Rock Island daily Argus. (Rock Island, Ill.) 1886-1893, 1888-01-27
MERCER COUNTY'S JUDGE.
j. II. Cornell, the Riehs9ai IHc,Im-
bent
Judge Peasants Renders His Deeis-
ion In the Noted Quo Warranro Pro-
ceedinGs---Interesti Legal Re
view.

The opinion o: Judge peasants, OF
this city, in the quo Uarrdnto proceedings
against Hon. J. H Cornell, county Judge
OF Mercer county, was filed in the circuit
court Of Mercer county today. The quo
,oarTdnto charged that J II. Cornell was
not entitled to hold the office of county
judge Of Mercer county, because he had
not been IN the state for five years next
preceding his election. The cause was
tried in October in the circuit court at
Aledo before Hon. Geo. W. Peasants
The prosecution, was represented by s,
d. c. Hays, states attorney Of Mercer,
and Hon. John c. Pepper, while Judge
Council was defended by Z. D. Sweeney,
ESQ, Of this city, and John c. Wharton,
Esq, OF Aledo. Judge peasants took
the case under advisement, and has filed
with the clerk at Aledo the following able
opinion sustaining Judge Council:
Respondent, residing at Aledo in Mer.
Ger county, Illinois, prior and up to 1882.
on the 9th of May in that year, under
the circumstances hereinafter stated went
to Pueblo. Colorado, and there remained
until April, 1884, when he returned. la
the fall of 1855 he was elected county
Judge of said county of Mercer, took the
prescribed oath, received his commission
and entered upon the duties of the office.
The information filed herein charges that
he was not then eligible, for the sole
reason alleged that he had not resided
in this state five years next preceding his
election" as required by the constitution
Cart. vi, S ~. and mis- denial of that
allegation presents the only issue in the
case; which find for the respondent, for
the following reasons: His election,
oath and ommission-whichw were ad>
mitted-made a prima Jacic title to the
office The burden of defeating it, by
showing his lack of the requisite resi-
dence, then rested upon the people; and
since the charge, which is usurpation. is
of a criminal character. the proof to es-
tablsh it must be satisfactory, Smith
vs. The People, A Ill, 16. The term
residence" In its legal as well as its
popular use, has more and less restrict
ed meaning, according to its application,
Generally it signifies, in both, what we
understand by the home-the domicil-
one lives and dwells without any present
and absolute intention to change it, and
10 which, whenever absent from it, he
intends to return, Hayes VS. hayes, "a
H.. 3l4; Dale VS. Irwin. 70 Id, 1879.
But other places. occupied for times less
fixed or permanent or fer purposes less
general. may also be residences in
legal and proper sense. With all these,
however, the home may still be retained.
Thus the officers of state have a residence
at the seat of government during their
respective terms, and their true homes at
the same time elsewhere, and one may,
by occupancy of particular place for
business purposes only, obtain resi-
dence 80 as to be liable to assessment and
taxation for personal property there
owned or controlled by him (Board OF
Supervisors VS. Davenport, 40 H., 1870,
or to acquire and exercise the elective
franchise (Hayes vs. Hayes, "A Id, 3l2),
without thereby losing that of his home.
Whether he has changed his home or only
acquired special residence may be diih'
cult to determine from the facts, especial
ly where he has no family or dwelling
house at any place; but neither family
nor dwelling house is essential to the res
tention of the former, Wilkins vs. Mar
shall, 80 H., "A, Perhaps it would be
accurate enough to say that wherever
one stays he must be either a transient or
a resident but if a resident, of what
kind must depend wholly upon his in
tention.
From the evidence ia the case | think
the respondent was something more than
a transient visitor to Pueblo, without
knowledge of the provisions of the stat
utes OF Colorado, it seems to me probable
that he could not have successfully re-
sisted the payment Of tax there. and
that to have been entitled to vote he
needed, if anything, nothing more than
to be registered-in other words, that he
was a resident of that state within the
meaning of its revenue and election laws
And yet do not think Pueblo ever was
his home or domicil-dxed upon by him
as, and for his permanent abode. That
such only is the kind of residence con-
templated by the constitution as an ele-
ment of eligibility to office, seems clear
from the length of the period prescribed
and from the decision of the supreme
court, Smith VS. The People, A ILL.,, 10;
wilkins VS. Marshall, 80 Id. IA; johnson
VS. The People, "a Id. 512 3. II is admit
ted that up to the time he left Aledo, in
May 1882, respondent had such resi-,
dence here. Being once established, it
continued unless it was abandoned and
another, of like character, acquired in its
stead, Hayes VS. Hayes, "a ILL.,, 314, 316.
This change could be effected only by the
union of act and intention to that end.
Ibid; Smith VS. The People. A Id. %.
So far as relates to the intention-which
is no less esse initial than the act-the
proof must be made by circumstances, the
acts and declarations of the party; and
here as in other cases, IL these conflict,
acts are held to speak louder than words
Smith VS. Groom, Florida 149 ct seq
Being incapable of direct proof it must
be matter of inference only. But the
law does not designate or recognize any
particular acts or kinds of acts or declar.
alton as conclusive of such intention.
The strongest and the weakest are alike
but evidences of 1t, more or less weighty,
but always subject to explanation, and
the question is one of fact, to be deter
mined by the evidence, of the weight of
which the jury or the court trying such
question is to judge, Potts VS. Davenport,
70 ILL.,, 460. For this reason refuse
assent to the third proposition of law as
submitted on behalf of the people, which
is as follows: If James II. Cornell, the
defendant, sold his residence IN Aledo,
Mercer county, H., dissolved his law
partnership, sold his abstract books and
personal property and settled up his bus,
mess generally in this state in the spring
of 1882, with the intention of moving to
Pueblo. Col, and going into business there,
and did actually move there with his
family and enter into business with the
declared intention and purpose of be-
coming a citizen OF said state of Colora>
4 70 Lnd ma Ii cr the IracticR of tn. 10