dissenting:
I respectfully dissent.
Section 31-10-201(3)(a), C.R.S.1973 (1977 Repl. Vol. 12) sets forth the standards for determining the residence of a municipal voter. The “objective” or principal-or-primary residence test which the majority reviews was adopted as a statutory test for determining which of two or more possible residences an elector may use for voting purposes. It is axiomatic that the test set forth in the statute should be applied only after an initial determination has been made that the elector does in fact have more than one residence.
The facts in this case are that the Touts did not live in Woodland Park on April 8, 1980. The only residence that they maintained on April 8, 1980 was outside of Woodland Park. The statute which governs the decision in this case was enacted to prevent those who are not residents, and live outside of a municipality, from voting in a municipal election. Theobald v. Byrns, 195 Colo. 330, 579 P.2d 609 (1978), which the majority cites, was effectively limited by the adoption of Senate Bill 251 which became effective on July 1, 1979. Section 31-10-201(3)(a), C.R.S.1973 (1979 Supp.).
In my view, the trial court properly analyzed the stipulated facts. The statute provides in part that: “The residence of a person is the principal or primary home or place of abode of a person ....” At the time of the election the Touts did not maintain a home or abode in the city of Woodland Park. Their mere intention to return to Woodland Park after a residence was built on the lot which they purchased does not amount to residency when measured by the statutory test. Domicile and legal residence are not interchangeable terms. The General Assembly has set forth in unequiv-ocable terms the requirements which entitle a resident to vote in a municipal election.
According, I would affirm the trial court.
QUINN, J., joins me in this dissent.