ness” in Fargo, admittedly the pur-/| Mere Matter of Form pose of coming to Fargo was to put} “The recitals as to residence are the children in better schools than jargely matters of form .... The could be found in Ernest. lexpressions of the scrivener rather ‘The court specifically pointed out than of the testatrix. We think thet that in this case the words residence | they are to be given no weight, un- and domicile have been used synony-'der the circumstances shown, in de- poy Ryne zoe sides tacitly as-!termining her domicile, We are of 50. rec- The court held that the domicile (2g opinion that upon the wile tee of the complainant was at the farm! Mrs. H. at the time of her death was in Ernest. domiciled in the state of North Da- ure Domicile Was on Farm kota, and that as a matter of law the If upon this testimony the trial|inferential finding of the county " jcourt had found appellant to be duly|court, to the contrary is not sustain- domiciled in Fargo, it would, we think, have given undue weight to ‘appellant's naked declaration claim-| NW 101 ies Fargo as his domicile.” (Page! This is an action by the state do- ling business as the Bank of North The plaintiff had not by intent cr 14 ‘wa he oe Ma eae Dakota to foreclose a mortgage on - real property. Judgment for the “In cases much closer than the: Pant ana peal therefrom. lone at bar it has been held that the ‘or a promissory neve taken from the of choice or election be- for @ promissory note taken from the tween two potential domiciles is out- | aeteedenk, ‘The mortgage was execut- wel by objective facts” (Page by Mrs, Stoelting. The husband ses in all well considered cases, able.” Biate vs, Stoelting, 53 ND 736; 206 and wife together subsequently exe- cuted a to secure payment the husband at mortgage jot an overdraft by for the respondent because of a fail- ure by the three voters to qualify as| |residents of Larimore. Mention Larimore Case 1, Geo. Hetherington was held to have no voting residence in Lari- more. The testimony was that he lived in Larimore from 1892 until 1912 when he went to work on a farm out of town. He visited town about once @ month and was absent at one time for a three months’ period. When he lived in Larimore he resided at the Salvation Army barracks, and part of his personal effects were left) with the son at the barracks when he worked on the farm. He had farmed at Larimore since 1893: “We grant there is much force to the argument made by counsel for He rented a'turn; that she was 85 years of age |appellant to show that the trial court|in office jerred; but we think the evidence is BEES ne BEES Eee 2h Bs i oF i : E i i g i 5 E Tanto. Defendant appeals and is sustained in his appeal. Sul nt to an election for the office of sheriff of McLean county which Beck won, the territory of the county was divided to make Sheridan ‘The commissioners of Mc- Lean county, after Beck had taken his oath and entered upon the duties ‘of his office, conferred the office of sheriff upon Holtan in view of Beck's disqualification because of residence in Sheridan yield the records fice. The only admissible evidence in the trial was an affidavit offered by Holtan in which Beck had stated “he resided at McClusky,” which the court found to be in Sheridan coun: ty. Held, Beck must be continued for the sole rea- plaintiff has fue ¥ : i it 8 | g bl = ageee. Leese ip ine I 5 5 Establish from All St Facts and Circumstances Story, Confl. of Law, Sec. 47 “That will be esteemed his domicile +++ Which appears to be the center of his affairs.” “In general, all the circumstances of the particular case should be tak- en into consideration in determin- ing the person's intentions.” (to establish his domicile). 9 RCL 543. “In general terms one may be des- ignated as an inhabitant of that place which constitutes the principal seat of his residence, of his business pursuits, connections, attachments and of his political and municipal relations.” 9 RCL 540. “The problem (of determining the intention to establish a domicile) therefore depends for its solution not upon @ consideration of any single circumstance, but upon all the cir- cumstances taken in connection with the principal os bat eg: fel | rs z 20). "sm » TN. D. 404; 75 24). vs. No, Bridgewater, 2 (Mass.). vs. Hairston, 27 Miss. 204; State, 60 Am. Dec, 135 Winch, 27 F. 763) (NS) _1159. #588 Tey i <n a ETE LR REI TEI I Collins vs. City of Ashland, 112 Fed. 175. “The place where a person lives is taken to be his domicile until facts adduced establish the contrary. : 'F. 706, U. 8. Rep. Mitchell vs. United States “By the term domicile in its ordi- nary acceptation is meant the place where a person lives and has home. Story, Confl. L. Sec. 41.” Ennis vs. Smith This was & case in which the will of the Revolutionary War figure, Shelton vs. Tiffin, 6 Row. 163; 12 Law Ed. 387. Hairston vs. Hairston, 27 Miss. 705; 61 Am. Dec. 530, In Re Titterington, 130 Ia. 357; 106 NW 761. Enfield vs. Ellington, 67 Conn. 459; 34 Atl. 818. See State vs. Stoelting. 53 N. D. 136; 306 NW 101, Supra 16, Harrison vs. Harrison This was an action for divorce de- fended on the ground of want of jur- isdiction in the court. The court here construes the pertinent statute his bearing upon the question of juris- domicile, diction to require legal . “The better ruling seems to be that it (voting) is an element, and strong evidence, as to intention. It is not “An frage is conclusive on the subject.” (of showing an intention to — from one state to an-