dissenting. Although the issues here raised cannot be easily resolved, I am not in agreement with the result reached by the majority which holds that Davis was neither a resident nor a domiciliary of Arkansas.
It is necessary therefore to examine the meaning of both of the emphasized words in construing Ark. Stat. Ann. § 42-404 (Repl. 1964).
Residence. This 'Court’s former opinions demonstrate that the word “residence” is subject to construction and that it has a flexible meaning depending upon the circumstances involved. See: Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; State v. Red Oak Trust & Savings Bank, 167 Ark. 234, 267 S. W. 566; Mutual Benefit Health and Accident Association v. Kincannon, 202 Ark. 1128, 155 S. W. 2d 687, and Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585. Other cases could be cited. The cases also reveal that the words “residence” and “domicile” are sometimes interchangeable, depending on the context in which they are used.
The question to be resolved, therefore, is: Did the legislature mean that Davis must have been actually present in this State for ten years, or that he must have been a “domicile” of this State for ten years'? All these matters were properly considered by the trial judge, going to the intent of the legislature.
The majority cite no opinion of this Court, and I know of none, that has ever construed the word “resident” as used in the statute under consideration. The opinion does mention several cases to support it, but, I submit, a close examination reveals that none of them do so.
(a) The Krone case pertains to Attachment, and no statute is cited. It does refer to a Missouri opinion as holding “domicile” and “residence” have the same meaning.
(b) The Jarrel case also deals with Attachment, citing the Krone decision. It does contain these significant statements: ‘ ‘ The question of residence is a mixed one of law and fact.” The Court, referring to the Krone case, said: “The court recognized that the words ‘resident’ and ‘nonresident’ as used in our statute relating to attachments, had never been defined by this Court...”
(o) The Missouri Pacific case dealt with the question of venue under Act No. 314 of 1939. The word used in that Act is “resided”.
(d) The Norton case construed the same Act of 1939 above mentioned, which used the same word, “resided”.
(e) The Harris case again construed the word “resided”.
(f) The Husband casé construed the words “usual place of abode” as used in Ark. Stat. Ann. § 27-330 (Repl. 1962).
(g) The Shelton case construed the word “resided” as used in Ark. Stat. Ann. § 62-203. Webster describes the word “reside” as remain, stay, be present. The same definition is given by Black’s Law Dictionary.
It must be concluded from what is pointed out above that the majority rely on no pertinent decision of this or any other court to sustain its conclusion. If the legislature, in enacting section 42-404, meant that Davis must remain or stay in Arkansas for ten years it would have used the word “reside” as it had done in so many other instances. When it used the word “residence” the legislature, in my opinion, meant Davis must be domiciled in Arkansas for ten years, especially so, being aware of the Arkansas Constitution, Article 19, § 7, which reads:
“Absence on business of the State or of the United States, or on a visit or on necessary private business, shall not cause a forfeiture of residence once obtained.”
However, the majority say Davis was not a domicile of Arkansas. Again, I disagree. It must be conceded, under the undisputed facts in this case, that Davis was at all times away from Arkansas on business either for the United States or on private business.
In view of what has heretofore been said, I submit there is substantial evidence to support the trial court’s finding that the legislature meant for the Director of Police to be a legal resident or domicile of this State. However since the majority hold Davis was not a domicile of Arkansas, that issue must now be examined.
Domicile. Was Davis a domiciliary of Arkansas? That question can only be answered in the affirmative Avhen fair consideration is given to our own unchallenged definition of “domicile” and to the undisputed facts in this case.
In the case of State v. Red Oak Trust & Savings Bank, 167 Ark. 234, 267 S. W. 566, we find this statement:
“To effect a change of residence or domicile there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.”
An examination of the undisputed “facts” in this case is revealing and convincing.
(a) It is not, and cannot be, disputed that Davis was once a domiciliary and legal resident of this State. He was born here in 1933; he married here in 1952; he went to school and taught school in this State; he owned (.and still owns) a home here; his parents and grandparents were domiciled here.
(b) We now look to see if Davis did actually (1) abandon his established domicile with the intent not to return, and (2) to acquire a new domicile with the intent to make it a permanent borne? Based on the facts presently set out I submit that both questions must be answered in the negative.
(1) Davis and his wife both testified they did not abandon their home or domicile in Arkansas, but, to the contrary, they stated they at all times intended to return. There is no testimony to the contrary, the trial judge so found, and I know of no reason for reversing the holding of the trial judge on that feature of the case.
(2) Did Davis acquire a legal residence, domicile, or permanent home elsewhere? I submit the answer must be “no”.
I concede appellant’s right to argue, in this connection, that Davis’ “actions” speak louder than his “words”. In doing so, they must rely on the Texas and the Wyoming incidents to show his “actions”. Consequently, it is necessary to examine the record relative to those “incidents”.
Texas. In 1960, while Davis was living in his hometown of Texarkana, Arkansas, he took a job to sell houses just across the state line in Texas. He moved there and bought a house at the suggestion of his employer, because he thought it would help to sell more houses. He lived and worked there about one year when he secured a job with the F. B. I. He tried to sell the house when he left but could not find a buyer. Relative to this incident he testified: “When I moved in this house in Wake 'Village, Texas, I did not have any intention of making this my permanent home. I wanted to get back to Texarkana, Arkansas, as soon as I could. ’ ’ There is no testimony to the contrary, and I submit the trial judge was fully justified in believing Davis.
Wyoming. After Davis was sent by the F. B. I. agency to several other states he was assigned to duty at Rock Springs,. Wyoming. There he rented, a house where he remained approximately two years. He left there in the summer of 1966, on orders, and went to California where he lived in two different places. Davis’ undisputed testimony was that he never intended to make Wyoming his home, hut always was trying to get the F. B. I. to send him back to Arkansas. Again, this testimony satisfied the trial judge, and it satisfies me.
Appellants lay great stress on the fact that Davis registered in Wyoming to vote for a friend, to show he intended to make Wyoming his domicile or permanent home. The. trial judge did not think, and I do not think any such intention is reasonably deducible. Davis had been a resident of Wyoming for more than a year, and he could have reasonably concluded that thjs gave him a legal right to vote. Wy. Stat. § 22-133 reads, in pertinent part, as follows.:
“Every citizen of the United States of the age of 21 years and upward who has resided in the state one year . . . and who has complied with the registration laws . . . shall be entitled to vote . . . .” (Emphasis ours.)
It is admitted by everyone that Davis had “resided” in Wyoming one year, and therefore had a perfect right to register and to vote. How anyone can conclude, from that incident, Davis did, or could have meant to, abandon his domicile in Arkansas is beyond my comprehension.