The Bismarck tribune., 1935-01-28

registered and voted in Minnesota II
1880. and he believed that every pa.
triotic citizen should exercise hi.
right of franchise.
Even the courts and lawyers recog.
nize that there Is such a thing az
temporary residence as distinguished
from residence Of such permanency
as entities one to vote. Certainly a
layman may be excused for not be-
ing able to draw fine distinctions OF
the law.
II 1t be the contention Of relator
that the facts OF registering and vot-
Ing In Minneapolis conclusively es-
tablishes an intent to transfer legal
residence to Minnesota. we deny that
this Is the law. and say as the au-
thorities unanimously hold, that vot-
ing Is merely evidence to be consid-
cred with the other facts and circum-
stances in determining intent.
Vote Was Pure Oversight
The evidence given by Mr.. Noodle
when considered in connection with
the other evidence to which refer
ence is made, clearly establishes that
his voting was pure oversight. or due
to misunderstanding Of the law and
inadvertance. He did not. as a mat.
ter Of fact, have any thought or sus-
picion at the time of casting his vote
that 1t might work an abandonment
OF his North Dakota residence. and
had not the slightest intention OF
giving up that residence. He has al
ways been a man who took a keen in
te1est in government, deeming 1t a
patriotic duty Of the citizen to vote
His attention was called to this sis
months residence law by his asso-
ciates in the newspaper business, ant
without considering the legal ques-
ton involved, or thinking of the
matter from legal point Of view. he
voted upon the two occasions referred
to.
Respondent was not legally quail
fled to vote in Minnesota, but this
was not the first time a man has
innocently cast an illegal vote. And
in view of the explanation the voting
is immaterial to the issue In this case
AS this court and other courts have
said. such voting "is Of no import.
ance," and therefore did not affect
respondents residence In North Da.
kota.
The purpose Of Section II Of the
constitution was to have men in the
office OF governor who are acquainted
with conditions in the state and the
needs of the people. Residence hero
would be an important factor. ane
so five years was decided upon as 9
minimum.
See constitutional debates.
In State 10 Years
Therefore, one who has lived in tht
state continuously for upwards OF ter
years. with but two breaks. one last.
ing four or five months and the othel
a year and seven months, the last O.
which absences occurred more thar
three and a half years ago. woule
certainly come within the spirit o
the constitution.
II he Is disqualified 1t will be upol
purely technical grounds. In thi
case the man is qualified far bette
than the average candidate would be
because he has been in the 1ewspape
business In all Of the important sec
tons of the state, and the busines
is one that naturally keeps thos'
engaged in it well advised Of busines!
and other conditions.
A strict technical construction o.
the constitution In a case such a.
this would have no justification il
logic or in fact.
Authorities
The decisions of this court ane
other courts of good standing, sus.
tain the respondent in this action.
Constitutionality Of Section II
In the first place, II Section II were
given strict technical construction
and respondent disqualified because
the court thought that he lost hi.
legal residence in North Dakots
when he went to Minneapolis in 1929
we suggest that 1t, Section II, woulc
be violative Of the respondents right.
under Section IA of the Amendment:
to the Federal Constitution. This
amendment prohibits the states from
making laws which violate the priv
/ ileges of citizens of the United States
and requires equal protection Of thu
laws. There does not seem to bt
much justification for m king 8
classification of citizens who may bt
eligible to hold office which woulc
bar one who has all the qualification
for the office from practical stand
point, and permit another. perhaps
less qualified, to fill the office. Thl
being the holding simply because the
man In the favored class may have
residence just long enough to meet
the constitutional requirements
whereas. the other. with much longer
residence and experience, happened
to have short break in his resi-.
dence.
Cases on Residence
It Is general law. in the absence o
q statute, that q residence cannot bt
established without union OF act arle
intent. One cannot establish q lega
residence in state other than ths
one in which he lives merely by form
ing the intention to do so, nor car
he establish such residence by mere
ly going to such other state.
This same principle Is found II
Section IL G. L. It Is there declare'
that there can be only one residence
that a residence cannot be lost unit
another is gained, and that q resi-
dence once established cannot b
changed except by the union Of &C
and intent. There Is no ambiguit.
about the meaning Of these provi
sions. Anyone can understand tn
plain language used and what tn
intent Of the legislature was. Re
gardless Of any prior rule Of lay
made by legislature or courts, the es
tablishment of residence and the re
tention Of residence must be gov
erned and determined by this stat
ute, so far as the general question
Of residence Is concerned. This doe
not mean that the legislature ma
not modify this rule In certain case
as for instance In the matter Of vot