198
THE GREEN BAG
sixty days in a year. It appeared that during this period he boarded while in the district at a private house, or a hotel, and an effort was made to show that his real home was in Guyencourt, Del. The evidence for the respondent clearly showed that he only spent his summer vacations at Guyencourt and that it was not his residence or home. In fact this con tention was substantially abandoned in ar gument, one of the managers stating "Wit nesses were called to show that the respond ent did not live in Guyencourt. We do not care whether he lived in Guyencourt or whether he did not." He never registered and never voted in Pensacola during that time. Nor did he anywhere else. He paid no poll tax there or elsewhere. On account of his age he was exempt from a poll tax after 1897. As cut down, his district contained in 1900 only about 176,337 inhabitants, less than an ordinary congressional district, and it is obvious that he had relatively very little to do. Under the law he was subject to being ordered to other districts to hold court, ab sences for which purpose were clearly con sistent with a continued residence in his own district. He submitted certificates of days when he was holding court from Janu ary i, 1895, to January i, 1904, from which his counsel made a computation claiming that it showed that the number of days in which court was opened and adjourned by him outside of his district was 8:4, inside of his district 597. Intervening days dur ing that time such as Sundays, holidays, etc., 192, and days used in traveling to courts outside 102, in all 1705 days em ployed in the discharge of his official duties and consistent with his residence in his dis trict, or an average of about 189 days in each year. The managers claimed that the days outside of his district as shown by the certificates were only 570. Shortly after the act of July 29, 1894, was passed, Judge Swayne left St. Augustine where he was then residing within the limits
of the district for which he was "appointed," stating that he "would be compelled to make his residence within the boundaries of his district and that he was going to Pensa cola, and with that declaration he left St. Augustine that summer in the month of July." His family continued to live in St. Augustine until 1896, when they broke up housekeeping and did not resume it until October, 1900, in Pensacola. Meanwhile he made numerous efforts to get a house in Pensacola. May 28, 1898, he registered at the hotel in Pensacola as of "St. Augustine, Fla." Until March 1899, he registered in Pensacola as of "Fla." but on that date and afterward as of "City." There was no seri ous question but that he resided in Pensa cola after October, 1900. In 1903, a house was purchased in Pensacola into which he moved and where he has since resided. The Judiciary Committee in its report re lied upon the case of People v. Owers (29 Colo. 535) as an authority on the question of residence. In that case the court held that the Con stitution required the district judge to main tain his actual residence in his district, as distinguished from a legal or constructive residence or domicile. It was a quo warranto, and the court held that the burden of proof was upon the judge to clearly estab lish such a residence. The facts were as follows : — The judge's term began January 9, 1901. The information was filed Septem ber 9, 1901. "During that time, on account of the state of his health, the judge had not actually resided in his judicial district." He had served a six-year term, ending January, 1901, and until the spring of 1897 he had clearly resided in Leadville, in his district. At that time his health was impaired, re sulting in nervous prostration. He was un able to sleep in such a high altitude, and was advised by his physician that his health and life depended upon his spending as much time as possible in a lower altitude. He was married in October, 1897, and from that time, with the exception of five months at
