State ex rel. Catlin v. Galligan

KeewiN, J. The controversy here is over the legality of the votes of' thirteen of the so-called guards employed at the Dupont plant. The inspectors found that the defendant had received sixty-one votes and the relator sixty. After the trial the court below found that the defendant had received sixty-one legal votes and the relator not more than fifty-seven. In his complaint the relator alleged that thirty votes cast for the defendant were illegal on the ground of nonresidence in the town of Barksdale of these voters. Of these thirty voters it was conceded that thirteen voted for the defendant and eight for the relator, and that of the remaining nine four omitted to vote on chairmanship, three were conceded to be legal voters, and two were npt challenged, and it did not appear which candidate they voted for, if for either. Two,of the thirteen voters in question had been at the plant upwards of two years at the time of trial, others were there throughout the same period. Eleven of the thirteen were challenged at the polls and each swore in his vote. Seven of the thirteen voted in the town at the general election in the fall of 1916. Seven of the thirteen were employed at the plant at the time of trial and testified for the relator. One had enlisted in November, 1917, three were discharged in August, 1917, and two quit the employment in 1917. The evidence of eight of the thirteen guards was produced by relator on the trial. It showed that at the time of the election each was and for more than ten days had been actually employed in the town of Barksdale, working, lodging, and taking his meals and keeping his clothes at the barracks; that it was then his intention to continue such employment and remain in the town for an unlimited time, that is, indefinitely or permanently; that at the time of said election [492] be considered Barksdale bis borne and that be then bad no other borne and bad no intention of removing from said town and bad not come into tbe town for any temporary purpose, and was self-supporting and was not dependent upon bis parents or any one else for support. No evidence was offered to impeach tbe right to vote of the' remaining five voters. Tbe sole question in this case is whether tbe alleged illegal voters were residents within tbe meaning of sec. 6.51, Stats. Tbe burden was upon tbe relator to prove that- tbe thirteen voters were not residents. State ex rel. Hopkins v. Olin, 23 Wis. 309; State ex rel. Swenson v. Norton, 46 Wis. 332, 1 N. W. 22. Tbe findings of tbe court below on this question are in favor of tbe defendant and cannot be disturbed unless contrary to tbe clear preponderance of tbe evidence. Mechanical A. Co. v. A. Kieckhefer E. Co. 164 Wis. 65, 159 N. W. 557. Tbe thirteen voters in question were all guards at tbe Dupont plant, tbe only manufacturing plant in tbe town of Barksdale. Tbe plant bad been in operation about twelve years, but its capacity bad been largely increased since 1914, so that in 1917 about 1,500 men were employed. In 1915 tbe plant was placed under guard, and at tbe time of tbe election in tbe spring of 1917 tbe thirteen were guards. Tbe guards whose votes are in controversy lived at tbe barracks inside of'the grounds, were subject to strict discipline, and were under certain restrictions; they bad lived in tbe state and at tbe barracks tbe requisite time to establish a residence; they bad made tbe barracks their borne. There is evidence tending to show that they bad no other home while they were .thus employed, and their habitation was fixed at tbe barracks; that they bad no present intention of removing or changing their place of habitation or going elsewhere to reside ; that they bad a home at Barksdale and intended to return there when absent. [493] Tbe mere fact that the employment might end sometime in the future alone does not necessarily make the residence temporary. The barracks where the guards lived had all the conveniences and equipments of the ordinary home, hence were a suitable and proper place for habitation. One may have his residence at a hotel. Hughes v. State, 109 Wis. 397, 85 N. W. 333. The question turns upon the proper construction of sec. 6.51, Stats. Sub. 2 of this section provides: “That place shall be considered and held to be the residence of a person in which his habitation is fixed, without any present intention of removing therefrom, and to which, whenever he is absent, he has the intention of returning.” Sub. 4 of this section reads: “A person shall not be considered to have gained a residence in any town, ward or village of this state into which he shall have come for temporary purposes merely.” And sub. 9 reads: “The mere intention to acquire a new residence, without removal, shall avail nothing; neither shall removal without intention.” Under these provisions counsel for appellant contends that, while the voters in question resided at the barracks fbr more than the period required by the statute, still they were not qualified voters. It is said by counsel that habitation means more than residence; that habitation is a place where a man lives as his home, his domicile. Many cases are cited by counsel from other jurisdictions. The cases outside of our own in the main define home, habitation, domicile, and residence, and are in harmony with the decisions of this court in so far as the statutes of other states on this subject are the same as ours. Counsel relies strongly upon State ex rel. Small v. Bosacki, 154 Wis. 475, 143 N. W. 175, which was a case of temporary employment in the lumber woods. It clearly appeared from the evidence and findings that the so-called “lumberjacks” had no residence, home, or domicile at the camp where they [494] were employed to work for tbe lumbering season. The evidence and findings showed that they regarded their employment temporary, and it was held that they could not gain a residence by simply being in the camp for a temporary purpose merely. The case is therefore distinguishable from the instant case. Counsel also relies on Seibold v. Wahl, 164 Wis. 82, 159 N. W. 546, where the statutory rules, sub. 2, 3, 4, 5, and 9 of sec. 6.51, Stats., for determining the qualifications of electors are set out and applied to the facts in that case. The decision in that case is in harmony with the holding of the court below upon the evidence introduced in the instant case. At page 86 of 164 Wis. the court said: “Applying, therefore, the standard of the statutory requirements with the aid of the light from the foregoing decisions, we find in the case at bar a student who registers from Camp Douglas, where his parents reside and to which place he returns as opportunity, his vacations, permit, and who is dependent, in part at least, upon that home for his support. His attending the university, therefore, is clearly for a 'temporary purpose merely,’ under the fourth subdivision of sec. 6.51. All the facts are much more consistent with Camp Douglas being his home within the meaning of subdivisions second and third of the statute than with Madison being such home.” See, also, concurring opinion of Winslow, C. J., p. 87. The findings of the. court below are supported by the evidence, and under the statute and decisions of this court the judgment below is right and must be affirmed. Sec. 6.51, Stats.; Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 122 N. W. 1126; Seibold v. Wahl, 164 Wis. 82, 159 N. W. 546; Asbahr v. Wahl, 164 Wis. 89, 159 N. W. 549; Gross v. Wahl, 164 Wis. 91, 159 N. W. 549. By the Court. — The judgment is affirmed. OweN, J., dissents.