State Ex Rel. King v. Walsh

484 S.W.2d 641

• Court: Supreme Court of Missouri
• Decided: August 5, 1972
• Docket: 58037
• Status: Published

Opinions

HENLEY, Judge.

This is an original proceeding in prohibition filed July 19, 1972, by which relator, individually and as representative of a class, seeks to prohibit respondents, as members of the Board of Election Commissioners of St. Louis county and as representatives of a class, from placing the name of Christopher S. (Kit) Bond upon the ballot as a candidate at the primary election to be held August 8, 1972, for nomination as the Republican candidate for Governor of this state. Our provisional rule was issued July 20, returnable July 24, 1972. In this interim, Mr. Bond was, on his motion, granted leave to and did intervene as a respondent. On July 24, 1972, respondents and the intervenor-respondent (hereinafter intervenor) filed their separate returns and the case was set for hearing and was heard on July 26 and 27. Thereafter, shortly after submission on July 27, 1972, the court entered its judgment discharging the provisional rule. We now state our reasons therefor.

The ground on which relator sought to so prohibit respondents was that intervenor was not qualified to be a candidate for nomination as the Republican candidate for Governor, because he would not on the date of the general election, November 7, 1972, meet the following qualification for that office required by Article IV, § 3, Constitution of Missouri: “The governor * * * shall have been * * * a resident of this state at least ten years next before election.” Relator asserts in support of this conclusion that intervenor physically resided outside the state of Missouri and in other states as follows: (1) at Charlottesville, Virginia, while attending the law school of the University of Virginia from 1960 through 1963; (2) during the summer of 1961 in New York City while employed by the New York County District Attorney’s office; (3) during the summer of 1962 in Atlanta, Georgia, while employed by an Atlanta law firm; (4) in Atlanta, Georgia, from July 1963 through June 1964, while employed as a law clerk by the Chief Judge of the United States Court of Appeals for the Fifth Circuit; (5) in Washington, D. C., from the fall of 1964 through the fall of 1967, while employed by a Washington law firm. Relator also asserts that intervenor made certain statements and performed certain acts which were inconsistent with an intent to maintain a residence in Missouri and were consistent with an intent to become a resident of another state or states in the following particulars: (1) he made application to take the Virginia bar examination in 1963, in which he stated he was a resident of that state and took the examination and was admitted to the bar of that state; (2) while employed in Georgia he made application in January 1964 to take the Georgia bar examination in which he stated that he was a resident of that state, took the examination and was admitted to the bar of that state; (3) while employed in Washington, D. C., he was, on his application made in March 1965, admitted to the bar of the United States District Court for the District of Columbia; (4) in January 1964, intervenor purchased a 1964 model Oldsmobile in Georgia and was issued a Georgia certificate of title showing his address as 55 Pharr Road, N. W., Apt. E 106, Atlanta, Georgia; that on application of in-tervenor, supported by his oath that he had moved, a duplicate Georgia title for his automobile was issued to him on January 21, 1965, showing his address as 701 Union Trust Building, Washington, D. C, and in March 1965, a District of Columbia title was issued to him for this automobile showing his address as 2325 Pennsylvania Avenue, N. W., Washington, D. C.; and that in December 1967, intervenor made application for a Missouri title to this automobile, in which he claimed and was allowed exemption from the Missouri use tax; (5) on May 12, 1967, intervenor applied for a Kentucky marriage license in which he stated that his address was Washington, D. C, and after his marriage on May 13, “ * * * and before returning permanently to Missouri or establishing a residence anywhere else, he returned with his new wife to Washington, D. C., and established a household” ; (6) interve-nor did not file a Missouri income tax return in each of the years from 1962 to 1968, inclusive; (7) intervenor had interest income during the last ten years, but did not file a Missouri intangible property tax return for each of those years.

Intervenor admits he was physically absent from the state while attending law school, while working in New York City in 1961, and in Atlanta in 1962, during summer vacations, and while working in Atlanta and Washington after graduation from law school, but he denies that he intended to or did thereby abandon or lose his domicile or residence in Missouri and establish a residence elsewhere. He contends and argues that his residence in New York City in 1961 was for temporary summer employment as a law assistant in the New York County District Attorney’s office in July and August; that his residence in Atlanta in 1962 was for temporary summer employment as a law clerk in the office of a law firm in June and July; that his residence in Atlanta after graduation from law school in June 1963 was for temporary employment for a term limited to one year beginning July 1, as a law clerk to the Honorable Elbert Tuttle, Chief Judge of the Fifth Circuit U. S. Court of Appeals; that his residence in Washington, from November 1964 to October 1967, was for temporary employment in a large law firm; that he sought and secured these temporary employments for the sole purpose of continuing his education and training by actual experience in the profession he intended to practice in his home , state and that he at all times intended to return to Missouri, and that he did so, as intended.

He also contends and argues: (1) that his application to take the Virginia bar examination before the end of his senior year in law school was approved, not on the ground that he was a resident of that state, but on certification by the Dean and professors that he was a regularly enrolled student of the law school, a person of honest demeanor and good moral character, over the age of twenty-one years, a citizen of the United States, and that he would complete his degree requirements at the end of the school year, all as authorized by § 54-60, Code of Virginia (under these facts residence is not required); (2) that his application to take the Georgia bar examination made in January 1964 stated that he had resided at a given address in Atlanta for the preceding six months and would continue until he had resided there for twelve consecutive months, however, this statement was not inconsistent with his intent to maintain his Missouri residence but was consistent with his intent and was consistent with the fact that the law clerkship was temporary employment limited to one year and that his residence there for that purpose was temporary; that he is licensed in that state only as an inactive member of its bar; (3) that his application was based upon and his admission to the bar of the United States District Court for the District of Columbia was as a resident of Missouri and a member of the Missouri Bar, under the provisions of that court’s Rule 93(e) which authorizes the admission on motion of a nonresident who is a member of the bar of another .state; (4) that he purchased a 1964 Oldsmobile in Georgia, moved it from Georgia to Washington, D. C., and from there to Missouri and was issued titles by those jurisdictions showing his addresses, and was, on his application, granted exemption from the Missouri use tax, all as stated by relator, but that this exemption was authorized because, under the law, the tax was not applicable to this automobile since it had been registered in his name in another state for more than ninety days before he applied for its registration in Missouri; (S) that his application for a Kentucky marriage license does state that his residence was Washington, D. C, and that he and his wife did live in his Washington apartment after the marriage and a honeymoon trip, but that they returned to his home in Mexico, saw his family and friends again, and she joined the First Presbyterian Church there before they went to Washington where they lived for only about three months (August, September and October 1967) before again returning to Mexico to live as planned; (6) that he did not file a Missiouri income tax return for each of the years 1962 to 1968 because he filed returns elsewhere and was not required by law to file a Missouri return for all these years, but was required to and did file Missouri returns for the years 1963 and 1967; (7) that he had interest income during the last ten years, but filed Missouri intangible tax returns only in the years 1968, 1971, and 1972, but not in the other years because not required by law to do so. He further contends and argues that these statements and acts were consistent with a purpose of furthering his training after law school by experience as a law clerk to an appellate judge in the federal court system and as an associate in one of the largest law firms in the nation’s capital, and were not inconsistent with his intent always to return to Missouri, his home and permanent residence, to practice law and engage in partisan politics.

The question of residence or domicile is one of fact,¹ a question often difficult to determine. The words “residence” and “domicile” may be used interchangeably and relator and intervenor agree and suggest they should be so used in this case because they are synonymous insofar as they apply to the situation here presented. In re Ozias’ Estate, supra, 29 S.W.2d at 243[5]; 28 C.J.S. Domicile § 2b, p. 7.

It has been said that residence is largely a matter of intention, to be determined not only from the utterances of the person whose residence is in issue but also from his acts and in the light of all the facts and circumstances of the case²

Residence or domicile has been defined to be “ * * * the place with which a person has a settled connection for certain legal purposes, either because his home is there, or because that place is assigned to him by law, * * * ” and also as “ ‘[t]hat place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.’ ” In re Toler’s Estate, supra, 325 S.W.2d at 759[4]. This definition of residence or domicile expresses the meaning of the word “resident” as it is used in Article IV, § 3, Constitution of Missouri; that section of our basic law does not mean and require actual, physical presence, continuous and uninterrupted for ten years.

There is no question about intervenor’s “domicile of origin” ³ as that phrase is defined and referred to in In re Toler’s Estate, 325 S.W.2d at 759. He was born in this state March 6, 1939, and was reared in his parents’ home in Mexico, Missouri. Nor is there any serious question but that Mexico, Missouri, continued to be his domicile at least through the date he attained his majority in 1960. The question in this case is, therefore, not whether intervenor has acquired a Missouri residence, but whether after attaining his majority he has, through the exercise of a choice, changed his domicile by abandonment of the former and acquisition of a new one.

The court said in In re Toler’s Estate, supra, 325 S.W.2d at 759, that “ * * * [a] person can have but one domicile, which, when once established, continues until he renounces it and takes up another in its stead. * * * In order to effectuate a change * * * it is necessary that there shall be actual personal presence in the new place and also the present intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode.”⁴ The Supreme Court of Oregon, en banc, said in Elwert v. Elwert, 196 Or. 256, 248 P.2d 847, 853 [9] that “[t]he original domicil is favored and where the facts are conflicting, the presumption is strongly in favor of an original or former domicil as against an acquired one.” In Hall v. Schoenecke, supra, 31 S.W. at 97, it was said that: “A temporary absence of a person from his usual residence through a series of years does not necessarily cause a loss of such residence. Whether a change was effected in one case depends upon the intention with which the removal from the former residence was made.” ⁵

Gates v. Commissioner of Internal Revenue, 199 F.2d 291 (U.S.Ct. of App., 10th Cir., 1952), and Gallagher v. Board of Supervisors of Elections, 219 Md. 192, 148 A.2d 390 (1959), two cases from other jurisdictions, involve many facts quite similar to those in our case and are persuasive in their application of the above rules of law to those facts.

Gates v. Commissioner of Internal Revenue, supra, involved a tax deficiency assessed against the taxpayer for the year 1944 by the Internal Revenue Service on the theory that the taxpayer residing in Louisiana was not entitled to utilize that state’s community property law in reporting his income, because he was not a resident of that state but was a resident of Colorado. The taxpayer was reared in Colorado where his father owned a rubber company. He attended college in Massachusetts and California and upon graduation in 1943 took a job with Firestone Rubber Company in Baton Rouge for the purpose of learning the synthetic rubber business and with the intent to return to Colorado when he determined that he had secured sufficient experience to assist in the management of the family business. He resided in Baton Rouge from 1943 to 1946. He married after going to that city and he and his wife lived there for a little over two years, did their banking there, became members of that city’s country club, and were active in community affairs. He admitted that he had always considered Colorado his permanent home and intended to return to that state to work in the family business. The court held that he had not acquired a legal residence in Louisiana; that he retained his Colorado residence despite his absence for several years and his attachments to Louisiana.

Gallagher v. Board of Supervisors of Elections, supra, involved an attack upon the residence qualification of Theodore McKeldin to be a candidate for the office of mayor of Baltimore. The law required that he be a resident for ten years before election. Mr. McKeldin was born and reared in Baltimore, practiced his profession there, and had previously served as its mayor. After that service, he was elected' governor of the state and moved to Annapolis. A statute required that the chief executive reside in the state capital. The four-year term he resided in the capital was within the ten-year period next before he sought election again as mayor of Baltimore. During his residence in Annapolis he registered to vote there, listed Annapolis as his residence for tax reporting purposes, became a nonresident member of a Baltimore country club, and had his motor vehicle registration and operator’s license changed to his Annapolis address. However, he continued to maintain all of his accounts, associations, social relations and membership in organizations in Baltimore, and indicated in communications with friends that he intended to return to that city at the end of his term as governor, and did so. The court discussed the rule that in order to abandon an old and acquire a new residence there must be, not only bodily presence in the place, but a presently exercised intention of establishing the new residence. The court held. Governor McKeldin did not intend to abandon his domicile in Baltimore, that he did not abandon it as a matter of law, and that he met the residence qualification for may- or of his home city.

There is substantial evidence that intervenor did not abandon his residence in Missouri and acquire a new one; that although he lived for brief periods in Virginia, Georgia, and the District of Columbia during the ten years next before the 1972 general election and made statements which, on the surface, were consistent with an intent to choose a new residence, inter-venor intended to and did continuously maintain his domicile of origin. In fact, the evidence, independent of and apart from intervenor’s own testimony before this court, is overwhelming that no matter where he was during these years, he always intended to return to his home in Mexico to establish an office for the practice of law and that he had an abiding interest in the Republican party and intended to take an active part in Missouri politics in connection with his law practice. This evidence came from friends and associates of Mexico, St. Louis, Atlanta, and Washington in the form of their testimony, their letters and other communications, and from records, and relates to statements made, and acts and events which occurred before intervenor’s residence was questioned.

He registered to vote in Mexico in Au-drain county in June, 1960, and voted in this county in 1960, 1964, 1966, and each year thereafter through 1971.

In December, 1960, while attending law school in Virginia, he registered with the clerk of this court as a law student in which he stated his permanent residence was Mexico. In his application to take the June 1963 Missouri bar examination, filed with our clerk in April, 1963, he again stated his permanent residence as Mexico. In this application he stated that he planned to serve during the year after graduation as law clerk to the Chief Judge of the Fifth Circuit U. S. Court of Appeals. The Missouri Twelfth Circuit Bar Committee certified by this court in 1960, and again in 1963, that intervenor was a bona fide resident of Audrain county. He took the examination in 1963 and was admitted to the bar of this court and thereby immediately became a member of The Missouri Bar. He has each year since admission paid the annual Missouri bar enrollment fee as provided by Supreme Court Rule 6, although not required to do so while employed outside the state. He became a member of the First Presbyterian Church of Mexico when a child and his membership and active interest in that church has continued unabated through the years since reaching his majority as evidenced by his attendance when at home and correspondence with its pastor. In 1964, 1965, 1966, and 1967, he made contributions to the building fund of this church in accordance with his prior pledge. He has continuously through the years since reaching his majority maintained his bank account in a Mexico bank. His Social Security and Selective Service records, begun many years ago, show his permanent residence as Mexico, Missouri. The testimony of a brother lawyer in Mexico, and a letter from his pastor in 1966, confirm his expressed interest in dove hunting in central Missouri and confirm the fact that he returned to and was usually in Audrain county to participate each year in the opening day of the bird hunting season. He purchased Missouri hunting and fishing licenses in 1962, 1964, and each year thereafter through 1968. While dove hunting and on other occasions with a brother Mexico lawyer during these years he, on innumerable occasions, discussed his plans to practice law in Mexico and their plans for joint action and effort to revive the Republican party in Missouri and Audrain county in particular. There is evidence that he made contributions to the Missouri Republican Party during these years. Records of his dentist in St. Louis, dating from 1952 and ending with the dentist’s retirement in 1965, show that intervenor appeared there for treatment one or more times each year during that period. While attending school out of the state and, after finishing his formal education, while employed out of the state he returned to his home during the Thanksgiving, Christmas, and other holiday periods and during summer vacations. Letters to intervenor from Chief Judge Tuttle in 1962 and 1964 support other evidence that his employment in Georgia from July 1963 through June 1964 was for that court year and was understood to be temporary. That he did in fact leave Georgia and return to Missouri in July 1964 is further evidence that his employment as a law clerk in Atlanta was considered by him to be a continuation of his education, that it was temporary only, and was inconsistent with an intent to acquire a residence there to the exclusion of his permanent residence in Missouri.

The fact that he made a statement to the Georgia Board of Law Examiners that he had resided in that state for six months and would continue to live there until his residence was for twelve consecutive months is some evidence that he intended to abandon his Missouri residence, but it is not conclusive of that issue and, as indicated, we have found that it is outweighed by evidence to the contrary.

Intervenor postponed reporting for his employment with the Washington law firm until November, 1964, so that he could continue his efforts in this state, begun that summer, on behalf of the Republican nominee for one of Missouri’s seats in the United States Senate. In that political campaign he made a friend who described for the court intervenor’s intense interest in politics and his consuming desire and intent to return to Missouri to practice law and engage in state politics as soon as he completed his employment with the Washington firm of Covington and Burling.

The senior member of that firm, Mr. Edward Burling, Jr., testified that he interviewed intervenor for employment with the firm in 1964, and that it was understood at the time, and thereafter, that although the firm would be glad to consider intervenor for permanent employment in view of his outstanding record in one of the best law schools, intervenor was interested only in temporary employment for the purpose of gaining experience, a sort of internship, and that he intended to return to Missouri to practice law.

The Honorable Paul F. McArdle, a Judge of the Superior Court of the District of Columbia, who was, before his appointment to the bench, a member of the Covington and Burling firm, told the court that while he was still with that firm he became interested in intervenor and his work with the firm, that they worked together and visited socially almost weekly during those years, that he knew from his many conversations with intervenor about his plans for his career in the legal profession and in partisan politics, and that in-tervenor intended to return to Missouri to practice law and engage in state politics whenever he felt that he had acquired the experience he sought in his employment with this firm.

Carolyn Reid Bond, wife of intervenor, testified that they met in Atlanta in the spring of 1964 and were married in May, 1967, in Lexington, Kentucky; that she visited him and his family in Mexico, Missouri, several times between those dates; that in June, after the marriage, they were in Mexico and she joined his church, the First Presbyterian, in that city, because it was their intent to return there to establish their home after he completed his work with the Washington law firm; that they left their wedding presents packed and did not take them to Washington because they knew they would be returning to Missouri to live within three or four months; that they have resided in this state continuously since returning to Mexico in the fall of 1967.

Intervenor executed his last will and testament in May, 1967, in which, he stated that he was a resident of Missouri.

Intervenor admits relator’s allegation that he did not file a Missouri income tax return or a Missouri intangible tax return for each of the last ten years, but whether or not he was required by law to do so is not an issue in this case and we do not decide that question. The only issue in this case is residence vel non. His admission that he did not file tax returns in Missouri for each of these years is admissible on this issue and may be considered as some evidence of intent to abandon his Missouri residence and acquire a new one, but it alone or combined with the other evidence of that intent, is not conclusive of that issue and, as indicated, we have found that it is light compared to the great weight of evidence to the contrary.

Because we have ruled that intervenor meets the residence requirements of Article IV, § 3, Constitution of Missouri, we need not, should not, and do not rule the question of whether these durational residence requirements violate the First, Fifth and Fourteenth Amendments to the Constitution of the United States as contended by intervenor.

FINCH, C. J., SEILER and HOLMAN, JJ., and JENSEN, Special Judge, concur; DONNELLY, J., dissents in separate dissenting opinion filed; BARDGETT, J., dissents in separate dissenting opinion filed; MORGAN, J., not participating.

1 . State on Inf. McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677, 686 [20, 22]; In re Ozias’ Estate, Mo.App., 29 S.W.2d 240, 243 [11]; Barrett v. Parks, 352 Mo. 974, 180 S.W.2d 665, 666 [2].

2 . In re Lankford’s Estate, 272 Mo. 1, 197 S.W. 147, 148 [2]; Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997, 999 [2]; In re Toler’s Estate, Mo., 325 S.W.2d 755, 760 [8].

3 . 28 C.J.S. Domicile § 5, p. 10.

4 . This principle may be well illustrated by distinguishing the facts in the instant case from the facts in the recent case of State ex rel. Gralike v. Walsh et al., 483 S.W.2d 70 (Decided July 14, 1972, Mo., en banc) involving the candidacy of Brick Storts, III for the Democratic nomination for Senator from the First Senatorial District. Gralike, like this case, involved whether the candidate met dura-tional residence requirements. In Gralike, the relator sought to show that the candidate attacked had not acquired a new residence. In our case, relator seeks to show that the candidate attacked has acquired a new residence. In Gralike, the facts were that the candidate had the required intent but that he did not have the physical presence in the new district for the required time to abandon the old and acquire the new residence. In our case, the facts are that the candidate was physically present in another state, but that he did not have the intent thereby to abandon the old residence and acquire the new. In a few words, neither candidate met the test for abandoning an old and acquiring a new residence: that there must be not only bodily presence in the place, but also a presently exercised intention to abandon the old and establish the new. See also: Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997, 999 [3, 4]; Barrett v. Parks, 352 Mo. 974, 180 S.W.2d 665; Hall v. Schoenecke, 128 Mo. 661, 31 S.W. 97; State v. Snyder, 182 Mo. 462, 517-520, 82 S.W. 12.

5 . See also: State ex rel. Lowe v. Banta, 71 Mo.App. 32, 41; Barrett v. Parks, supra; District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329; Gates v. Commissioner of Internal Revenue, 199 F.2d 291, 293 (10th Cir.); Gallagher v. Board of Supervisors of Elections, 219 Md. 192, 148 A.2d 390.