Mississippi Advisory Opinions September 20, 1989: 19890920 (September 20, 1989)

Advisory Opinion Text

Ms. Essie Conaway

Ms. Shirley Kennedy

Ms. Josephine Strickland

Municipal Election Commissioners

Post Office Box 160

Burnsville, Mississippi 38833

Dear Commissioners:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states:

“The election commission of the special election for the city of Burnsville would like a ruling and/or opinion of who is considered a legal resident of said city.

We realize that common sense should rule, that in order to be a legal resident you must reside inside the city limits, but during an election common sense seems to be in short supply. We know it is too late for this election, but we will need the same information next spring when the mayor and alderman election is held, maybe even more so.

We are already seeing people registered, giving other peoples addresses saying they eat and sleep there, so therefore they are eligible to vote in the coming election. Is this sufficient for establishing a legal residence? If a person has two homes, one inside the city the other outside and they have the water and lights cut off the home inside the city and move to the home outside the city, can they still vote in the city elections, legally that is.

If a person is drawing a check for being mentally incapable of working can they be legally qualified to hold a public office?”

In response to your questions concerning residency we are enclosing copies to two (2) former opinions of this office addressed to Honorable Jerry M. Gilbreath, dated January 5, 1978 and Honorable Bernard Handy, dated July 29, 1981 respectively and the attachments thereto. In summary those opinions state that it is the responsibility of the appropriate election commission to make the factual determinations on questions of residency on a case by case basis and sets forth certain guidelines laid down by the courts that should be considered in making each such determination. The guidelines are as follows:

1. Residency and domicile under the election laws are synonymous. Hubbard v. McKey , 193 So.2d 129 (1966);

2. Domicile, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return. Hubbard, supra;

3. The foundation of domicile is intent. This intention may be established by physical presence, declaration of intent, and all relevant facts and circumstances, and in this connection it has been held that the declarations of the party himself are most important. Stubbs v. Stubbs , 211 So.2d 821 (1968);

4. In the absence of any avowed intention, and of acts which indicate a contrary intention, a long continued residence is regarded as a controlling circumstance in determining the question of domicile. In most cases it is unavoidably conclusive. Stubbs, supra;

5. Ownership of property, whether real or personal, in the county (or municipality) is not an indispensable requirement to establishing domicile or permanent residence thereon or the continuation of such domicile and permanent residence once established. Stubbs, supra;

6. Long continued residence is controlling and conclusive in determining the question of domicile in the absence of any avowed intention, and of acts which indicate a contrary intention. Stubbs, supra; 7. Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile. Texas v. Florida , 306 U.S. 398, 83 L.Ed. 817 (1939);

8. The intention to make a home must be an unqualified one, not conditional on the happening of a future event. Jones v. State , 207 Miss. 208, 42 So.2d 123 (1949);

9. Domicile is not determined by the fact of residence alone, but actual residence in a place is a circumstance which tends to prove domicile in that place; it is a prima facie evidence of domicile. The fact that a person stays at a place may be explained, however, and the presumption of domicile arising therefrom rebutted. Cheek v. Fortune , 341 F.Supp 729 (N.D.Miss., 1972); and

10. In determining domicile one's statements of intent are entitled to little weight when in conflict with the facts. Cheek, supra ;

In addition to the guidelines listed above, the Mississippi Supreme Court has held that as a matter of law, the filing for homestead exemption conclusively establishes domicile for electoral purposes in the county of filing, regardless of circumstances indicating that certain ties to other counties still exist. Gadd v. Thompson , 517 So.2d 576 (1987); Hollowell v. Vandevender , 358 So.2d 1328 (1978).

In response to your question concerning an individual who is mentally incapable of working and whether or not he is eligible to hold public office, please see the enclosed copy of an opinion addressed to Honorable W.C. “Buck” Rogers, Jr., dated August 9, 1989. In summary that opinion states that in order for one to be disqualified from voting (and consequently holding public office) he must have been judicially determined to be insane.

Sincerely,

Mike Moore Attorney General.