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Stein v. County Bd. of S. Tr. Du Page County

JULY 17, 1967.

CLEM STEIN, JR., ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY BOARD OF SCHOOL TRUSTEES OF DU PAGE COUNTY, ROBERT F. KIMBELL, ET AL., BOARD OF EDUCATION OF DOWNERS GROVE ELEMENTARY SCHOOL DISTRICT NO. 58 AND BOARD OF EDUCATION OF DOWNERS GROVE HIGH SCHOOL DISTRICT NO. 98, DU PAGE COUNTY, ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from the Eighteenth Judicial Circuit of Du Page County; the Hon. WILLIAM C. ATTEN, Judge, presiding. Reversed and remanded with directions.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied and opinion modified September 15, 1967.

The plaintiffs, residents of Ginger Creek community in Oak Brook, filed an action for an administrative review of the decision of the County Board of School Trustees of Du Page County, herein referred to as the "Board," which denied their petition for the detachment of territory described therein from certain school districts and its annexation to other districts.

Initially, the Board, following a hearing on the merits, granted the relief sought in the plaintiffs' petition. Thereafter, the school districts from which the territory was to be detached, filed a petition for rehearing, which challenged the authority of the Board to hear the original petition. After a hearing on the petition for rehearing on its merits, the Board reversed itself and held that it did not have jurisdiction to hear the original petition in that two-thirds of the legal voters residing in the area sought to be detached had not signed the petition, as required by the School Code. In the aforesaid administrative review action, the trial court entered a judgment order affirming the decision of the Board and thereupon the plaintiffs appealed.

This case turns on the narrow question of whether one individual was or was not a legal voter under the relevant statutes and the tests set forth by our courts. Section 9-3 of the School Code (Ill Rev Stats 1965, c 122, par 9-3) states that a legal voter in a school election must be a "citizen of the United States, above the age of twenty-one years, must have resided in the State for one year, in the county for ninety days, in the school district . . . for thirty days immediately preceding the school election and be registered to vote in general elections from a residence located in the school district. . . ." The Election Code sets forth the requirements of those who may register to vote in general elections within this State enumerating, among other things, several residence requirements. Section 3-2 of the Code (Ill Rev Stats 1965, c 46, par 3-2) then provides: "A permanent abode is necessary to constitute a residence within the meaning" of the Code.

The narrow and single question presented by the parties is whether Nancy Kolby satisfied the "residence" requirements so as to constitute one of the legal voters of the territory sought to be detached. If so, then the plaintiffs and the other petitioners did not have the requisite two-thirds number of the legal voters residing within such territory sign their petition; if not, then the petitioners did have adequate signatures on their petition.

The petition for detachment and annexation was filed on June 9, 1965, making this the crucial date for determining who were the legal voters within the affected area. Nancy Kolby had lived with her parents in the latter's home within the area in question. On January 29, 1965, the Kolbys' home was destroyed by fire. The family, including Nancy, moved to a hotel outside of the area in question while the home was being rebuilt. The parents at all times intended to return to their original home upon completion of the rebuilding. This work apparently was completed sometime in the fall of 1965 and the parents did, in fact, return.

Nancy, however, was engaged to James Hunt at the time her parents' home was destroyed and their wedding date was set for June 26, 1965. On or about May 10, 1965, her fiance executed a lease naming himself and Nancy Hunt as lessees. The lease was to commence June 1, 1965, and the initial rental payment was made at the time the lease was executed. Commencing around June 1, Nancy began to move her personal belongings and furniture into the new apartment from the temporary dwelling of her parents. She continued to live with her parents at the hotel, outside of the area in question, until June 26, 1965, when she was married. Thereafter, she lived in her new apartment. Her father testified that prior to her marriage she had indicated that she did not intend to return to her parents' rebuilt home — a fact which would seem indisputable under the circumstances.

It is this factual background which must be the basis for our determination of Nancy's "residence" on June 9, the date the petition was filed. At the outset, it is imperative that we elucidate what "residence" is, and is not, for the purposes of determining whether a person is a legal voter.

In the law, "residence" has no fixed meaning but may have a variety of meanings, dependent upon the context in which it is used. Hughes v. Illinois Public Aid Commission, 2 Ill.2d 374, 380, 118 N.E.2d 14 (1954); 25 Am Jur2d Domicil, § 4. For the purpose of determining the question of the right to vote under our statutes, the word "residence" does not mean the same thing as "domicile." Clark v. Quick, 377 Ill. 424, 426, 36 N.E.2d 563 (1941); Coffey v. Board of Election Com'rs of East St. Louis, 375 Ill. 385, 388, 31 N.E.2d 588 (1941); Park v. Hood, 374 Ill. 36, 44, 27 N.E.2d 838 (1940); Pope v. Board of Election Com'rs of East St. Louis, 370 Ill. 196, 202, 18 N.E.2d 214 (1938); Dorsey v. Brigham, 177 Ill. 250, 264, 52 N.E. 303 (1898). Many of the apparent inconsistencies found in the cases laboring with the question of what constitutes a person's "residence" can be attributed to the fact that some courts equate "residence" with "domicile" and apply rules of law applicable to domicile, while other courts do not. Our Supreme Court has unequivocably stated that for the purpose of our election statutes, the two words are not synonymous. Thus, in applying the legal tests for the determination of Nancy's "residence" to the factual situation before us, we are neither limited to nor bound by the legal rules applicable to the determination of her domicile.

[3-5] For voting purposes, "residence" means "permanent abode." Clark v. Quick, supra, 426; Coffey v. Board of Election Com'rs of East St. Louis, supra, 387; Park v. Hood, supra, 43; Pope v. Board of Election Com'rs of East St. Louis, supra, 199, 200. In sum, "residence" is the principal dwelling place of a person — the place he considers "home." It denotes a permanency of some measure. Two elements are necessary to create a residence: (1) a physical presence in that place and (2) the intention of remaining there as a permanent home. Hughes v. Illinois Public Aid Commission, supra, 380.

[6-8] If a person establishes a place as his residence, a temporary absence therefrom will not cause him to lose his residence if he at all times intended to return at some future time and never intended to permanently abandon the place as his permanent residence. The same is true if a person leaves his residence with only a conditional intention of acquiring a new residence, so long as his intention remains conditional. Park v. Hood, supra, 43; Welsh v. Shumway, 232 Ill. 54, 79, 80, 83 N.E. 549 (1908). It is the intent of the person which is paramount in determining whether he has abandoned or changed a residence. Hughes v. Illinois Public Aid Commission, supra, 380; Bullman v. Cooper, 362 Ill. 469, 476, 200 N.E. 173 (1936); Welsh v. Shumway, supra, 77; Kreitz v. Behrensmeyer, 125 Ill. 141, 195, 17 N.E. 232 (1888).

The distinction between "residence," as the word is used for election purposes, and "domicile," is crucial in this case. Domicile is a continuing thing and from the moment a person is born he must, at all times, have a domicile. Thus, one domicile may not be abandoned until another is acquired. To change domicile requires actually four elements: (1) physical abandonment of the first domicile; (2) an intent not to return to it; (3) a physical presence in a new domicile; and (4) an intent to make that his domicile. In this manner domicile is never lost.

The same is not true for a residence. A person need not at all times have a permanent abode. If a person physically leaves what has been his permanent abode and at any time during his absence acquires an unconditional intent not to return, it is no longer his residence. He may or may not at that time have a new permanent abode or residence. That is a distinct, separate question depending on his physical presence and intent with respect to a new residence. Thus, while a person must retain a domicile until he acquires a new one, it does not follow that the retained domicile ...


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