                  OFFICE OF THE ATTORNEY GENERAL

                        State of California


                       JOHN K. VAN DE KAMP

                         Attorney General


               -----------------------------------
                                :

             OPINION	           :

                                : No. 88-791

               of	              :

                                : FEBRUARY 17, 1989

       JOHN K. VAN DE KAMP      :

        Attorney General        :

                                :

         N. EUGENE HILL         :

   Assistant Attorney General 	 :

                                :

----------------------------------------------------------------

          ALBERT J. KING has requested leave to file suit in quo

warranto to challenge the qualifications of Tony Silva to hold

elected office in the City of Huron.     The dispute arises as a

result of the maintenance of two separate residences by Mr. Silva,

one in the City of Kerman and one in the City of Huron.


          Mr. King's request raises the issue of whether or not Mr.

Silva is qualified to hold elective office in the City of Huron. 


                            CONCLUSION


          It is determined that leave to sue should be denied. 


                   STATEMENT OF MATERIAL FACTS


          Mr. Silva has been a member of the City Council of Huron

since 1978. He was first selected as mayor by the members of the

City Council in 1982.    He was reelected to the City Council in

November of 1986 and was again selected mayor by his colleagues.1/


          On or about April 5, 1983, Mr. Silva and his wife Martha

purchased a home located at 11510 W. Stanislaus in the City of



     1. The statement of facts is based upon assertions made by

each party which have either been admitted or not controverted by

the other party. In his declaration submitted to this office,

Mr. Silva claims that when he was approximately 15 years old, his

family moved to 18754 11th Street in the City of Huron. 




                                1.	                         88-791

Kerman, approximately 38 miles from the City of Huron. The Silvas

subsequently filed a claim for a homeowners' property tax exemption

on the property in the City of Kerman.


          Sometime in July of 1983, Mr. Silva moved a 1,200 square

foot mobile home trailer, complete with two bedrooms, a bath and

kitchen, onto the property located at 18754 11th Street in the City

of Huron. The mobile home is owned by his brother-in-law. Since

October of 1983, the Silvas spend at least one to three nights a

week at the mobile home in the City of Huron.


             CONTENTIONS OF THE PROSPECTIVE PARTIES


          Mr. King contends Mr. Silva's residence is in the City of

Kerman and not in the City of Huron.        As such, he contends

Mr. Silva has usurped, intruded into and unlawfully held and

exercised the office of City Councilman in the City of Huron. Mr.

King therefore claims Mr. Silva is in violation of Government Code

section 36502, which relates to the qualifications of a city

councilman.2/


          Mr. Silva, however, declares the mobile home located in

the City of Huron to be his permanent domicile. In support of his

claim, Mr. Silva contends he registered to vote in 1973 and listed

as his address P.O. Box 364, Huron, California.         It is his

contention that he is still registered to vote at this address. He

also states that his driver's license from 1982 to the present

lists the post office box as his address and lists his street

address as 18754 11th Street, Huron, California. He asserts that

the gas and electric bill for the mobile home is listed under his

name and is sent to the post office box in the City of Huron.

Further, he claims all of his mail is received at the Huron

address.





     2. The parties raise the propriety of realtor's counsel's

participation in this matter, since he had previously advised the

proposed defendant on this issue. Also at issue, is the

propriety of the city attorney's representation of the proposed

defendant. Further, the proposed defendant claims this matter

arose as a result of an investigation by the Fresno County

Sheriff's Department occurring on or about August 29, 1986,

involving certain establishments, one of which was owned by the

proposed realtor. These issues are, however, outside the scope

of this inquiry. 




                                2.                          88-791

                             ANALYSIS


                                I


                    CRITERIA FOR QUO WARRANTO


          In deciding whether to grant leave to sue in quo

warranto, the Attorney General considers the following factors:


          1. Whether there is a substantial issue of law or fact

     within the scope of the Code of Civil Procedure section 803,

     that requires judicial resolution.


          2. Whether the public interest will be served by seeking

     a judicial resolution of the issue.


          An action in quo warranto challenging the qualifications

of an office-holder may be brought only by the Attorney General or,

with the Attorney General's consent, by a private party (Code Civ.

Proc. §§ 803, 810).    Quo warranto actions are commenced in the

interest of the public to redress wrongs that injure the public

(City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 650; People

v. Lowden (1855) 2 Cal. Unrep. 537, 542).


           Historically, the Attorney General has not granted leave

to sue in quo warranto unless some "public purpose" would be served

(e.g., 36 Ops.Cal.Atty.Gen. 317, 319 (1960); 29 Ops.Cal.Atty.Gen.

204, 208 (1957); 27 Ops.Cal.Atty.Gen. 225, 229 (1956); 26

Ops.Cal.Atty.Gen. 180, 190 (1955); 21 Ops.Cal.Atty.Gen. 197, 201

(1953).)    The "public purpose" requirement has been viewed as

requiring "a substantial question of law or fact which calls for

judicial decision." (25 Ops.Cal.Atty.Gen. 237, 240 (1955).) While

"it is not the province of the Attorney General to pass upon the

issues in controversy, but rather to determine whether there exists

a state of facts or questions of law that should be determined by

a   court"    (25   Ops.Cal.Atty.Gen.    332,   341    (1955);   24

Ops.Cal.Atty.Gen. 146, 151-152 (1954); 19 Ops. Cal. Atty. Gen. 87,

88 (1952); 17 Ops.Cal.Atty.Gen. 46, 47 (1951); 15 Ops.Cal.Atty.Gen.

62, 63 (1950)), the mere existence of a legal dispute does not

establish that the public interest requires a judicial resolution

of the dispute or that leave automatically should be granted for

the proposed realtor to sue in quo warranto. In City of Campbell

v. Mosk, supra, 197 Cal.App.2d 640, the court said:


          "We do not believe ... that the debatable issue

     inevitably produces the quo warranto.        Indeed, the

     Attorney General's exercise of discretion is posited upon

     the existence of a debatable issue. To hold that the

     mere presentation of an issue forecloses any exercise of

     discretion would mean, in effect, that contrary to the




                                3.                          88-791

     holding in the Lamb [v. Webb (1907) 151 Cal. 451] case,

     the Attorney General could exercise no discretion. The

     crystallization of an issue thus does not preclude an

     exercise of discretion; it causes it.


          ". . . . . . . . . . . . . . . . . . . . . . .


          "The exercise of the discretion of the Attorney

     General in the grant of such approval to sue calls for

     care and delicacy. Certainly the private party's right

     to it cannot be absolute;        the public interest
     prevails. . . ."        (197 Cal.App.2d at 650; 67
     Ops.Cal.Atty.Gen. 151-154.)

                                II

          ARE THERE JUSTICIABLE ISSUES ON THE QUESTION 

          OF PROPOSED DEFENDANT'S RESIDENCY 


          In reviewing the application of the realtor for leave to

sue, two questions must be answered:     Has the proposed realtor

raised a substantial question about the qualifications of the

proposed defendant to hold office? And if he has, would the public

interest be served by resolution of the question? 


          Mr. King claims Mr. Silva is not qualified to hold office

pursuant to Government Code section 36502. This office has been

informed by the Council of County Governments that the City of

Huron adopted a city manager form of government.         Thus, the

qualifications of its elected officers to hold office are

determined pursuant to Government Code section 34882. 


          Government Code section 34882 provides: 


          "A person is not eligible to hold office as a member

     of a municipal legislative body unless he is otherwise

     qualified, resides in the district and both resided in

     the geographical area making up the district from which

     he is elected and was a registered voter of the city at

     the time nomination papers are issued to the candidate as

     provided for in Section 22842 of the Elections Code." 


          In addition, Government Code section 1770 provides, in

pertinent part, as follows: 


          "An office becomes vacant on the happening of any of

     the following events before the expiration of the term:



          ". . . . . . . . . . . . . . . . . . . . . . .




                                4.                          88-791

          "(e) His ceasing to be an inhabitant of the state,

     or if the office be local and one for which local

     residence is required by law, of the district, county, or

     city for which he was chosen or appointed, or within

     which the duties of his office are required to be

     discharged; provided, however, that the office of judge

     of a municipal or justice court shall not become vacant

     when, as a result of a change in the boundaries of a

     judicial district during an incumbent's term, said

     incumbent ceases to be an inhabitant of the district for

     which he was elected or appointed to serve." 


           The term "resides" as used in section 34882 is not

defined nor is the term "residence" as used in section 1770(e).

However, 


          "In determining the place of residence the following

     rules shall be observed: 


          "(a) It is the place where one remains when not

     called elsewhere for labor or other special or temporary

     purpose, and to which he or she returns in seasons of

     repose. 


          "(b) There can only be one residence.   


          "(c) A residence cannot be lost until another is

     gained. 


          "(d) The residence of the parent with whom an

     unmarried minor child maintains his or her place of abode

     is the residence of such unmarried minor child. 


          "(e) The residence of an unmarried minor who has a

     parent living cannot be changed by his or her own act. 

          "(f) The residence can be changed only by the union

     of act and intent. 


          "(g) A married person shall have the right to retain

     his or her legal residence in the State of California

     notwithstanding the legal residence or domicile of his or

     her spouse." (Gov. Code, § 244.) 


          The California Supreme Court has recognized that the term

"residence" as used in Government Code section 244 actually means

"legal residence" or "domicile." Walters v. Weed (1988) 45 Cal.3d

1, 7; Smith v. Smith (1955) 45 Cal.2d 235, 239; Fenton v. Board of

Directors (1984) 156 Cal.App.3d 1107, 1113.       We believe that

definition should apply to Government Code sections 1770 and 34882.





                                5.                          88-791

          Elections Code section 200, subdivision (a), defines the

term "residence" as meaning a person's "domicile" for voting

purposes. It defines the domicile of a person as that place in

which his or her habitation is fixed, wherein the person has the

intention of remaining, and to which, whenever he or she is absent,

the person has the intention of returning. At any given time, a

person may only have one domicile. (See Elec. Code, § 200, subdiv.

(b).)   Subdivision (c) of section 200 of the Elections Code

provides, however, that the residence of a person is that place in

which the persons' habitation is fixed for some period of time, but

wherein he or she does not have the intention of remaining. It

further provides that at any given time, a person may have more

than one residence, but may not have more than one domicile. 


           While Mr. Silva may have established "residency" in the

City of Huron, the question becomes whether or not he is domiciled

in that city pursuant to Government Code sections 34882 and

1770(e). 


          The test for determining a person's domicile is physical

presence plus an intention to make that place his permanent home.

(Fenton v. Board of Directors, supra, 156 Cal.App.3d at 1116.) In

applying this test, reviewing courts have looked at a number of

factors in order to determine a person's domicile. ( Id.)      For

example, where a person votes, acts, and declarations of the party

involved and a person's mailing address. (Id., citations omitted.)


          To insure that everyone has a domicile at any given time,

the statutes adopt the rule that a domicile is not lost until a new

one is acquired. Government Code section 244(c); Walters v. Weed,

supra, 45 Cal.3d 1, 7.


           In the declaration submitted by Mr. Silva to this office,

he declares that his extended "family" (presumably parents and

siblings) has resided at 18574 11th Street in Huron since 1969.

Mr. Silva declares this address to be his residence.         In 1981

Mr. Silva declares he married his wife Martha and that they spent

two to three nights a week at his residence in Huron. In 1983, Mr.

Silva states they purchased a home in the City of Kerman, but that

they still spent two to three nights a week at the residence in

Huron.   Mr. Silva declares that since October 1983, he and his

family (presumably Martha and their two children) spent at least

one to three nights a week in the mobile home owned by his brother­
in-law, Joe Garcia, located at 18574 11th Street, in the City of

Huron.    Mr. Silva declares he considers the mobile home his

permanent domicile and that his driver's license and vehicle

registration lists the City of Huron as his residence. He further

declares he had continuously been a registered voter in the City of

Huron since 1973. 





                                6.                           88-791

          Mr. Silva cites the case of Fenton v. Board of Directors,

supra, 156 Cal.App.3d 1107, in support of his position that he

meets the qualifications to hold office in the City of Huron.

Fenton involved the question of whether or not a member of the

board of directors (Fenton) of the Groveland Community Services

District was a resident of the district and qualified to hold

office.   Fenton owned real property on Big Oak Road in Big Oak

Flat, California, which was within the boundaries of the Groveland

Community Services District. Fenton also owned real property in

Ferndale, California, which was approximately four miles outside

the boundaries of the district.      Fenton claimed a homeowner's

exemption on the Ferndale property, listed her telephone number in

the phone directory with the Ferndale address, and lived almost

exclusively at the Ferndale address. (Id. at 1111-1112.) Fenton,

however, had been registered to vote at the Big Oak Flat property

address since 1950, with the exception of one year, 1977; regularly

visited the Big Oak Flat property varying from at least once a day

to a few times a month; considers the Big Oak Flat address as her

home, and uses that address on her driver's license, vehicle

registration, concealed weapons permit, and voter's registration.

(Id. at 1112.) 


          The court upheld the trial court's finding that although

Fenton had been physically residing outside of the district, she

was in fact "domiciled" within the district and was therefore

"residing" within the district under Government Code section 61200.

(Id. at 1117-1118.) The evidence established that when she moved

to the property within the district it became her domicile. Her

intent, thereafter, was manifested by her declarations at trial,

her actions, as manifested by her consistent listing of the

property address as her residence, and the fact that she

consistently returned to the property to check on its welfare, all

supported the conclusion that her domicile was in fact her

residence within the district. ( Id.) Also, the court found the

trial court did not err in considering the rebuttable presumption

of a domicile pursuant to Election Code section 211, relating to a

person who maintains homeowner's property tax exemption on dwelling

of one of his or her residences, in order to determine Fenton's

domicile.   Although Fenton had previously applied for such an

exception on the property outside the district, the presumption was

not found to apply, because her driver's license listed a post

office box address within the district as her residence address.

The court held that substantial evidence supported the conclusion

that the post office box address was in fact the equivalent of a

residence address, considering the location was a rural area. (Id.

at 1115-1116.) 


           The Fenton case is indeed very similar to the Silva

situation.    The burden of proving residence is on the party

alleging it. ( Catsiftes v. Catsiftes (1938) 29 Cal.App.2d 207,




                                7.                          88-791

210.) In 8 Ops.Cal.Atty.Gen. 221 (1946), this office denied leave

to sue in quo warranto under similar factual circumstances, finding

that direct evidence of lack of intent to change residence,

including the proposed defendant's declaration of his intent,

outweighed circumstantial evidence connecting the proposed

defendant to another residence.       The evidence as heretofore

presented appears to lead to the same conclusion. (See Fenton v.

Board of Directors, supra, 156 Cal.App.3d 1107, 1117.) 


          In the present application, there is evidence in the

Declaration of Silva to indicate substantial personal activity in

and about his Kerman home or "residence." However, there is also

significant personal activity associated with the Huron residence.

While the question of domicile is a mixed question of law and fact

(Fenton v. Board of Directors, supra, 156 Cal.App.3d at 1117), many

factors enter into the equation, including where an individual is

registered to vote and his or her address for mail (Ballf v. Public

Welfare Department (1957) 151 Cal.App.2d 784, 788-89), where tax

returns are filed (Johnson v. Johnson (1966) 245 Cal.App.2d 40,

44), where an automobile is registered (8 Ops.Cal.Atty.Gen. 221

(1946)), and where a homeowner's exemption or renter's credit is

taken (Elec. Code § 211). However, the critical element is that of

intent. While declarations of intent are significant, they are not

determinative. The acts must be examined as well. Mauro v. Dept.

of Mental Hygiene (1962) 207 Cal.App.2d 381, 389. 


          An examination of all the facts presented to us indicates

that Mr. Silva intended to maintain his domicile in the City of

Huron. The facts presented to us are not seriously in dispute. 


          In considering this application, "it is not the province

of the Attorney General to pass upon the issues in controversy or

to indicate whether the proposed plaintiff or defendant should, in

his opinion, prevail, but rather he is to determine whether there

exists a state of facts or question of law that should be

determined by a court in an action in Quo Warranto."           (19

Ops.Cal.Atty.Gen. 87, 88 (1952).) 


          Here,   as   in   the    situation   before   us   in   8

Ops.Cal.Atty.Gen. 221, supra, we have been provided the relevant

facts. While one party may emphasize one portion of the facts to

the exclusion of other facts, they appear not to be in dispute.

Here, as in our previous opinion, "[w]hen weighed against the

direct evidence produced by and on behalf of the proposed defendant

the showing made by the proponents is not persuasive . . ." to

establish that Mr. Silva is not a resident of the City of Huron (8

Ops.Cal.Atty.Gen. 221, 223; c.f. Fenton v. Board of Directors,

supra, 156 Cal.App.3d 1107). 





                                8.                          88-791

          We are also mindful of the general principle that

ambiguities concerning the right to hold public office should be

resolved in favor of eligibility. Helena Rubenstein Internat. v.

Younger (1977) 71 Cal.App.3d 406, 418. 


          "We consider disqualification from public office a

     significant civil disability. In California, the right

     to hold public office has long been recognized as a

     valuable right of citizenship. In 1869, in People v.

     Washington, 36 Cal. 658, 662, our Supreme Court declared

     that '[t]he elective franchise and the right to hold

     public offices constitute the principal political rights

     of citizens of the several States.' In Carter v. Com. on

     Qualifications etc., 14 Cal.2d 179, 182 [93 P.2d 140],

     the court pointed out:     '[T]he right to hold public

     office, either by election or appointment, is one of the

     valuable rights of citizenship . . . The exercise of

     this right should not be declared prohibited or curtailed

     except by plain provisions of law. Ambiguities are to be

     resolved in favor of eligibility to office     . . . ."

     (Italics added.) More recently, the high court, citing

     Carter, has termed the right to hold public office a

     'fundamental right.' (Zeilenga v. Nelson, 4 Cal.3d 716,

     720 [94 Cal.Rptr. 602, 484 P.2d 578];      Fort v. Civil

     Service Commission, 61 Cal.2d 331, 335 [38 Cal.Rptr. 625,

     392 P.2d 385].) Thus, any ambiguity in a constitutional

     provision calling for forfeiture of an existing office

     and disqualification from holding public office should be

     resolved in favor of continued eligibility. . . ."

     (Helena Rubenstein Internat. v. Younger, supra, 71

     Cal.App.3d at 418.) 


          We believe that principle should also guide us in this

situation. 


          Historically, the Attorney General has not granted leave

to sue in quo warranto unless some public purpose would be served.

(67 Ops.Cal.Atty.Gen. 151, 153 (1984).) The mere existence of a

legal dispute does not establish that the public interest requires

a judicial resolution of the dispute or that leave automatically

should be granted for the purposed relator to sue in quo warranto.

(Id., at 154.) As stated in City of Campbell v. Mosk, supra, 197

Cal.App.2d 640, 650: 


          "The exercise of the discretion of the Attorney

     General in the grant of such approval to sue calls for

     care and delicacy. Certainly the private party's right

     to it cannot be absolute; the public interest prevails."





                                9.                          88-791

          However, as stated above, under the facts and

circumstances of this matter, the demonstrated intent of Mr. Silva

is to remain a resident of the City of Huron. We believe that the

authorization of this proceeding would not serve the public

interest. For the foregoing reasons, leave to sue is denied. 


                            * * * * *





                               10.                         88-791

