The Bismarck tribune., 1935-01-28

/, he and his family lived for tho fol-
lowing nine months os each year. His
children attended school, but he did
nothing much In Fargo asido froo
caring for the family. The plaintiff
voted In the township where his farm
was located In the fall Of 1888. but he
voted In Fargo In the spring Of 1857.
Evidently the controversy arose In
the fall Of 1887. when plaintiffs chill
dren were refused admission to the
Fargo schools. Decision by the ter
ritorial supreme court was rendered
In May, 1888.
Vote Not Important
No particular weight was given BY
the court to the fact that plaintiffs
last vote had been cast in Fargo,
merely saying that II the vote had
been challenged and refused, and the
question came before the court, 1t
must have been decided against him
under the evidence. That "the fact
Of his voting unchallenged Is, there
fore, OF no importance"
In the case Of Gordon VS.. Enimer-
son, 2l0 N. w. CMinn.) 81, the fact
that one claiming . homestead right
in certain property had removed
from such homestead to city, and
within six months after his removal
from the homestead, had registered
and voted in the city. did not estab-
lish conclusively that he had changed
his place Of residence. The court
said:
"McKenna testified that he regis.
tered as voter in Minneapolis In the
spring OF 1923. The date Of regis.
tration was not fixed definitely. but.
when asked whether it occurred in
April. 1923. he answered In the af.
firmative. Much is made Of this cir.
cumstance. Even II 1t had been un-
explained, it would not be conclusive
on the question Of residence. Mime.
sofa. etc. VS.. McCressen, ITO Wis. BIG.
IS N. w. 1919. 81 Am. st. Rep. 927;
Robinson VS.. Charleton, 104 Iowa 296.
70 N. w. GIG: Corey VS.. Schuster A
Neb. 269. g. N. w. 40. But the cir
cumstance was explained, for McKen-
ma testified that, when he registered,
Minneapolis was his temporary resi-
dence, and he supposed he had q
right to vote there as Ions as he
stayed there. Although he was mis-.
taken as to this. the explanation was
reasonable. and entirely did away
with the significance Of his registra-
ton as voter"
One Fact Among Many
"The act Of voting at . place other
than that in which the homestead Is
located does not Of itself conclusive
ly prove change of domicile and an
abandonment Of the homestead, but
is simply fact to be taken In con-
nection with other facts In aiding the
court IN determining whether or not
the removal Of the owner from the
premises was permanent or tempor-
ary, and its effect may be overcome
by circumstances showing an intent
to return"
20 Corpus Juris, Section 400.
In each OF the following cases 1t
was contended that voting estab-
lEhed an intent to change residence,
most Of the cases being on the ques-
ton Of abandonment OF homestead,
but the principle Is the same In al
cases involving change Of residence.
In all these cases it was held that
voting IS not conclusive, that It is
merely evidence to be considered with
the other evidence on intent, and
that the voting must be disregarded
and was satisfactorily explained.
Robinson VS.. Charleton, u N. W.
ua.) GIG.
Cincinnati VS.. Thompson, ls s. W.
(Ky.) 446.
Campbell vs.. Potter, - s. W. tKyo
l39.
Corey vs.. schuster. 81 N. W. Meb3
47o.
Mallard VS.. Bank, 50 N. w. r.
(Neb0 Sill, (registering to one vote
only)
In re Lydig's Estate, 16o N. =. s..
843. registering to vote.)
Fact Of voting when overcome by
other circumstances Is Of slight i'm
portance.
10 Corpus Juris. 1876.
Wolf VS.. McGavock, 23 Wis. SIS.
It is respectfully submitted that
this action should be dismissed and
respondent Noodle held qualified to
act as governor Of the state Of North
Dakota.
M. w. MURPHY,
JOHN MOSES,
NJ. A. HILDRETH.
w. D. LYNCH.
G. j. MURPHY,
! Attorneys for Respondent
! Noodle.