Request By:
Honorable James Terry Hodges
Attorney at Law
108 North Reed Street
Columbia, Kentucky 42728
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 11 in which you state that you have a client who is seeking the office of magistrate. You further state that you are aware of the constitutional requirement that a magistrate be a resident of the district for one year preceding the election. You relate the following facts and raise the question as to whether or not he would be qualified for said office.
". . . I have a client who is seeking to run for magistrate in Adair County, Kentucky. For the past three months he has lived outside the magisterial district. It is his position that his residence is still within the district and that he is domiciled temporarily outside the district waiting for his new home to be built within the confines of the magisterial district. . . . My client owns property within the district, he works every day in the district and he maintains other ties within the district. Is he qualified to run for magistrate in the said district?"
It is sometimes difficult to determine one's legal residence since it is based upon fact and intention and such is, of course, a question for the courts to decide. As we said, legal residence in Kentucky is based upon fact and intention and consists of actual residence at a place in Kentucky, coupled with the intent to remain there. See Nunn v. Hamilton, 26 S.W.2d 526, 233 Ky. 663 (1930). Intention is the dominant factor in determining legal residence and when actual residence is established, coupled with the intention to make one's home at that address permanently, the person becomes a legal resident thereof, even though he lives elsewhere temporarily.
To review the law more fully on the question with respect to residence for voting purposes we refer you first to the provisions of KRS 116.035, which read as follows:
"(1) A voter's residence shall be deemed to be at the place where his habitation is, and to which, when absent, he has the intention of returning;
"(2) A voter shall not lose his residence by absence for temporary purposes merely; nor shall he obtain a residence by being in a county or precinct for such temporary purposes, without the intention of making that county or precinct his home;
"(3) A voter shall lose his residence by removal to another state or county with intention to make his permanent residence there, or by removal to and residence in another state, with intention to reside there an indefinite time, or by voting there, even though he may have had the intention to return to this state at some future period.
"(4) The place where the family of a married man resides shall generally be considered his residence, unless the family so resides for a temporary purpose. If his family is permanently in one (1) place, and he transacts his business in another, the former shall be his residence."
The Court of Appeals in defining the term "residence" has held that it means legal domicile as distinguished from the place of actual abode and it is not lost by temporarily departing with the intention of returning. See Elam v. Maggard, 165 Ky. 733, 178 S.W. 1065 (1915).
In the case of Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58 (1946), the Court of Appeals expressed the following legal requirements for establishing an individual's right to register and vote at a particular location:
". . . Residence for the purpose of voting means a place of fixed domicile, and carries with it the element of permanence; there must be the act of abiding, coupled with the intention of remaining and making the place one's home to the exclusion of other places. Intent may not be proved by mere declarations. The declarations are to be judged by the conduct of the party, and where there is a discrepancy they yield to the conclusion to be drawn from his acts . . ."
The everman case, supra, contains many factual situations, some of which appear pertinent to the question presented by you. For example, the court cited the case of a former county official of Powell County that had moved to Lexington about three years before the election where he continued to be employed. This man had sold his property in Powell County but had left some furniture and he testified that he regarded Powell County as his home, and intended to return there some day. The court gave him the benefit of the doubt, and held that he was entitled to vote in Powell County. In another situation we find a well driller who went from place to place drilling wells but who always treated Powell County as his permanent residence where he had voted continually. The court held that he was entitled to vote in Powell County notwithstanding he had actually resided in Menifee County for more than two years before the election. Another case is that of a farm tenant who stated that he had temporarily moved to another precinct for the purpose of cultivating some land. The court held that he was entitled to vote in his old precinct where he had left furniture in a tenant house.
Assuming that your client did not reregister in the magisterial district to which he temporarily moved [which would indicate a change in legal residence] , it would appear that in all probability he would be qualified as far as residency is concerned, to hold the office of magistrate. However, as you know, each case of this type stands on its own bottom so to speak and it would be ultimately up to the courts to decide this question, particularly since there may be other factors sufficient to refute his contention.