Cedar Falls gazette. [volume] (Cedar Falls, Iowa) 1860-1895, 1862-12-12
AN IMPORTANT DECISION.

Wiloughbyenlisted in the army, and after be-
ing absent for several menths he returned
and claimed the Office he held at the time
of his enlistment and proceeded to discharge
the duties of the ofiice-hirlng a teacher, etc.
The question to he decided was, did the gen
tleman vacatc his office by his absence p
Mr.. Lombard, at the instance of parties in
terested, has procured the following decision
on the case mentioned, from the Board Of
Education, though the draft is said to be that
of the Attorney General:
OFFICE OF THE BOARD OF EDUCATION,
Dies MONIES, Dec. 9TH, 1862. I
s. LOMBARD, ESQ,
Cedar Falls, Iowa.
-. DEAR SIR Il reply to yours under date
of 25lh ultimo, propounding school questions
the substance of which is: When town
ship school director volunteers in the military
service of the United States, and leaves the
township and the State in such service does
the office which he held become vacant:
There is no declaring when a school office
shall become vacant, unless Sec. GG2, Revi
sion Of 1860 is applicable to the subject
Assuming that this section is binding in the
case as law, or at least furnishes rule by
which the decision should be determined,
the answer to this question turns on the
construction to be given to the 9th division
Of said section, which provides that any Of
flee shall become vacant upon the holders
"ceasing to be a resident Of the State, dis
trict, county or township, in which the du-
ties of his office are to be exercised, or for
which he may be elected"
The question is, therefore, whether the
director by volunteering as supposed ceases
to be resident of his township.
The authorities recognize distinction be-
tween domicile and residence. A person
may have domicle in one State and at the
same time be resident of another. In New
York, for instance, the courts have held that
when man, domiciled in that State, leaves
for the purpose of doing business in for
sgn city, no matter with the intention of
ultimately returning or otherwise, although
he may retain his. domcie in New York he
is subject to the disabilities attaching under
the statutes of chat State relative to non
resident debtors,-1 Wend 43, ~ do IL. 1t
wsuld seem, however, even under these de-
cisons as though before man would cease
to be a resident of New York, he must have
acquired an actual residence somewhere else.
A citizen Of Iowa, while engaged in the mil
itary service of the United States, certainly
does not acquire legal residence in the sew
eral places where, under the exegencies OF
the campaign, he may be stationed. A citi-
zen of another State cannot in this way be-
come resident of this State; for the Con-
stitution, Art. 2. Sec. 4, provides that I" no
person in the military, naval or marine SER
vice Of the United States shall be considered
resident OF this State by being stationed in
any garrison, barracks, or military or nava!
place or station within this State" 1t
would seem therefore, if a person by volun-
teering ceases to be resident Of the State
from which he enlisted, he is in the anoma-
lous position of having residence nowhere.
This question has already received a Leg
iSlative decision in this State. The Consti.
tuition, Art. 2, Sec. ], prescribes residence in
the State for SIX months previous to an cleo
ton as necessary qualification to voters
! Our General Assembly have passed an act
authorizing volunteers, who are absent from
the State at the time of the election and who
may have been absent six months or more
before, to vote. Of course the General AS.
| sembly were ofthc opinion that absent from
the State under such circumstances does not
| imply a cessation of residence within it
Indeed, no authority 60 so far as to say thai
| absent from home for any purpose and un
der all circumstances, renders the absentee
a non resident during the time of such alb
Sence.
| 1t may be and undoubtedly is true that
absence, such as renders it impossible fol
the incumbent properly to discharge the du
ties of his office, ought to vacate the office
But our statute does not provide that an of
fee shall become vacant for such a cause.
The conclusion must be that the school
director, under the circumstances supposed
continues in Office, Notwithstanding his ab
sence in the military service.
II. A. WILTSE, Acting Secretary
Of the Beard OF Education.