IN RE: McGEE.

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District Court of Appeal, Second District, Division 1, California.

IN RE: McGEE. MARKWORT v. McGEE.

Civ. 18130.

Decided: September 21, 1950

Rollin L. McNitt and Edythe Jacobs, Los Angeles, for appellant. Frank P. Doherty, Los Angeles, and Spencer E. Van Dyke, Manhattan Beach, for respondent.

Patrick D'Arcy McGee was born in Canada. He came to the United States with his parents in 1924. He was then seven or eight years old. He went to grammar school at Lincoln Park, Michigan.

In 1931, by virtue of his father's naturalization, Mr. McGee became a citizen of the United States.

Mr. McGee went to grammar school until 1930. From grammar school he went to Notre Dame, Indiana, worked a year, and studied four years in high school. Then he went to the University of Portland, in Oregon, from the fall of 1936 to June, 1938. This schooling was financed on a football scholarship. Before completing his studies in Oregon he was injured so that he could no longer play football; his scholarship was revoked; and he had to leave.

From Oregon, Mr. McGee came to California. As stated, this was in 1938. He lived in San Jose from July until the middle of November of that year. He worked at what he could find, and tried, unsuccessfully, to get on the football squads at Standford or Santa Clara.

In November of 1938, Mr. McGee's father and mother and their family in Detroit were in dire financial straits. They sent word that they had to have their son's help. So he went to Detroit. He worked at odd jobs from November, 1938 to the spring of 1940, when he was employed by the Ford Motor Company. He lived with his father and mother, and the rest of their family. They lived in a tent until a house and built, in part by Mr. McGee's labor.

April 1, 1941, Mr. McGee was inducted into the Royal Canadian Air Force. May 5, 1943, he was transferred to the United States Navy Air Force. He was stationed at a number of places while he was in the service. He gave his mailing address as 90 Collingwood, Detroit, Michigan; the home of his parents. But he never lived at that address.

September 12, 1945, Mr. McGee and discharged from the Navy at Alameda, California. For a few months before his discharge he was stationed at Crows Landing, California. He was allowed travel pay by the Navy from Alameda to Detroit, Michigan.

After his discharge from the Navy, Mr. McGee applied to take the law course at Harvard University. He also applied to, and was accepted as a student at Boalt Hall at the University of California in Berkeley. Before actual enrollment at Boalt Hall he was advised he would be permitted to enter the law school at Harvard University. So he went to Cambridge, Mass., and studied law at Harvard from October 22, 1945 until the end of January, 1948.

While at Cambridge, Mr. McGee applied to, and received from the State of Michigan a soldier's bonus given by that state to residents of Michigan who served in the second world war.

Mr. McGee also registered as an elector in Cambridge, Mass., and voted at a school board election held there.

After his enrollment at Harvard, Mr. McGee filed a law student's notice of intention to take the California bar examination. July 3, 1948, he filed student's application and affidavit with the State Bar. In the last application he stated that he had been continuously a resident of California from March 10, 1948. In response to the question: ‘State the facts upon which you base your claim to have become and to be such a resident,’ he stated: ‘Having finished law school in February, 1948, I proceeded to Los Angeles, arriving on the above date with the intention of remaining permanently, and have so remained.’

At the primary election in California in the spring of 1950, Mr. McGee was a candidate for member of assembly from the 64th Assembly District. In his declaration of candidacy he stated he had been a resident of California for twelve years. He filed on both Democratic and Republican tickets, and received a majority of the votes cast by the electors of each party.

Affidavit of contest, as permitted by the Elections Code, was filed by the candidate whom Mr. McGee defeated. The contest grounded on the proposition that Mr. McGee was, and is, ineligible to the office of assemblyman, in that he was not a citizen and inhabitant of the State of California three years next before November 7, 1950, as required by Art. IV, Sec. 4 of the Constitution of the State of California.

The contest was heard in the Superior Court of the State of California in and for the County of Los Angeles. Upon the evidence before the court, it was found that Mr. McGee had been a resident of the state for more than three years; a bona fide citizen and inhabitant of the 64th Assembly District for more than a year; and a citizen of the United States since 1931. From the judgment declaring Mr. McGee eligible to the office, contestant appeals.

Nothing need be added to the foregoing statement of facts, except that the record shows that Mr. McGee was called as a witness for contestant under Sec. 2055 of the Code of Civil Procedure, and exhaustively cross-examined by counsel for contestant. All of the evidence possible in such a case as this was presented to the court. Several Navy friends of Mr. McGee's testified to declarations made by him while in the service of his residence in California.

Mr. McGee testified that he made up his mind to live in California and to become a resident and citizen of this state while he was in San Jose in 1938; that that was his intent all the time he was out of the state: taking care of his family in Detroit, in the service, and going to school. With reference to the Michigan bonus, he said he was working his way through Harvard on a GI allotment, charged with the support of a wife and child, and he needed the money. With reference to voting in Cambridge, he said he was assured that students at Harvard could vote at a school board election.

Under the familiar substantial-evidence rule, the judgment must stand, unless it be held that all, or any, of the three facts most strongly urged against Mr. McGee's residence in California—voting in Cambridge, collecting the Michigan bonus, and his declaration to the California State Bar—as a matter of law determine the ultimate fact of residence.

For the purposes of this decision, it may be held that the word ‘residence’ used and defined in our law, and the words ‘citizen and inhabitant’ as used in the Constitution have the same meaning.

Pertinent sections of our codes are as follows: Government Code, sections 243 and 244; Elections Code, sections 5650 to 5661.

Elections Code, section 5653 codifies well-established rules that a person does not gain or lose residence by his presence or absence from a place while in the armed services, nor while a student at any institution of learning.

Residence is essentially a question of intention. Ericksen v. Ericksen, 57 Cal.App.2d 532, 535, 134 P.2d 825. But always the union of act and intent is necessary. Gov.Code, sec. 244; Los Angeles County v. Superior Court, 128 Cal.App. 522, 529, 18 P.2d 112.

The formal acts of registering and voting are convincing and persuasive evidence of residence, but not necessarily conclusive. Taff v. Goodman, 41 Cal.App.2d 771, 775, 107 P.2d 431.

Taking the evidence as a whole, as we must; resolving every substantial conflict in favor of the trial court's findings and judgment, Buckhantz v. R. C. Hamilton & Co., 71 Cal.App.2d 777, 780, 163 P.2d 756; it becomes clear that this court is required to affirm the judgment. The question of residence or domicile is a mixed question of law and fact, and the determination of the trial court upon conflicting evidence is conclusive upon a reviewing court. Sheehan v. Scott, 145 Cal. 684, 79 P. 350; In re Estate of Peters, 124 Cal.App. 75, 77, 12 P.2d 118; In re Estate of Winzeler, 42 Cal.App.2d 246, 248, 108 P.2d 720.

Some argument in the briefs has been devoted to the jurisdiction to the court to hear the contest. See Allen v. Lelande, 164 Cal. 56, 127 P. 643. Section 8600 et seq., Elections Code, provide for the contest. The California courts have jurisdiction to determine the eligibility of candidates for nomination. Elections Code, sec. 8600 et seq.; Heney v. Jordan, 179 Cal. 24, 175 P. 402; Norcop v. Jordan, 216 Cal. 764, 17 P.2d 123; Hubbard v. Jordan, 216 Cal. 788, 17 P.2d 127; Ackley v. Jordan, 216 Cal. 789, 17 P.2d 127; Puccinelli v. Superior Court, 183 Cal. 775, 192 P. 707.

Also the briefs argue whether a candidate who did not receive the highest vote at a primary election can bring a candidate's contest under section 8600 of the Elections Code. Nothing appears in the law which would forbid such procedure.

The judgment is affirmed.

PER CURIAM.

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