Hogan v. Davis

422 S.W.2d 412, 243 Ark. 763, 1967 Ark. LEXIS 1186

• Court: Supreme Court of Arkansas
• Decided: December 18, 1967
• Docket: 5-4469
• Status: Published

Opinions

J. Fred Jones, Justice.

This appeal questions the trial court’s interpretation of Ark. Stat. Ann. § 42-404 (Repl. 1964) as it relates to the residential qualifications of Lynn Davis to serve as Director of the Department of State Police. The statute provides:

“The Director shall be chosen on account of his qualifications and fitness for the office, shall be of good moral character and a resident of the State of Arkansas for at least ten years next preceding his appointment(Emphasis supplied.)

On June 30, 1967, in response to a request from the Governor, the Attorney General issued an opinion holding that Mr. Davis did not meet the residential qualifications. The Governor nevertheless appointed Davis as Director on August 1. The Director of Administration, in view of the Attorney General’s opinion, refused to approve the payment of Davis’ salary.

Davis brought this action for a declaratory judgment finding Mm to be qualified to hold the office. By intervention the Attorney General sought Davis’ ouster by quo warranto proceedings. The trial court held that Davis is legally qualified under the statute. After a careful study of the matter we are forced to the conclusion that the trial court erred in its decision.

The legislature declared in words too plain to be misunderstood that the Director of State Police must have been a resident of the State of Arkansas for at least ten years next preceding his appointment. There can be no doubt about the fact that the lawmakers, in requiring such an extended period of residence within the s'tate, meant to make certain that the person chosen to be Director would be familiar by first-hand observation with the varied and complex problems of law enforcement that confront the State Police Department. No other convincing reason for the ten-year requirement has been brought to our attention.

The question is: Does Davis meet the residential test that the legislature — the final authority in the matter — has seen fit to impose 1 Upon this question the undisputed facts speak so strongly for themselves that hardly any comment by the conrt is necessary.

Lynn Davis was horn in Arkansas in 1933 and lived here nntil March of 1960. At that time his employer in Texarkana, Arkansas, who was developing a residential subdivision a few miles across the state line in Wake Village, Texas, suggested that to promote the sale of lots Davis should buy a house in the subdivision and move into it with his family. Davis did so. From that time on, over a period of more than seven years, Davis did not make his home in Arkansas until he returned to this state to accept the appointment to the directorship of the State Police in 1967.

In Wake Village, Texas, Davis terminated his 'employment with his original employer' after about a year, but he took another job and continued to live in Wake Village until he sought and obtained a position with the F.B.I. in September of 1961. As a federal agent Davis lived with his family for periods of less than a year in Washington, D. C., in three cities in Illinois, and in Denver. In February, 1964, Davis moved to Rock Springs, Wyoming, where he stayed for about two and a half years. In Wyoming — the first state in which he had resided for more than a year since leaving Texas —Davis expressed his intentions about his residence so emphatically as to leave the matter not seriously open to doubt. On May 13, 1966, Davis qualified to vote in Wyoming by appearing before the registrar and making a written statement under oath that he had been a resident of the state for more than a year and was a qualified elector in the state. He did not actually vote in Wyoming, as he admits he intended to do; for he was transferred to an F.B.I. position in California and remained there until he came back to Arkansas to accept the appointment to the office of Director of the State Police Department.

To sum up, according to the undisputed proof Davis and his family lived outside Arkansas continuously for more than seven years immediately preceding the appointment now in dispute. During all that time Davis’ only real ties with Arkansas lay in the fact that his parents lived here, that he owned a house in Texarkana all along (though not always the same house), and that he intended to return to Arkansas when he could find a .iob here that would enable him to support his family. During his seven-year absence from the state Davis did not attempt to vote in Arkansas, did not pay poll tax here, did not pay the state income tax that is levied on residents of the state, and, of course, did not actually make his home in Arkansas.

In a case as clear-cut as this one we need not enter upon an extended discussion of the technical distinctions between “residence,” which ordinarily means physical presence within the jurisdiction (with, of course, customary absences upon business, vacations, and the like), and “domicile,” which differs from mere “residence” by including the subjective intent to maintain one’s permanent home in the jurisdiction. The distinction between residence and domicile has been made, for example, in such cases as Krone v. Cooper, 43 Ark. 547 (1884); Jarrell v. Leeper, 178 Ark. 6, 9 S. W. 2d 778; Missouri Pac. R.R. v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823; Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Harris v. Textor, 235 Ark. 497, 361 S. W. 2d 75; Husband v. Crockett, 195 Ark. 1031, 115 S. W. 2d 882; Smith v. Union County, 178 Ark. 540, 11 S. W. 2d 455; Shelton v. Shelton, 180 Ark. 959, 23 S. W. 2d 629; and other cases far too numerous to mention.

Even if we agreed with the trial court that our statute required only “domicile,” still appellee could not prevail. Disregarding his move- to Texas which does not constitute a necessary private business absence under Article 19 § 7, his family lived with him for two and one-half years in Wyoming where he declared his intentions as to residence under oath. In order to be a qualified elector in Wyoming, one must have been a resident of the state for at least one year and of the connty in which he proposes to vote for at least sixty days. Article 6, § 2, Constitution of Wyoming; Wyoming Statute, § 22-118.3j. Residence under the Wyoming election statute is defined as that place in which a person’s habitation is fixed and to which, whenever he is absent, he has an intention of returning. Wyoming Statute, § 22-118.3k. The last cited subsection of the statute also provides that a person must not be considered to have gained a residence in any county into which he comes for a temporary purpose merely, without the intention of making such county his home. This action of appellee completely negates any vague and indefinite expressions of a desire to return to Arkansas, insofar as determination of place of domicile is concerned.

The point of controlling importance, which cannot possibly be swept under the judicial rug, is that the legislature meant for the Police Director to have actually lived in the state for ten years next preceding his appointment. Lynn Davis lived outside the state for more than seven of those ten years. He is thus not qualified to hold the office.

Reversed and remanded for the entry of a judgment consistent with this opinion.

Ward, J., dissents.