Oregon Advisory Opinions June 07, 1966: OAG 66-82 (June 7, 1966)
Collection: Oregon Attorney General Opinions
Docket: OAG 66-82
Date: June 7, 1966
Advisory Opinion Text
OAG 66-82.
Evidence required to establish residence by men and women in the armed services. Competent evidence and unequivocal proof defined.
Secretary of State
You refer to our letter to the Honorable Beulah Hand of February 14, 1966, and opinion No. 6086, dated February 21, 1966, and state:
"In Mrs. Hand's letter you make reference to 'competent evidence' which should be presented to the Secretary of State by a woman filing a petition or declaration of candidacy to prove that her name is that as described in ORS 249.221 (1)(a). I would ask you what type of evidence we should ask for or accept in such cases.
"In your Opinion No. 6086 you appear to lean quite heavily on the Oregon Supreme Court case In Re Noyes' Estate. You quote in your opinion portions of this decision which state that 'the clearest and most unequivocal proof' and 'evidence offered', to support your opinion that the serviceman, whether stationed on or off a military base in Oregon, may establish an Oregon domicile for any purpose including that of registering to vote by a clear showing of intent to become a domiciliary of Oregon.
"I would now ask you what the county clerks of this state should require for 'unequivocal proof' or 'evidence' to support a clear showing of intent on the part of a serviceman to become a domiciliary of Oregon."
Your first question involves the definition of the term "competent evidence." These words standing by themselves are clear and understandable and should need no interpretation.
In order to give you a clearer understanding as to their meaning the following definitions thus applicable are furnished.
Webster's New International Dictionary, 2d ed., defines "competent" in these words:
"1. Answering to all requirements; adequate; sufficient; suitable; capable; qualified; fit. * * *
"4. Law. * * * c. With respect to evidence, meeting the legal requirements for proof of the particular fact."
The legal requirements for proof of the particular fact have been expressed in the following language:
" 'Competent evidence' means evidence that tends to establish the fact in issue and does not rest on mere surmise or guess." Clifton v. Arnold, (C.A. La. 1956) 87 So. (2d) 386, Headnote 3.
Under ORS 249.221 (1)(a) the fact to be established is:
"The name of the candidate by which he
[she] is commonly known and by which he [she] transacts his [her] important private or official business. * * *"
Any evidence "which demonstrates, makes clear, or ascertains the truth" of the conditions set out in the above statute and tends to produce conviction in the mind as to the existence of these conditions would be "competent evidence." 31 C.J.S. 815.
"Evidence is incompetent if not fit for the purpose for which it is offered. * * *" 31 C.J.S. 816.
The rules of evidence governing judicial proceedings are set out in ORS chapter 41. In ORS 41.010 it is stated that:
"Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. Proof is the effect of evidence, the establishment of the fact by evidence."
Evidence varies in kind and degree. ORS 41.030 and 41.040. Although the problem of establishing "The name of the candidate by which he is commonly known and by which he transacts his important private or official business" may not call into play all the kinds and degrees of evidence recognized in ORS chapter 41, the guidelines established by this chapter would be helpful and elucidating.
It is obvious from the above definitions that we are in no position to categorically say what is or what is not competent evidence that would be controlling under all conditions and circumstances. It is only in those specific cases where the particular evidentiary fact is under consideration that it is at all possible to say, with any degree of certainty, that such evidence is competent or incompetent for the purpose for which it is to be used.
Generally speaking and in answer to your question, we would say that any evidence that tends to prove the fact in issue and produces a conviction in the mind as to the truthfulness of that fact would be competent evidence for the purpose under consideration.
In answering your second question we resort to the dictionary for authoritative expression as to the meaning of the word "unequivocal proof."
"Unequivocal" is defined as:
"Not equivocal; not doubtful; not ambiguous; clear; sincere; plain." Webster's New International Dictionary, 2d ed.
Meaning assigned to the word "proof" is:
"That degree of cogency, arising from evidence, which convinces the mind of any truth or fact and produces belief; demonstration; also, that which proves or tends to prove; that which induces or tends to induce, certainty of the judgment; evidence. Properly speaking, proof is the effect or result of evidence; evidence is the medium of proof." Ibid.
"Unequivocal proof" would be what is termed "satisfactory evidence" as defined in ORS 41.110, where it is stated:
"Satisfactory evidence is that which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insufficient evidence."
Basically the reasoning behind the statement that in order for a serviceman to qualify as an elector his residence must be established by "unequivocal proof" of that fact is the condition set out in § 5, Article II, of the Constitution. This section provides as follows:
"No soldier, seaman, or marine in the Army, or Navy of the United States, or of their allies, shall be deemed to have acquired a residence in the state, in consequence of having been stationed within the same; nor shall any such soldier, seaman, or marine have the right to vote."
This section of our Constitution would by its clear and unequivocal language in effect have created a disputable presumption (ORS 41.360) that a nonresident serviceman stationed in Oregon does not acquire a residence for voting purposes by that fact alone. The presumption must be overcome by clear and convincing evidence of the intention to establish an Oregon residence independent of the fact that the serviceman is stationed in Oregon. Day v. Salem, (1913) 65 Or. 114, 131 P. 1028; Wood v. Fitzgerald et al., (1870) 3 Or. 568, 573. See Carrington v. Rash et al., (1965) 380 U.S. 89, 13 L. Ed. (2d) 675. Guidelines for this purpose are set out in ORS 250.410.
ORS 250.410 in part provides:
"The election board clerks, in determining the residence and qualifications of persons offering to vote, shall be governed by the following rules, so far as they may be applicable:
"(1) His residence shall be the place in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning."
The key conditions in subsection (1) above are (1) "the place in which his habitation if fixed" and (2) "whenever he is absent, he has the intention of returning." The word "habitation" as used in the above section must be construed as being synonymous with the word "residence" used in § 5, Article II, of the Constitution. It is also to be noted that the term "residence" as used in the Constitution and the term "habitation" as
used in the statute in qualifying as an elector under § 1, Article II, of the Constitution, are synonymous with the word "domicile," particularly when the act and intention of the person must coincide.
"* * * Although general rules and definitions as to its meaning may be laid down by the courts, there can be no absolute criterion by which to determine a person's actual residence. Each case must depend on its particular facts or circumstances, and the question should be determined as one of fact. The following rules are, however, well established: (1) A person must have a residence or domicile somewhere; and (2) one cannot be domiciled in two places at the same time. * * *" 25 Am. Jur. (2d) 758, at p. 759.
"Although intention alone is insufficient to establish a residence for voting purposes, it is an important factor to be considered in determining whether or not a residence has been acquired. In fact, a good-faith intent of a voter to make a place his home for all purposes is an essential element entering into the determination of a question of residence. The intention to be considered is that which is manifested by the voter's acts. If there exists a discrepancy between declaration of intention and acts, the declarations yield to the conclusion to be drawn from the acts. If the intention and acts of a party are in accord with the fact of residence in a particular place, there can be no doubt of the fact that the party is a resident of such place." Ibid, at p. 760.
In answer to your second question you are advised that where facts have been submitted to the election board clerks or such other person authorized to make a determination of residence for election purposes and such facts show that the person's habitation is fixed in Oregon and when absent he has the intention of returning to this state, and the evidence of such facts produces conviction in the mind of the official as to their truthfulness, it is our opinion a nonresident serviceman has acquired residence in Oregon. The serviceman, meeting the other qualifications of an elector, would be eligible to vote in this state.
It is hoped that this opinion will clarify for you certain terms in opinion No. 6086.