{ "id": 1880885, "name": "Mark L. DAVIS v. Howard L. HOLT", "name_abbreviation": "Davis v. Holt", "decision_date": "1991-02-25", "docket_number": "90-317", "first_page": "619", "last_page": "626", "citations": [ { "type": "official", "cite": "304 Ark. 619" }, { "type": "parallel", "cite": "804 S.W.2d 362" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "75 S.W.2d 230", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1934, "opinion_index": 0 }, { "cite": "189 Ark. 839", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425532 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ark/189/0839-01" ] }, { "cite": "198 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459759 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/ark/198/0079-01" ] }, { "cite": "133 A.L.R. 319", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1941, "opinion_index": 0 }, { "cite": "13 Cal. 145", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2217633 ], "opinion_index": 0, "case_paths": [ "/cal/13/0145-01" ] }, { "cite": "39 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898681 ], "year": 1882, "opinion_index": 0, "case_paths": [ "/ark/39/0549-01" ] }, { "cite": "279 Ark. 446", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746941 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/279/0446-01" ] }, { "cite": "Ark. Code Ann. \u00a7 6-14-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 14-14-1306", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "43 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894445 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/ark/43/0547-01" ] }, { "cite": "238 Ark. 842", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734345 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/238/0842-01" ] }, { "cite": "Ark. Code Ann. \u00a7 6-14-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1989, "opinion_index": 0 }, { "cite": "252 Ark. 101", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630039 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0101-01" ] }, { "cite": "213 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467040 ], "weight": 3, "year": 1948, "opinion_index": 0, "case_paths": [ "/ark/213/0816-01" ] }, { "cite": "Ark. Code Ann. \u00a7 6-13-616", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1989, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 6-18-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1989, "opinion_index": 0 }, { "cite": "291 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872705 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0354-01" ] } ], "analysis": { "cardinality": 658, "char_count": 12960, "ocr_confidence": 0.849, "pagerank": { "raw": 2.1902053722014386e-07, "percentile": 0.7737101661139317 }, "sha256": "9151066cb5baaa1395f235e2684de8328beae0ab4df97b19cb0aac6f41704ab7", "simhash": "1:966715bb304a8380", "word_count": 2209 }, "last_updated": "2023-07-14T15:15:14.712931+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., not participating." ], "parties": [ "Mark L. DAVIS v. Howard L. HOLT" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is an appeal from an election contest decision. The appellant, Mark L. Davis, defeated the appellee, Howard L. Holt, in an election for a seat on the Gentry School District No. 19 Board. The Circuit Court held that Davis was not a resident of the District at the time of his election, was not a qualified elector of the District, and thus was not eligible. The Court declared the position vacant. Davis appeals from the decision, contending that he was a resident and qualified elector of the District. Holt cross-appeals, contending that the Court should have placed him in office as the winner of the election rather than declaring the position vacant. We agree with the Circuit Court\u2019s decision that Davis was ineligible for the position because he was not a resident of Gentry District. We also agree that the position was therefore vacant.\nThe essential facts are not disputed.\nIn 1982, Davis received from members of his family a conveyance in fee of a 40-acre tract plus an easement over a .23 acre tract connecting the 40-acre tract with a county road. He had been living in Gentry where his children attended school. Davis spoke with the Gentry School Superintendent who assured him his residence would remain in the Gentry School District if he moved onto the 40-acre tract. The move took place. Davis\u2019s children continued attending the Gentry schools, and he continued to vote in Gentry School District elections.\nDavis\u2019s 1984 voter registration listed his residency as being in the Gentry District. He was elected that year to the Gentry School Board. In 1986, a question arose whether he was a resident of the District, and Davis resigned from the Board. In 1988, Davis concluded that the 40-acre tract he owned outright, and on which his dwelling was located, was not in the Gentry School District but that the .23-acre easement was in the Gentry School District. Davis\u2019s father, on April 30,1989, conveyed to Davis the .23 acres in fee, thus creating a 40.23-acre tract lying in both the Decatur School District and the Gentry School District.\nIn 1987, this Court decided, in Cummings v. Washington County Election Comm., 291 Ark. 354, 724 S.W.2d 486 (1987), that one whose property included land in two school districts could hold office only in the district in which he or she resided, despite the law permitting such a candidate\u2019s children to attend school in either of the two districts, \u201cregardless of the location of the home.\u201d Ark. Code Ann. \u00a7 6-18-203 (Supp. 1989).\nIn 1989, the Arkansas General Assembly passed Act 242 which became effective July 3, 1989. The Act, codified as Ark. Code Ann. \u00a7 6-13-616 (Supp. 1989), contains this language:\n(a) Except as provided in subsection (b) of this section, no person shall be eligible to be a member of any school district board of directors in this state unless he is a bona fide resident and qualified elector of the school district which he serves.\n(b) (1) A person whose residential property contains portions of two (2) school districts shall be eligible to be a member of either of the school district\u2019s board of directors provided he is a qualified elector of the county in which the school district for which he seeks the position lies and he has or formerly had children enrolled in that school district.\n(2) For purposes of this subsection, \u201cresidential property\u201d means that parcel of land which contains the dwelling in which the person resides not less than nine (9) months out of each year.\nThe election contested here, in which Davis and Holt were the only candidates, was held on September 19, 1989. On September 29,1989, the Benton County Clerk, acting on her own initiative, changed the residency listing on Davis\u2019s voter registration from \u201cGentry\u201d to \u201cDecatur.\u201d\nThe trial Court held that Davis\u2019s residence was in the Decatur School District, \u201cand that did not change when he purchased the .23 acres.\u201d It was also held that Act 242 violates Ark. Const, art. 19, \u00a7\u00a7 3. and 4., to the extent the Act permits election to a district office of a qualified elector of the county, as opposed to a qualified elector of the district to be served by the elected official.\nArticle 19, \u00a7 3., of the Constitution provides: \u201cNo persons shall be elected to . . . fill a vacancy in any office who does not possess the qualifications of an elector.\u201d Section 4. provides: \u201cAll . . . district, county and township officers [shall reside] within their respective districts, counties, and townships . . . .\u201d\n1. The elector requirements\nArticle 19, \u00a7 3., of the Constitution requires nothing more than that the elected person be an \u201celector.\u201d In Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948), a question was raised whether Sitton should be paid his salary as City Marshal of the City of Clinton. His mandamus action was defended on the basis that Sitton was not a resident of the City of Clinton and thus he was not entitled to the office. After discussing statutes bearing on the question whether a city marshal was a public \u201cofficer\u201d rather than an employee, this Court wrote:\nIt must necessarily follow, therefore, that a marshal of a city of the second class and a town marshal of incorporated towns are officers under the meaning of Art. 19, \u00a7 3 of our Constitution. That section provides: \u201cNo person shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector.\u201d\nAppellee, Sitton, having never resided in the City of Clinton, was not eligible to hold the office of city marshal.\nSee also Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972).\nIn addition, Ark. Code Ann. \u00a7 6-14-108 (Supp. 1989) provides: \u201cAll persons who have registered to vote in the manner prescribed by. . . Amendment 51... shall be deemed qualified electors of the school district in which they reside.\u201d\nWe agree with the trial Court that even though Act 242 purported to make a person whose residential property spans parts of two school districts eligible to serve on the board of either, it did not change the qualified elector requirement of Art. 19, \u00a7 3., which we have interpreted to require residence in the political subdivision to be served by the elected official. Nor could it alter the more straightforward residency requirement of Art. 19, \u00a7 4. So the question simply becomes one of residency. Does Davis reside in the Gentry School District or not?\nIn the Cummings case, our decision was based on the fact that the candidate\u2019s home was in a district other than the one where she sought election, but she did not contend she had a physical residence in the District. Davis contends that because the parcel of land containing his residence is in both districts and because he has always intended to reside in the Gentry District that is his residence. He freely admits, however, that his house is located in the Decatur District and that taxes on all his property but the added .23-acre tract go to the Decatur District. Based on these facts, the trial Court concluded that Davis does not reside in the Gentry District, and the addition of the .23 acre tract to his 40 acres did not affect his residency.\nIntent is relevant to the question of domicile when a party has more than one residence or has departed from a residence for a temporary stay elsewhere with the intent of returning, see Charisse v. Eldred, supra, but it has far less to do with the concept of residency. While there is no doubt that the concept of residency differs from that of domicile, Stephens v. AAA Lumber Co., 238 Ark. 842, 384 S.W.2d 943 (1964), the definition of \u201cresidence\u201d is not easy. An excellent discussion of the term appears in Krone v. Cooper, 43 Ark. 547 (1884). Chief Justice Cockrill, writing for the Court, was faced with the task of determining whether a defendant in an attachment proceeding was a \u201cresident\u201d of Arkansas at the time the writ was sued out. The opinion lamented that the term may have different meanings in different contexts. It was concluded that for purposes of the attachment laws it meant\nan established abode, fixed permanently for a time for business or other purpose, although there may be an intent existing all the while to return... at some time or other to the true domicile; but so difficult is it found to provide a definition to meet all the varying phases of circumstance that the determination of this question may present, that the courts say, that, subject to the general rule, each case must be decided on its own state of facts.\nIn view of our prior decisions on the matter of residency in the context of elections, particularly our apparent interpretation of Ark. Const, art. 19, \u00a7 3., in Thomas v. Sitton, supra, we cannot disagree with the conclusion the trial Court must necessarily have reached that, in the context of this school election case, the term \u201cresidence\u201d is used by the Constitution and statutes to mean the place where Davis\u2019s house was physically located.\nThis pronouncement is complicated somewhat by Ark. Code Ann. \u00a7 14-14-1306 (1987) which provides:\n(a) All county, county quorum court district, and township officers shall reside within their respective townships, districts, and counties.\n(c) For purposes of this section, legal residence shall be defined as the domicile of the officer evidenced by the intent to make such residence a fixed and permanent home [emphasis added].\nA school district, for election purposes is the same as a township. Ark. Code Ann. \u00a7 6-14-107(a) (1987).\nLike Act 242, \u00a7 14-14-1306 does not alter Art. 19, \u00a7 3., as interpreted by this Court. Even if the language of \u00a7 14-14-1306(c) were thought to be a controlling definition of \u201cresidence,\u201d with greater emphasis upon intent, we would consider the highly ambiguous statement in the light of our decision in Brick v. Simonetti, 279 Ark. 446, 652 S.W.2d 23 (1983). There we concluded it was the actions of an elected official in moving physically to an apartment in the quorum court district she was elected to serve which made her a resident of the district.\nWe therefore affirm the decision on appeal.\n2. Authority to declare a vacancy\nHolt argues that a court, in an election contest has no authority to declare the position vacant, but having determined the winning candidate ineligible to hold the office, it must declare the candidate obtaining the next highest number of votes the winner.\nWe have addressed this question previously. In Swepston v. Barton, 39 Ark. 549 (1882), Barton, who had been Swepston\u2019s opponent, challenged the election of Swepston as Sheriff of Crittenden County. Barton alleged numerous violations with respect to the conduct of the election. After filing the action Barton amended his complaint to allege that Swepston was ineligible to hold the office, and thus he, Barton, should be declared the winner. Our decision was that the other election errors alleged by Barton were not of the sort to be considered in a collateral attack. We did not decide whether Swepston was ineligible because there had been no ruling on the point in the Circuit Court. We did, however, discuss it:\nAs to the legal effect of votes case for an ineligible candidate, two views have been entertained. The English doctrine is, that if the disqualification of a candidate is notorious, votes cast for him will be deemed to have been purposely thrown away, and the candidate having the next highest number of votes will be elected.\nBut the weight of American authority is, that when a vote for an ineligible candidate is not declared void by statute, the votes he receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must be considered as having failed.\nThe real issue in this cause was, which candidate received a majority of the legal votes cast. If Barton did not obtain such a majority, but his competitor was ineligible, it by no means follows that he, as the next in the poll, should receive the office. \u201cThe votes are not less legal votes because given to a person in whose behalf they can not be counted.\u201d Saunders v. Haynes, 13 Cal. 145.\nAccording to the annotation, Elections \u2014 Dead or Disqualified Candidate, 133 A.L.R. 319 (1941), we were, and continued to be, correct in our statement of the weight of American authority on the point. We followed the Swepston case with holdings to that effect, and have consistently followed it in, e.g., Horne v. Fish, 198 Ark. 79, 127 S.W.2d 623 (1939), and Bohlinger v. Christian, 189 Ark. 839, 75 S.W.2d 230 (1934).\nWe therefore find no impropriety in the trial Court\u2019s conclusion that the school board position in question had not been filled.\nAffirmed on appeal and affirmed on cross-appeal.\nGlaze, J., not participating.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Laser Sharp Mayes Wilson Bufford & Watts, by: Dan F. Bufford, for appellant.", "John Dodge, for appellee." ], "corrections": "", "head_matter": "Mark L. DAVIS v. Howard L. HOLT\n90-317\n804 S.W.2d 362\nSupreme Court of Arkansas\nOpinion delivered February 25, 1991.\nLaser Sharp Mayes Wilson Bufford & Watts, by: Dan F. Bufford, for appellant.\nJohn Dodge, for appellee." }, "file_name": "0619-01", "first_page_order": 669, "last_page_order": 676 }