State Ex Rel. Hannon v. Grizzard

Smith, C. J., after stating the above. The essential question presented upon the record is as to the proper interpretation of the words used in the constitution, in the clause defining the qualification required of electors and persons holding office. Art. VI, §§1 and 4. *120 Section 1 declares that “every male person born in the United States and every male person who has been naturalized, twenty-one years old or upwards, who shall have resided in the state twelve months next preceding the election and ninety days in the county in which he offers to vote, shall be deemed an elector.” Section 4 declares that “every voter, exceptas hereinafter provided, shall 'be eligible to office.” The exceptions and other qualifications and restrictions elsewhere contained in the constitution, arc not material in the present inquiry. Residence, as the word is used in this section in defining political rights, is, in our opinion, essentially synonymous with domi-cil, denoting a permanent as distinguished from a temporary dwelling-place. There may be a residence for a specific purpose, as at summer or winter resorts, or to acquire an education, or some art or skill in which the animus revertendi accompanies the whole period of absence, and this is consistent with the retention of the original and permanent home, with all its incidental privileges and rights. Domicil is a legal word and differs in one respect, and perhaps in others, in that, it is never lost until auew one is acquired, while a person may cease to reside in one place and have no fixed habitation elsewhere. This rule as to domicil is based upon the necessity of having some place by whose laws in case of death the personal estate must be administered. In defining political immunities, however, both terms indicate a permanent and retained home. Thus, remarks GastoN, J. “By a residence in the county, the constitution intends a domicil in that county. This requisition is not satisfied by a visit to the county, whether for a longer or a shorter term, if the stay there be for cl temporary purpose and with the design of leaving the county when that purpose is accomplished.” Roberts v. Cannon, 4 Dev. & Bat., 269. Domicil is defined by Mr. Justice Stoky, as “the place where a person lives or has his home,” that is, as he adds, where one has his true, fixed, permanent home and principal establishment, and to which, -whenever he is absent, he has the intention of returning. Conf. Laws, §41. *121 The present constitution, in requiring a previous residence in the state and county as a condition in conferring the elective franchise, did not intend to deprive its own citizens of their privileges, as such, when they left the state and resided temporarily beyond its limits, with a constant purpose to retain their homes and return to them when the objects which called them away were attained. This clause meets more especially the case of incoming persons, who are not permitted to exercise political rights until after they have been in the state and county for the prescribed period. Nor has the section of the act of 1876-’77, eh. 275, regulating elections, any application to the present inquiry. Aside from questions of its compatibility with the constitution, if capable of bearing the construction given it in the argument of defendant’s counsel, section eleven does not undertake to declare what shall constitute a residence, as a qualification for voting so much as to designate the'precinct, ward or place of voting in which a qualified elector is to deposit his ballot, and this to prevent fraudulent voting. Applying then the term used in the constitution as indicating a residence, permanent and fixed, to the facts testified to by the relator, the court was fully warranted in saying to the jury that if they believed the witness (the plaintiff) he had made out his case. We are not prepared to say that a protracted residence abroad of one engaged in the ordinary business of life, and with no home in the state, is consistent with the idea of a residence here, and can be controlled in its legal consequences by a hidden purpose in the mind not to abandon his citizenship; but, upon the facts of this case, we think the relator’s constitutional residence remains unchanged, and none of his political rights as a citizen here have been lost by his employment and temporary residence at Washington. Not only does the relator swear to his continuous intention during his absence, but his conduct in paying his taxes and casting his votes, and in frequent returns to the home *122 of his step-mother as to his own, is consistently in support of that intention. We discover no error in permitting the relator to testify to his intent, for it is a material element in the inquiry as to his habitation and home. State v. King, 86 N. C., 603. Nor is there any ground for complaint in the refusal to give the directions requested by the defendant’s counsel. The only remaining exception, necessary to notice, is that taken to the declaration of the court about keeping the jurors together until they agreed upon a verdict, or until the expiration of the term; and to the last instruction as intimating an opinion upon the proofs, in violation of the act of 1796. The conduct of judicial proceedings must be left largely to the discretion of the presiding judge, audit was certainly proper to impress upon the jurors their duty in endeavoring to come to an agreement after a clear and distinct exposition of the law as to what constitutes a residence, as a constitutional prerequisite to filling a public office. The facts testified to were few and simple, and while the intimation of confinement together till a conclusion was reached may have exerted some coercive influence over the minds of the jurors, he was but exercising a discretion reposed in him by law with a view to the ending of litigation. He could refuse to discharge the jury as long as, in his opinion, there was a reasonable ground .for expecting a verdict, and this is about the import of his words; and this was accompanied by the assurance that they should be comfortably provided for in the meantime. Nor does the final instruction convey any opinion as to the weight of the evidence or the facts found under the inhibition of the act. The instruction was entirely appropriate that if the relator’s statements were believed, leaving the credit due to bo given by the jury, the relator’s claim had been made out, and the response to the issue should be in his favor. The case of Nash v. Morton, 3 Jones, 3, is dissimilar, and not an authority for setting aside the verdict upon this ground. *123 There is no error, and the judgment below must be affirmed. Upon this decision being made known to the county commissioners, we assume no obstacle will be interposed to the plaintiff's admission to the vacated office. No error. Affirmed.