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JACK GADD v. JOHN A. THOMPSON

DECEMBER 16, 1987

JACK GADD
v.
JOHN A. THOMPSON



EN BANC

ANDERSON, JUSTICE, FOR THE COURT:

This is an appeal from a decree of a special tribunal in an election contest. The decree held that Jack Gadd was disqualified for election to State House of Representatives for District Thirteen.

In August 1985, Gadd was hired as an assistant women's basketball coach at the University of Mississippi. Until that time, he and his wife had lived at Hickory Flat in Benton County. Commuting proved inconvenient for Gadd, so he bought a house in Oxford, into which his family moved in January 1986. It is undisputed that after that date, the

 Oxford house was the family's actual residence. The Gadds owned no real property in Benton County. However, they continued to register their cars in that county, and requested that the county clerk keep them on the voting rolls there. There is evidence that Gadd told a number of people that he meant to return to Hickory Flat after the Ole Miss job was over.

 On March 13, 1986, Gadd's wife Merri filed for a homestead exemption on the Oxford house. Item 4 on the exemption application states:" I am a bona fide, legal resident of Mississippi and this is the home of my family group, wherein we did reside on January 1, 19___. "The blank is filled in with the numerals" 86 ", and the yes or no boxes at the side are marked" yes. "On January 7, 1987, the Gadd's taxes were paid by their mortgage company, a $90 credit for homestead exemption being allowed. The same procedure was followed when their city taxes were paid to Oxford on March 12, 1987.

 In the spring of 1987 Gadd began to think about running for the State Legislature for House District 13. This district consists of part of Benton, DeSoto and Marshall counties; it does not include Oxford or any part of Lafayette County. On May 29, 1987, Gadd submitted his qualifying statement of intent declaring his candidacy for the democratic nomination for Representative for District 13. He attested he was a" qualified elector for the County of Benton "giving his mailing address as P.O. Box 161, Hickory Flat.

 On June 11, 1987, John A. Thompson, a rival candidate for District 13 nomination, petitioned the State Democratic Party Executive Committee for the de-certification of Gadd on the ground that he was a resident of Lafayette County and therefore, not a resident of District 13. Hearings were held, at which Gadd presented an affidavit from the deputy tax assessor of Lafayette County stating that the Gadd's had received no homestead exemption on their Oxford property in 1986 or 1987. (Gadd, had, in fact, received the exemption, but had refunded the amounts credited as soon as he understood the possible impact of the exemption on his eligibility for office.)

 The party committee decided to uphold Gadd's original certification. The first Democratic primary was held on August 4. Jack Gadd received an absolute majority of the vote in District 13, obviating a run-off and making him the official Democratic candidate. (Since no Republican or independent had qualified, victory in the Democratic primary

 was tantamount to election in that district.)

 Meanwhile, Thompson was unsuccessfully pursuing his appeals through the Democratic Party organization. These having been exhausted, at length he filed a petition for judicial review pursuant to Mississippi Code Annotated, Section 23-15-927 et seq, (Supp. 1987).

 After hearing the evidence, the judge found as a fact that, their affidavits to the contrary notwithstanding, the Gadds had obtained homestead exemption on their property in Oxford. His principal conclusion of law was as follows:

 Regardless of all these other deep and binding and long-standing attachments to Benton County, the purchase of the home and application and obtaining of homestead exemption and the benefit thereunder in tax relief manifested an intent for that to be their residence and it was until changed in June 1987. Therefore, Mr. Gadd could not become a member of the House of Representatives of Mississippi under Article 4, Section 41 [Miss. Const.]

 The judge then ordered a new primary election to be held on the same day as the general election with any necessary run-off to be held two weeks later. As a result of these elections, Andy Morris, who is not a party to this litigation, won the second primary election on November 18 and will thus take his seat in the legislature.

 I. IS THE FILING OF A HOMESTEAD EXEMPTION CONCLUSIVE EVIDENCE THAT THE PARTY SO FILING IS DOMICILED IN THE COUNTY OF FILING?

 Article 4, Section 41 of the Mississippi Constitution provides in part:

 No person shall be a member of the House of Representatives . . . who shall not have been a resident citizen of the State four years and of the county two years, immediately preceding his election.

 This Court has consistently held that for election purposes, residency and domicile are synonymous in Mississippi. Hubbard v. McKey, 193 So. 2d 131, 132 (Miss. 1966); Jones v. State, 207 Miss. 208, 214, 42 So. 2d 123, 125 (1949). Therefore, the key issue in this appeal is whether or not

 Gadd's filing for homestead exemption in Oxford created his domicile there.

 Our definition of domicile was handed down in 1943. In order to be an actual bona fide resident of a county" there must have been (1) an actual residence voluntarily established in said county, (3) with the bona fide intention of remaining there, if not permanently, at least indefinitely. "Smith v. Smith, 194 Miss. 432, 434, 12 So. 2d 428, 429 (1943). Accord, Stubbs v. Stubbs, 211 So. 2d 821, 824 211 So.2d 821, 824 (Miss. 1968). Thus, in the case at bar, the important question is whether filing for homestead exemption establishes Gadd's animus manendi. Is the homestead exemption conclusive evidence that Gadd intended to remain in Lafayette County indefinitely? Thompson relies on the case of Hollowell v. Vandevender, 358 So. 2d 1328 (Miss. 1978). In that case the Hollowells sought to register as voters in Issaquena County, when they had obtained tax exemptions upon their homestead in Washington County. The Hollowell's homestead exemption application contained the printed attestation:" This is the bona fide and only home of my family ...


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