ON MOTION FOR REHEARING. Learned counsel for the appellant (contestant) have filed a motion for rehearing in which, among other things, they complain most earnestly of our reliance upon the cases of Hall v. *Page 720 Schoenecke, 128 Mo. 661, 31 S.W. 97, and Goben v. Murrell,195 Mo. App. 104, 190 S.W. 986, as controlling this case in all essential respects.
We are aware that the facts of those cases are not on all fours with the facts of the case at bar in many material features; and what we had in mind in referring to those cases as controlling was simply that the rules of law announced in those cases were sufficient to govern the determination of this. Concededly the students involved in Hall v. Schoenecke were ultimately denied the right to vote, but the judgment entered in the Supreme Court was but one of affirmance of the finding of the trial court upon an issue of fact as to the intention of the individual students in claiming the college town of Tarkio as their residence. In other words, the Supreme Court approached that case upon an appeal from the judgment of the circuit court rejecting the votes of the students, and held that upon an issue of fact as to residence there was substantial evidence to support the lower court's finding; but in so doing, the Supreme Court nevertheless took occasion to point out, as we ourselves have pointed out in our principal opinion, that the question of residence is largely one of the particular person's intention, and that whether a change of residence is effected in any given instance depends upon the intention with which the removal from the former residence was made. Here, however, we have the directly contrary situation, where the trial court, upon evidence warranting conflicting inferences as to the question of change of residence, has refused to interfere with the action of the election officials in according the students in question the right to vote, and where we, as an appellate court, must uphold the judgment of the trial court if the facts and the law may be said to warrant its affirmance.
Likewise, in Goben v. Murrell, the students at the American School of Osteopathy in Kirksville were denied the right to vote; but regardless of what else may be said for or against the result of that opinion, one highly material element, which is present in this case, was lacking from the agreed statement of facts upon which such opinion was based, which was the element of permanent removal of the students from their former residences.
Nor is our decision in this case to be construed as denying to any one the privilege in the future of challenging the right of any individual student in Concordia Seminary to vote in the City of Clayton. We repeat that this case has not been tried and presented upon the question of the right of any individual student to have voted, depending upon whether he personally had established a bona fide residence in the City of Clayton. Rather, the case has been fought out solely upon the question of the voting qualifications of members of the student body at large, the nature and character of the school *Page 721 itself considered. All that we have held is that while the mere fact that the challenged voters were students at the seminary neither deprived them of, nor in and of itself gained for them, the right to vote in the City of Clayton, yet if they permanently abandoned their former residences upon matriculating at the seminary and thereafter regarded it as their present abiding place, it necessarily must have become their place of residence for voting purposes because under such circumstances they could have claimed no other voting residence. And, of course, whether the facts and circumstances attending the case of any individual student meet such test will be a matter for the election officials to determine when such student presents himself to vote and his right to vote is challenged.
It is no doubt true, as counsel suggest, that the votes of so many students may prove an important factor in determining the result of elections in the City of Clayton; but that such may be the case is obviously no ground for denying them the right of suffrage if they otherwise possess the required qualifications. It may also be true, though the record is silent upon the question, that the students neither own property nor pay taxes in the City of Clayton; but the best answer to this suggestion is that such matters have not been prescribed as necessary qualifications for voters. In any event, the students, along with all other persons, are amenable to the laws, and are entitled to the enforcement of the laws for the protection of their persons and such property as they possess; and consequently the students, along with all other persons, have an interest in the election of such candidates to office as in their opinion are best qualified for the positions they seek and will fairly and justly strive to maintain the governmental structure.
Appellant's motion for rehearing should be overruled; and the commissioner so recommends.