Hackett v. New Haven , 103 Conn. 157 ( 1925 )

We will first consider the alleged error relating to correcting the finding of the trial court. It is, in effect, that instead of the finding of the court in paragraphs twenty-five and twenty-seven, there should be substituted paragraphs six and seven of defendants' draft-finding. The effect of such a substitution is that from various subordinate facts appearing in the finding, conclusions diametrically opposed to those arrived at should be made. This is a question of law and properly attacked only as a legal conclusion which it is whether or not specifically designated as such, and to attack it no recourse can be had to the evidence. Hayward v. Plant, 98 Conn. 383,119 A. 341; Dexter Yarn Co. v. American Fabrics Co.,102 Conn. 529, 129 A. 527. There is no allegation in the motion that paragraphs twenty-five and twenty-seven were found without evidence, or that the paragraphs which it is desired to substitute therefor are admitted and undisputed facts. The most cursory examination of the testimony appearing in the appeal record demonstrates this.

The alleged errors of law assigned with reference to the finding of the trial court, are treated in corresponding points made in defendants' brief, and we will consider the same as developed in the brief.

The first heading of the brief sets forth generally the questions involved in the appeal. The second point is that "the words `resident elector' so used in Section 146 of the charter of the city of New Haven mean an elector of the State of Connecticut so resident in the town and city of New Haven as to be entitled to vote there in town or city meetings." Sustaining this claim defendants assert that the term residence is not always equivalent to domicil, but that, in statutes relating to taxation and voting, means domicil unless the contrary is indicated in the statute. This may be taken as true, and we at the outset observe that the trial court has nowhere found that Hendrick was not domiciled in the city of New Haven, or that he was not an elector therein, nor that any of his acts as to actual residence had amounted to an election to change his domicil acquired prior to 1919, nor is such a finding necessary to uphold the conclusion reached by the court. From the facts found it may undoubtedly be found that he was domiciled in New Haven, was an elector of the city, and had therein, as he legally might, a technical or voting residence, which he had acquired some years prior to the removal of his household to East Haven, that he had a right to vote for any candidate for office to be voted for as respects any elective office. The office in question is an appointive office, and the charter, § 146, provides that "every officer of said city chosen by the electors or appointed by the mayor or by the board of aldermen shall be a resident elector of the city." The task before us is to determine the legal effect of the word "resident" when used as an adjective qualifying or limiting the word "elector." Under the claim which we are at present considering the defendants call attention to the provisions relating to the election of mayor of the city and the appointment of its corporation counsel. Section 10 of the charter provides that to qualify a person for the office of mayor he must have been "a legal voter [elector] and resident in the city for the five years immediately preceding his election," and § 15 provides that a person qualified to be corporation counsel must have been "a resident of said city . . . for not less than five years immediately preceding his appointment," and so on with reference to certain other officers. The point is then pressed that in none of the instances referred to can it be claimed that a temporary residence though "actual," "bona fide," and "in part" should be sufficient. This is undoubtedly a correct claim, but it does not imply the converse, that in case one whose residence was actual in fact andbona fide elsewhere could by reason of his being an elector be eligible to occupy these offices. Defendants also contend that residence in the sections above referred to means domicil, because otherwise a person domiciled in New Haven who temporarily ceased to have an abiding place in the city might be barred from the offices therein dealt with until five years after his return to the city. This by no means follows, unless we are to hold that qualifications of the mayor and corporation counsel are determined solely by the word "resident" and ignore the further provisions of law requiring in each case the holder of the office to be an elector. In any event, Hendrick had not gone away from the city and then returned there and set up his abode in fact, actual and bona fide.

We finally reach defendants' claim that the word elector means an elector of the State when standing by itself, and that recognizing this, various provisions in the Constitution and statutes of the State in many places add qualifying words such as "resident" or "residence" to impose some further qualification. That is exactly the claim of the plaintiff; that since the provisions which make it illegal for an actual resident of Stonington, although an elector of and keeping a voting residence in New Haven, to occupy the office of mayor, and an actual resident of Salisbury, likewise qualified as regards New Haven, to hold the office of corporation counsel, a similar provision precludes the plaintiff from holding office on the board of finance of the city; otherwise he might have held the office while he and his household were actually maintaining a home and abode without the State. All three of the above provisions are not merely enabling and declaratory, they are alike restrictive and impose a limitation. It is also to be kept in mind, that while a person is made an elector, it is as an elector of some town of which he remains an elector, until he has qualified as an elector in some other town in proper legal form. There is no such qualification known to our law, as that of an elector "at large."

Passing for the moment the third point stated in defendants' brief, as involving, together with the point just considered, their fundamental contentions, we find the fourth point, that "the court found Hendrick was domiciled in the city of New Haven in 1919, and has not found that he has since changed his domicil." This is true, and as we have before said in this opinion, it is not necessary that a change of domicil should be found in order to support the judgment.

Point five of the brief is that "Section 5 of ArticleVI of the Constitution of the State of Connecticut grants to the selectmen and town clerks exclusive jurisdiction to decide upon the qualification of electors, and, hence, the Superior Court has no jurisdiction of this case." Defendants admit that if the word "resident" annexed to the word "elector" adds a requirement of residence in New Haven, other than the residence needed to qualify the elector to vote in city and town elections, then the court is not without jurisdiction; but they insist that if the phrase "resident elector" means "elector" so resident in New Haven as to entitle him to vote there, the court has no jurisdiction to pass upon the question whether or not the person involved has such qualification; that since the law is settled, as far as questions of voting are concerned, that the Superior Court is without jurisdiction (citingFreeman v. Selectmen of New Haven, 34 Conn. 406, and Perry v. Reynolds, 53 Conn. 527, 3 A. 555) and since that court can neither confer upon one the electoral privilege, nor deprive him thereof, it follows that the court can neither confer upon him, or deprive him of, any other privilege incident to the fact of his being an elector. The force of this argument, however, depends upon whether merely being an elector confers any given privilege, and, as defendants concede, the point to be determined is whether the meaning of the words "resident elector" have the significance claimed by defendants rather than that found by the court, which we are finally to consider.

The sixth point in the brief is that "Section 4 of Article VI of the Constitution of the State of Connecticut forbids the General Assembly to annex any qualification for office other than that a person to be elected or appointed shall be an elector." The section of the Constitution to which reference is here made, reads: "Every elector shall be eligible to any office in this State, except in cases provided for in this Constitution." The defendants say, therefore, since the municipalities of the State are governmental agencies created by it to carry on certain functions of local interest, it would seem to follow that offices in such municipalities are "offices in the State." We think that the phrase "offices in the State." as above quoted was properly construed by the trial judge to relate only to offices of the State government. There are exceptions in the Constitution relating to qualifications of officers, as for those of governor as to his age, as to senators requiring residence in the districts which they represent, as to representatives who must reside in the town which they represent. To an unusual degree the municipalities in the State had from the earliest times exercised powers of self-government through the instrumentality of numerous elected officials, performing duties of the most trivial and unimportant nature, and to hold that the General Assembly was by the Constitution prevented from in any way limiting the eligibility and terms of tenure of such officers is not reasonable nor in accordance with the law as generally received. We rather prefer to hold that the extent of the constitutional provision is interpreted by the way in which the document itself treats it in making exceptions; the exceptions all relate to State officers, in fact to constitutional officers, and may be fairly said to illustrate and define the extent of the primary provision.

We now pass to the third point in defendants' brief, wherein error is claimed in that "the court held that the word `reside' had such meaning that a mere temporary abode elsewhere, to serve a temporary purpose, notwithstanding an intention of leaving that abode as soon as the purpose had been accomplished, made impossible such a residence in New Haven as would conform to the requirements of Section 146."

The definition accepted by the trial court of the word residence derived from the case of Chaplin v.Bloomfield, 92 Conn. 395, 396, 103 A. 118, is the condition of "one who is an actual, stated dweller as distinguished from a transient dweller, even though he have a technical domicil elsewhere. . . . The statute intends an actual, stated residence, not one resting in presumption." To the same effect is Kelsey v. Green,69 Conn. 291, 301, 37 A. 679; in the case last cited this is said to be the general sense of the word as used in our various statutes rather than in the strict technical sense of domicil. In Hewitt v. Wheeler School Library, 82 Conn. 188, 194, 72 A. 935, we held that one who took up a temporary abode in a town in order to receive instruction in a school, and with the intention of leaving the place as soon as such instruction was completed, was a resident. It appears in the instant case that the Hendrick family came to occupy the house at East Haven because Mrs. Hendrick had bought the same on speculation, and the family were occupying it until it could be sold for a favorable price, but, as the court finds, "by reason of the excessively high price only at which she has offered it for sale she has not sold the property." This does not indicate a residence extremely transient in its nature, but a genuine temporary residence, likely, unless Mrs. Hendrick lowers her price for the property, to continue indefinitely.

If we analyze and compare the various sections of the charter of New Haven, relating to the topic under consideration, we find in the first place a general provision that all elected and appointed officers shall be resident electors, also that certain sections from time to time added to the document contain, quite unnecessarily, the same provision, but still the fact that the later additions do repeat this phrase would indicate that it stated a condition of eligibility to office regarded by the people of the city as valuable, and to be safeguarded. If this is a valid inference, and we think it is, decidedly some quite definite meaning and value must be given to the word resident used adjectively, and it is not, as claimed by defendants, used merely to keep out candidates for office whose domicil as well as residence is not within the city. This collocation of words got into the charter because those citizens of New Haven who promoted its passage wanted it there, wanted it because it meant something to them; the General Assembly passed this provision evidently with the idea that it was efficacious for some purpose not to be subserved by the use of the single word "elector," and that the adjective was not merely surplusage, redundant and inefficacious. The phrase went into the law, it seems to us, to accomplish a very definite purpose, that is, to provide that in an office like that of the member of the finance board, the actual residence of the officer shall be in the city, where he may be in readiness for attention to the duties of the office with regularity and promptness, that is, in the language of the market place "on the job." It is true that Hendrick lives in East Haven, quite near the city, but if the law is what defendants claim it is, he might act though actually resident in East Granby or East Lyme. The claim that this law was intended to accomplish the definite purpose above alluded to, is not weakened by the fact that the General Assembly at its last session, in amending this provision, struck out the word "resident" with a purpose of bringing about a different result, an unnecessary proceeding if the word meant nothing in particular as it has stood in the charter heretofore.

The somewhat numerous acts of the defendant Hendrick in carefully attaching all indicia of residence to his admitted domicil in New Haven, can all be as well explained by a solicitude to preserve his domiciliary, technical, voting residence in New Haven, as by regarding these acts as evidencing an actual, bonafide residence, and home, where he and his family dwelt and where the usual conditions of household life obtained. We think that the trial court rightly concluded that Hendrick was not a resident elector.

There is no error.

In this opinion the other judges concurred.