Smith v. People ex rel. Frisbie

44 Ill. 16

• Court: Illinois Supreme Court
• Decided: April 15, 1867
• Status: Published

Opinions

Mr. Chief Justice Walker

delivered the opinion of the Court:

This was an information in the nature of a quo warramto exhibited against appellant, charging that he had usurped the office of judge of the tenth judicial circuit. The only question presented, and which we are called upon to determine, is, whether, under the eleventh section of article five of our Constitution, he was eligible to the place. That section requires, as a qualification for that office, that the person shall have been a resident of the State for at least five years next preceding his election or appointment.

It appears from the evidence, that appellant went to Tennessee with his family in the month of August, 1865, and returned to Illinois'in March, 1866, where he had resided for many years previously. Before he left this State, and for a short period after his arrival in Tennessee-, he frequently declared, that it was only an experiment. That if he found that the feelings of the people' there were such that he could remain with satisfaction he would not return, but if he found that he could not, then he would return to Illinois. But he was there but a short time until he became satisfied that he could not remain with satisfaction to himself, and informed his partner that he would return to Illinois as soon as the river became navigable, and this seems to have been his fixed determination until it was carried out by his return. So far as the evidence discloses, he at no time expressed an unqualified intention to remain in Tennessee. It was at all times expressed conditionally. And when he was requested by his partner in Tennessee, to vote at an election, he declined, upon the ground that he desired to do no act by which he would lose his citizenship in this State.

Before leaving he refused to sell his Illinois Reports, saying, that he would probably return, and would then need them in his practice. He only rented his residence when he left. And against this is the fact, that he was in Tennessee in the practice, some six months, having his family with him, perhaps as much as two months immediately after his arrival there undetermined whether he would remain, and the remainder of the time fully determined to return to this State. This is, we think, the extent of the proof.

This is a proceeding in the nature of a criminal information, and before it can be maintained, the proof must be clear and satisfactory that the party is disqualified. In this case we find appellant has been appointed judge of the tenth judicial circuit, by the executive branch of the government, and holding a commission regular and apparently legal. This must necessarily raise a presumption of right to the office, and that presumption must be overcome by satisfactory evidence before the incumbent can be ousted. In this case, we think the evidence, at most, leaves the question, whether he had lost his residence in this State, one of doubt. It does not appear that he ever intended to abandon his residence here; but, on the contrary, during all but a short period of time he expressed a determination to return, and for that short period he only seemed to have been in a state of doubt. We think, that, when the residence is lost, it is by a union of intention and acts; but the intention in many cases will be inferred from the surrounding circumstances. In this case, however, we do not think all of the circumstances appearing in evidence establish a presumption of loss of residence sufficient to overcome the presumption arising from the fact, that the governor gave him the commission under which he is now acting.

The judgment of the court below, which was entered pro forma, is reversed and the cause remanded.

Judgment reversed.