dissenting.
I respectfully dissent from the rationale and conclusions reached in Dietz v. City of Medora for the reasons hereinafter set forth.
The principal issue is whether or not Rod Tjaden and William Connell are eligible for the offices of mayor and city alderman, respectively. The question can be more refined by stating: Do these individuals meet the qualifications set out by law, including the North Dakota Constitution?
North Dakota Century Code § 40-08-05 provides that:
“No person shall be eligible to the office of alderman if he:
1. Is not a qualified elector of and resident within the ward for which he was elected, except that in cities where aldermen are elected at large, he shall be a qualified elector of and a resident within the city ....” [Emphasis added.]
This Court, in State v. Blaisdell, 18 N.D. 31, 119 N.W. 360 (1909), held that the word “electors” as used in the Constitution means all persons possessing the qualifications as to residence, age, and citizenship, as prescribed by § 121 of the North Dakota Constitution. Section 121 has been replaced by Article II, § 1, which states in part:
“Every citizen of the United States, who has attained the age of eighteen years and who is a North Dakota resident, shall be a qualified elector. When an elector moves within the state, he shall *707be entitled to vote in the precinct from which he moves until he establishes voting residence in another precinct. The legislative assembly shall provide by law for the determination of residence for voting eligibility, other than physical presence. No elector shall lose his residency for voting eligibility solely by reason of his absence from the state.”
By applying the definition of an “elector,” it becomes obvious that NDCC § 40-08-05, as enacted by the Legislature, not only requires an alderman to be a qualified elector of but also requires an aider-man to be a resident within the ward or city, as the case may be. Furthermore, the Legislature did not merely require that the alderman must be a resident of the city, but required the alderman to be a resident within the ward or the city, as the case may be.
This Court has in numerous cases, and as recently as Rothe v. S-N-Go Stores, Inc., 308 N.W.2d 872 (N.D.1981), held that in construing statutory provisions every paragraph, phrase and word must be given full consideration. In interpreting and construing a statute we must construe words and phrases according to the context and the rules of grammar. Technical words and phrases shall be construed according to their appropriate meaning or definition. NDCC § 1-02-03. Apart from the statutory provision, we have a rule that in effect states that the true and full meaning of the words and phrases can only be determined from the context in which they are found.
Maxims of jurisprudence, as found in NDCC § 31-11-05(23) states: “The law neither does nor requires idle acts.” Paraphrasing this concept, we can assume that the Legislature does not perform an idle act and did not perform an idle act when it required an alderman to be an elector of and a resident within the ward.
A brief comparison of other legislative provisions regarding qualifications of and eligibility to certain offices will shed some light. Section 44-01-01, NDCC, as to all officers, provides:
“Every elector is eligible to the office for which he is an elector, except when otherwise specially provided. No person is eligible who is not such an elector.”
Section 40-08-05, NDCC, specifically provides otherwise. Also, NDCC § 40-13-01 applying to all municipal officers, provides:
“No person shall be eligible to hold an elective municipal office unless he is a qualified elector of the municipality and unless he has been a resident thereof for at least nine months preceding the elec-tion_”
Both NDCC §§ 44-01-01 and 40-13-01 are general provisions, whereas § 40-08-05 is a specific provision which prevails over the general. NDCC § 1-02-07.
Significantly, the Legislature has used a different standard for some other offices. As an example, NDCC § 11-10-04 provides as follows regarding county officers:
“Except as otherwise specifically provided by the laws of this state, a county officer must be a qualified elector in the county in which he is chosen or appointed, and a county commissioner must be a qualified elector in the district from which he is chosen.”
Also, regarding township officers, NDCC § 58-05-01 states:
“Every person qualified to vote at a township meeting is eligible to any township office.”
A comparison of these provisions with the provisions of NDCC § 40-08-05 clearly demonstrates that the Legislature has imposed an additional qualification for aider-man in a council form of government — that of being a resident within the ward or city, as the case may be. This additional requirement cannot be overlooked or disregarded in interpreting or construing a statute. If it were overlooked, it would amount to saying that the Legislature performed an idle act.
As stated earlier, the term “elector” already includes the requirement that the person be a resident, so consequently there would have been no need to add the further qualification “resident within” if this is all *708that was intended to be accomplished. By using the two terms it becomes clear that the Legislature intended the alderman to be a resident within the ward and not merely to have a “voting residence” or, as the term is sometimes used, “legal residence.” I am convinced that the Legislature here intended the alderman to be an actual resident, as distinguished from a legal resident or a voting resident.
Regarding the qualifications of a mayor, NDCC § 40-08-14 provides that:
“The chief executive officer of the city is the mayor. He shall be a qualified elector within the city and shall hold his office for four years and until his successor is elected and qualified.
Significantly, the term “and resident within” is not contained in this section.
My interpretation of the statutory provisions leads me to the conclusion that the Legislature used different language clearly indicating a different result. Consequently, the mayor need only be an elector within the city.
I also disagree that the determination of whether or not an individual is a resident is a question of fact. Initially, a determination as to what the facts are must be made, but in applying the facts to the law, either statutory or constitutional, it becomes a conclusion of law. Slope County v. Consolidation Coal Co., 277 N.W.2d 124 (N.D.1979). See also, Miller v. Rambousek, 331 N.W.2d 548 (N.D.1983); Dayap v. Kupperion, 331 N.W.2d 22 (N.D.1983). In this particular instance there is no dispute as to the facts. The only dispute is on the application of the law to the facts. Consequently, this does not involve a finding of fact or the application of the clearly erroneous rule under Rule 52(a), North Dakota Rules of Civil Procedure.
In my application of the law, I would only affirm the decision of the trial court as to the qualification of the mayor, but not as to the office of councilman or alderman.