Rock Island daily Argus. (Rock Island, Ill.) 1886-1893, 1888-01-27


strongly relied on by the prosecution is
his own affidavit filed on that application.
If it be conceded that the "bOnafde in
| tention to become a citizen of the state OF
| Colorado" etc, therein declared, fairly
means an intention to make his perma .
nent home there, still 1t is to be observed
/. That no declaration, however solemn
the form or plain the terms, will in Law
raise conclusive presumption of such
intention in fact, but is subject to explain
alton or contradiction. The question is
as TO the actual intention, as matter of
fact and If the declaration be shown TO
be inaccurate or fslse-as through duress,
mistake, misapprehension of its import or
done wilfully-thc legal effect of, the in
tention so falsely declared will not follow.
but only that of tue actual intention
proved. Iapprehend that in case like
this no particular declaration would be
held TO operate in law as an estoppel
against the declarant. 2. | find as q
fact, from all the evidence on that uues-
ton. including this declaration and Civ
ing it all the weight can. that respond,
ent's actual intention was to return to
Aledo as his home if it should appear, be
fore or at the expiration of two years,
that his wife's health would permit II,
then, the meaning of the declaration is
inconsistent with that finding, the latter
includes the finding that the declaration
was inaccurate or untrue, which | would
attribute wholly to misapprehension by
respondent of its real import aud this
finding ia based upon his own testimony
as the most direct and positive evidence,
corroborated by the frequency and open
ness OF his declarations before, about the
time OF and after filing his affidavit, that
he did intend HIS found by his acts in har-
mony herewith which are above men>
toned. If | am right on these two
points, tie effect OF the declaration
whatever may be its true character, is
overcome. 8 But his apprehension of
its meaning, as explained by him, if not
correct, was not so clearly unreasonable
that it could not have been honestly en-
tertaned
1t is said that "a bonafide intention to
become citzen'-a permanent resident
of Colorado is incompatible with bona.
file intention to return to Illinois tor
permanent residence. This proposition
manifestly assumes that bonstide inten.
ton in such a case is necessarily a abso
lutte Notwithstanding all conditions
except such as may absolutely compel the
action or inactiOn of the party without
regard to his will and which are therefore
necessarily implied. doubt the correct>
ness of the assumption. 1t seems to me
easily supposable that respondent could
really intend to return to Aedo if il
should appear that his wife could safely
do So and at the same time il not, then
to remain in Pueblo-being already sat
lsfed that she could safely live there. Yet
the proposition coutended for is that in
that case he would have no bona fide in
teution to live at either place, because a
conditional intention to live at either
would be incompatible with bona fide
intention to live at the other, and by the
supposltion it WAS conditioned az to each
1t rather seems TO me that it might be
conditioned and yet bona tide, in the sense
of the court rule and respondents affi la
Wit ms to both. The case supposed is ma
terially different from that of an intention
$50 to Call ~ to live at one or the other
plaCes-thereby alternatlve-and SO indi
eating state of mind in which no inten-
ton as to either, absolute or conditional
was yet formed. The one here is that of a
man already at Pueblo, with positive
intention to stay except upon definite
condition, the happening of which, though
hoped for, is nevertheless very uncertain
and wholly Independent of his will The
fact last stated shows also that it was not
a case of second choice.
Being then a positive and first choice
of Pueblo, except upon the happening of
the condition stated the question is wheth-
81 he q af
affect the actually or the good faith of
the choice or intention. Intention, with
reference TO almost every act which is not
Of imperative, moral or legal obligation. is
in fact conditional Yet men commonly
declare such intentions without express.
ing the condition, The making of home
at Pueblo or some other place in Colorado
was not imperative upon the respondent
as u moral or legal duty. Many other
places were equally open to selection. His
continuing residence at any place would
properly depend upon the state of his
wife's health as affected by it. This was
not condition imposed by him. but by -
fact which he could not ignore. Her
health was already so impaired as to de-
mand for her restoration certain peculi
arities of climate, to be ascertained only
by actual trial The strongest intention
OF residence at any place selected that he
should form would be to remain there uu
less 1t should appear upon trial to be not
adopted to her need. There might be still
other conditions, such as relate to busl~
ness or the like, but that one would Ger
tainly be in mind. Might he not consists
emily and properly declare 1t to be bona
fide his intention to remain there pcrma-
nently, without expressing such condi.
tions? Respondents case was not mates
rally different in fact or principle. His
intention was to remain unless it shall ap.
pear upon the trial proposed that she
could neither return to Illinois nor stay
in Colorado with safety to her health.
can hardly think that if he had appended
this condition or qualification to his affi
davit the supreme court of Colorado would
have held it not compliance with the
rule and refused him the license sought.
Such construction would seem to me to
be illiberal and harsh in high degree
l believe | have now considered all the
important questions raised by counsel or
that have occurred to me in this case.
There was not so great difference about
tue law as to make it necessary for me to
refer to the many cases cited from other
states and from England, and tc notice
the fine distinction to be found in the
books. The rules that govern this appear
to be sufficiently suited and illustrated BY
our own court, They have been briefly
stated above. Those of Smith vs. The
People repeatedly spproved) and Potts
VS. Davenport are to my mind go nearly
like it in principle, as to furnish reliable
A. 10 60 I.,,s ,ss
| think have been fairly proved.
In accordance with the viaws har.in