Mississippi Advisory Opinions April 17, 1972: 1972-0002 (April 17, 1972)

Advisory Opinion Text

Honorable Theron C. Lynd

Circuit Clerk

Hattiesburg, Mississippi

Dear Mr. Lynd:

The ratification of the 26th Amendment to the United States Constitution necessitates a reappraisal of the opinion rendered you on April 7, 1967, copy of which is attached.

The 26th Amendment, supra, provides:

“The right of citizens of the United States who are eighteen years of age or older to vote shall not be denied or abridged by the United States or by any state on account of age.

“The Congress shall have power to enforce this Article by appropriate legislation.”

The ratification of this amendment pursuant to the supremacy clause of the United States Constitution had the effect of amending Section 241 of the Mississippi Constitution of 1890 to reduce the voting age from twenty-one years old and upwards to eighteen years old and upwards.

While there were college students twenty-one years old and upwards affected by Section 241, supra, before its amendment by the 26th Amendment, supra, the ratification of the 26th Amendment, supra, vastly increased the number of college students included in the ambit of and affected by Section 241, supra, as amended, as above set forth.

“'Domicile is not determined by the fact of residence alone, but actual residence in a place is a circumstance which tends to prove domicil in that place; it is a prima facie evidence of domicil. . . . The fact that a person stays at a place may be explained, however, and the presumption of domicil arising therefrom rebutted.”

On page 13 of the opinion in Cheek , supra, the Court stated:

“For purposes of federal diversity jurisdiction 'citizenship' and 'domicile' are synonymous. Stine v. Moore , 213 F. 2d 446 (5th Cir. 1954) . In determining one's 'citizenship' or 'domicile' statements of intent are entitled to little weight when in conflict with facts. Welsh v. American Surety Co. of New York , 186 F. 2d 16 (5th Cir. 1951) .”

Also, Hendry & Lee v. Masonite Corp, et al ., __ F. 2d __ (No. 71-2043, Opinion dated March 1, 1972) was referred to by the Court.

In Hendry , supra, on page 1 of the slip opinion, the following appears as the second paragraph:

“For purposes of federal diversity jurisdiction 'citizenship' and 'domicile' are synonymous. Stine v. Moore , 213 F.2d 446 (5th Cir. 1954) . In determining one's 'citizenship' or 'domicile' statements of intent are entitled to little weight when in conflict with facts. Welsh v. American Surety Co. of New York , 186 F.2d 16 (5th Cir. 1951) .”

It was also held in Hubbard v. MeKey , supra, at page 132 that:

“Domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return.”,

citing Hones v. State , 207 Miss. 208, 42 So. 2d 123 (1949) ; Smith v. Deere , 195 Miss. 502, 16 So. 2d 33 (1943) ; May v. May , 158 Miss. 68, 130 So. 52 (1932) .

Residence was the central issue in the case of Cheek v. Fortune, et al, No. WC 71-41-5, in the United States District Court for the Northem District of Mississippi, Western Division, not yet reported, decided on March 30, 1972.

In deciding the issue, the Court applied the test laid down by the United States Supreme Court in Texas v. Florida , 306 U.S. 398, 424, 83 L.Ed. 817, 834, wherein the Court said:

“Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile.”

The Court also cited Stine v. Moore , 213 F. 2d 446 (5th Cir. 1954) as a case in this jurisdiction applying this test.

The Court in Cheek , supra, cited with approval the Mississippi Supreme Court's opinion in Jones v. State , 207 Miss. 208, 42 So. 2d 123, 126, wherein the Mississippi Supreme Court, quoting from 17 Am.Jur. § 25, page 605, held:

“'The intention to make a home must be an unqualified one, not conditional on the happening of a future event.”'

In further determining the issue of residence, the Court in Cheek , supra, cited 25 Am. Jur. 2d, Domicile , § 25, page 20 and in addition quoted Am. Jur. 2d, Domicile, § 84:

In the light of this significant change in voter composition with respect to college students, the following review of court decisions is made wherein the focal consideration is the question of residence and how that such may be determined by the election officials charged with the duty of ascertaining the same.

It is indispensable that this question be determined in the same manner and based upon the same rational or premise for all persons eighteen years of age or older. This is an absolute constitutional guaranty required to be afforded by the due process and equal protection provisions of the federal and state constitutions. In other words, the standards for determination of residence must be applied alike to all eligible persons.

It must also be kept in mind that the determination of residence must be made on an individual basis, individual by individual, within the relevant facts and circumstances pertaining to each individual and may not be determined collectively with respect to groups of persons. This fundamental does not mean that one or more established legal principles may be applied to more than one person or to an indefinite number of persons wherein the relevant facts and circumstances pertaining to such persons invoke the application of the same rule of law.

It was held by the Mississippi Supreme Court in the recent case of Hubbard v. McKey , 193 So. 2d 129, that:

“Residency and domicile under the election laws are synonymous.”

In summary, the mere fact that an individual resides on the campus of a college or university located in Mississippi does not per se disqualify such person from establishing residence for voting in the county where such college or university is located.

In view of the above and foregoing, therefore, the opinion rendered you on April 7, 1967, is modified and withdrawn in all respects in which it is in conflict herewith.

Very truly yours,

A. F. Summer Attorney General.