Newman v. United States ex rel. Frizzell

Mr. Justice Van Orsdel delivered the opinion of the Court: The matters disposed of in our former opinion are again advanced in this appeal. They will not be reconsidered, but we will -confine ourselves to the new questions presented. Exception was taken to the ruling of the court in refusing to admit in evidence a transcript of the testimony taken before the committee of the Senate while it had under consideration the confirmation of the President’s nomination of respondent to the office in question. This evidence was incompetent, and could have no relevancy to the present issue, which involves respondent’s right to hold the office, and not. the motives which prompted the President and the Senate in making the appointment. Besides, it is not quite clear in what respect respondent can claim injury from this ruling. The transcript offered contains, so far as it goes, the same testimony given by respondent in this case. It merely would have duplicated a portion of the evidence submitted to the jury, to no purpose except to encumber the record. It is urged by counsel for respondent that the court erred in granting relator the right to open and close in the submission of the evidence, and the right- to open and close the argument to the jury. The court properly instructed the jury that Ihe burden of proof was upon relator. Mere possession of the office, accompanied by a commission from the proper appointing power,, created a presumption that respondent possessed the legal qualifications to hold the office. The affirmative was, therefore, cast upqn relator of overcoming this presumption, which, under our practice, required him to open and close the evidence and the argument. It is difficult, however, to understand just how respondent could be damaged by having the burden cast upon relator. The form of the writ would seem to indicate that the burden is upon respondent to show his lawful possession of the office. This was the early English practice, where the writ was prerogative, and issued in the name of the King. But that practice has not been followed in this country. Here the writ has fallen — 59 — into disuse, and the proceeding is initiated by information in the nature of a civil proceeding to try the right 1o office. In State ex rel. Danforth v. Hunton, 28 Vt. 594, the court, considering the question of practice in quo warranto^ said: “The form of the issue, requiring the defendants to show cause, would seem to indicate, in form, that the defendants would be required to go forward in the case. .But it seems to us that the form of the issue in the case does not correctly define the true position of the parties, in regard to the presumption of right. The defendants are in possession of the office in question, ,and should be presumed regularly elected and entitled to hold until the contrary be shown. The plaintiffs, then, are bound to make a case against them, and they should go forward in the proof and in the argument.” In State ex rel. Bornefeld v. Kupferle, 44 Mo. 154, 100 Ana. Dec. 265, the court held an information in the nature of a writ in quo warranto to be a civil proceeding, casting the burden upon the relator to remove the presumption wdiich exists in favor of the regularity of respondent’s appointment and his right to hold the office. It was not error to require relator to go forward in the trial. Respondent objected to the submission to the jury of evidence relative to his registering at- hotels from Chicago, and in one or two instances from Princeton, New Jersey. The object of registering in hotels is to advise the hotel management of the present address of the guest, where, if necessary, he can be reached speedily, and it may, or may not, indicate his domicil or legal residence; but in all cases it should indicate his real or actual present residence. Hence, as a fact showing actual residence, if it appears that the address given corresponds to the alleged actual place of abode of the party, it is certainly competent as tending to establish that fact. In submitting this evidence the court- instructed the jury: “You should take into consideration all the evidence on this intention to return, namely, what he did in Chicago, the manner in which he lived there, his activities, his name appearing in the city directory, which, while he said he was not responsible for it, is an evidentiary fact of some importance, though not great, to my mind. I also give — 60 — little weight, and I think you should give little tveiglit, to the mere question of registration in the hotel registers from different cities. It is a fact to be considered, but I think entitled to very little weight in determining his intention to return.” We agree with the court below that the evidence had little or no importance in determining the intention of respondent to return, but its effect would be different on the question of actual residence. Respondent, however, is not in position to complain of this instruction, since no objection was interposed to the admission of the evidence upon which the instruction was based. Being before the jury without objection or exception, the court disposed of the evidence in a much less prejudicial manner to respondent than was possible finder the view we entertain of its competency and relevancy to the principal issue in the case. A more difficult question is presented in the refusal of the court to instruct a verdict for respondent. Counsel for respondent requested an instruction to this effect at the conclusion of relator’s testimony, and removed it when the evidence in full was concluded. Exception to the ruling of the court was taken, and this presents the chief question in the case. It goes directly to the right of respondent to hold the office to which he has been appointed. The proposition is squarely presented, whether or not respondent was an actual resident of the District of Columbia for three years prior to his .appointment. It involves the difficult task of drawing the distinction (if, indeed, it can be done from the confusion of opinión) between domicil and residence. The most accurate definition of domicil to which our attention has been called is contained in Mitchell v. United States, 21 Wall. 350, 22 L. ed. 584, where the court approves the definition from Guier v. O’Daniel, 1 Binn. 349, note, in which it is defined as “a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.” The court then defines it more elaborately, as follows: “By the term ‘domicil,’ in its ordinary acceptation, is meant the place where a person lives and has his home. The place where a person lives is taken to be his domicil until — 61 — facts adduced establish the contrary. * * * A domicil once acquired is presumed to continue until it is shown to have been changed. Where a change of domicil is alleged, the burden of proving it rests upon the person making the allegation. To constitute the new domicil two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto el animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicil for another. Until the new one is acquired, the old one remains. There principles are axiomatic in the law upon the subject.” It will be observed that to establish a domicil two things are indispensable, — residence, and the intention to remain permanently at the place where residence is established. It logically follows, however, that there may be a residence without the intention of establishing a domicil; but, without the intention, in conjunction with the residence, there is no domicil. And when a domicil is thus established, mere absence from it will not effect a change. There must exist the intention before a change can be effected. In other words, residence may exist without establishing a domicil, but domicil cannot be established without residence. Residence may be separated from the domicil, and the domicil still remain. But where the retention of domicil depends exclusively upon the intention to return at some indefinite time and resume residence, we think such intention must be evidenced by something more than a mere mental concept; it must be coupled with some outward manifestation indicative of a fixed purpose. In other words, a mere floating intention to return is not sufficient to retain domicil. “If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, it is to be deemed his place of domicil, notwithstanding he may entertain a floating intention to return at some future period.” Story, Confl. Laws, sec. — 62 — 46. See also Bradstreet au Bradstreet, 7 Mackey, 229; Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107. .Where a person moves from his domicil, and leaves nothing behind indicating an intention to return, and establishes a fixed place of abode for himself and family in the new place of residence, it creates a presumption of change of domicil. The rule is stated in Ennis v. Smith, 14 How. 400, 422, 14 L. ed. 472, 482, as follows: “But what amount of proof is necessary to change a domicil of origin into a prima facie domicil of choice ? It is residence elsewhere, or where a person lives out of the domicil of origin. That repels the presumption of its continuance, and casts upon 'him who denies the domicil of choice the burden of disproving it. Where a person lives is taken prima facie to be his domicil, until other facts establish the contrary.” The word “residence,” like “domicil,” is frequently used to express different meanings according to the subject-matter. For example, the term “residence” is construed to mean “domicil” in determining jurisdiction in divorce proceedings. (Atherton v. Atherton, 181 U. S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544; Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1; Thompson v. Thompson, 35 App. D. C. 14, 226 U. S. 531, 57 L. ed. 347, 33 Sup. Ct. Rep. 129; Shaw v. Shaw, 98 Mass. 158) ; or in ascertaining the voting residence of a citizen (Silvey v. Lindsey, 107 N. Y. 55, 13 N. E. 444; Crawford v. Wilson, 4 Barb. 505; Thomas v. Warner, 83 Md. 14, 34 Atl. 830; Fry’s Election Case, 71 Pa. 302, 10 Am. Rep. 698; Vanderpoel v. O’Hanlon, 53 Iowa, 246, 36 Am. Rep. 216, 5 N. W. 119; Blanchard v. Stearns, 5 Met. 298) ; or in probate and administration (Kennedy v. Ryall, 67 N. Y. 379; Isham v. Gibbons, 1 Bradf. 69) ; and generally in relation to taxation. Aside from the exceptions above cited, residence and domicil are not generally regarded as synonymous. In the case of Penfield v. Chesapeake, O. & S. W. R. Co. 134 U. S. 351, 33 L. ed. 940, 10 Sup. Ct. Rep. 566, the court construed a statute of New York Avhich provided that “Avhere a cause of action * * * accrues against a person who is not then a resident of the State, — 63 — an ad ion cannot bo brought thereon in a court of the State, against him or his personal representative, after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resident of the State, and in one of the following cases: * * * 2. Where, before the expiration of the time so limited, the person in whose favor it originally accrued was, or became, a resident of the State.” It was held that the statute contemplated that a person to come within its provisions should be an actual resident in the State. Pen field was originally a resident of New York State, but had been absent from the State for several years. At the time in question he was a resident of Missouri, but had sent his wife and family to Brooklyn, and established them in a house there. lie remained in St. Louis for business reasons, intending later to join his family in New York. Ilis right to bring the action depended upon whether the establishment of his family in New York made him a resident of that State within the statute. The court held, following a long line of decisions of the New York courts, that, though he had resided in New York prior to going to Missouri, he was not entitled to bring the action, in that he was not at the time an actual resident of New York. Distinguishing between domicil and residence, the court said: “Assuming, without deciding, that the testimony introduced for the plaintiff in the present case would -warrant the impression that he had obtained a domicil in the State of New York by virtue of his wife and family, with his consent, having made their home in that State, there is nothing in the evidence which had the slightest tendency to show that his own actual residence was in the State of New York for many years prior to his going there from St. Louis in December, 1883.” The opinion in this case is elaborate, and cites with approval many eases where the distinction between domicil and residence is made. We think that, by the great weight of authority, there is a well-defined distinction between residence and domicil. In the case of Long v. Ryan, 30 Gratt. 718, the court, considering this distinction, said: “There is, however, a wide distinction between domicil and residence, recognized by the most approved — 64 — authorities everywhere. Domicil is defined to be' a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. To constitute a domicil, two things must concur — first, residence, secondly, the intention to remain there. Pilson v. Bushong, 29 Gratt. 229; Mitchell v. United States, 21 Wall. 350, 22 L. ed. 584. Domicil, therefore, means more than residence. A man may be a resident of a particular locality without having his domicil there. Tie can have but one domicil at one and the same time, at least for the same purpose, although he may have several residences. According to the most approved writers and lexicographers, residence is defined to be the place of abode, a 'dwelling, a habitation, the act of abiding or dwelling in a place for some continuance of time. To reside in a place is to abide, to sojourn, to dwell there permanently or for a length of time. It is to have a permanent abode for the time being, as contradistinguished from a mere temporary locality of existence. Be Wrigley, 8 WTend. 134, 140; 1 Am. Lead. Cas. (Hare & W.) 899, 953.” [Residence, as distinguished from domicil, legal or constructive residence, implies a place of abode. [Residence “imports not only personal presence in a place, but an attachment to it by those acts or habits which express the closest connection between a person and a place, as by usually sitting or lying there.” Re Collins, 64 How. Pr. 63. It also “imports a personal presence; whereas one may have a domicil in a place from which he is absent most of the time.” The Chinese Tax Cases, 14 Fed. 338. “Literally, a resident is one who sits, abides, inhabits, or dwells in a certain place.” Collinson v. Teal, 4 Sawy. 241, Fed. Cas. No. 3,020. Or a resident is “one dwelling or having his abode in any place; an inhabitant, one that resides in a place.” Roosevelt v. Kellogg, 20 Johns. 208. The most that is claimed for respondent is that, more than three years prior to his appointment, he had established a domicil in Washington, to which he intended to return on completion of. his engagement in Chicago. On the evidence of his intention to return, the jury found against him; but, assum — 65 — ing that, he had such intention, it can avail him little in the light of the authorities cited. The residence he had established here he separated from the domicil, and carried with him to Chicago., No residence remained during his absence, for he left no place of abode in Washington. II is intention to return could be said, at most, to have held the domicil, and, perhaps, a legal residence, here, while he was in fact residing in Chicago. Before leaving Washington, his domicil and his residence had been the same, and therefore they may be said to have been synonymous terms. After leaving, his domicil and his residence w'ere not the same. The situation had changed. The terms could no. longer be said to be synonymous. II is domicil was in Washington;- his residence in Chicago. All that was necessary to transfer the domicil to Chicago would have been his intention to permanently remain there. That intention, in conjunction with the residence already established there, would have transferred the domicil to Chicago, and again the terms would have become synonymous; or the transfer of the residence back to Washington in November, 1912, or March, 1913, coupled with the intention to remain here, would have accomplished the same result. But it is apparent that, during the residence in Chicago, there was no residence in Washington in the sense of a real place of abode. We conclude, therefore, that a person may have a domicil in one place and live and abide in another, and while his domicil in that instance may be called his constructive or legal residence, it is not in fact his place of abode. Of course, residence, domicil, legal and constructive residence, may all be in the same place, — the real place of abode; and that, we think, is the sort of residence Congress had in mind when it embodied in the statute the requirement of actual residence as a qualification for appointment to the office of civil commissioner. The court- submitted to the jury by proper instructions the question of whether or not respondent, when he removed from Washington to Chicago, had an intention to return to Washington. In summing up on this branch of the case the court instructed the jury as follows: “If you find that he had the — 66 — intention to return, if he had established this bona fide residence here, and when he went away intended to return, then, so far as that point is concerned in reference to his absence, he would be entitled still to be considered a citizen of the District of Columbia, a resident of the District of Columbia.” The court then instructed the jury that they would also have to determine whether or not, during the period of respondents absence, he retained an actual residence in Washington, as required by the statute. This branch of the case was summed up in the following instruction: “If you find that Mr. Newman has not been an actual resident of the District of Columbia within the rules I have laid down to you, for three years next prior to his appointment, the form of your verdict should be that The defendant is guilty of the act of usurping the office of commissioner of the District of Columbia.’ If you find he has been such actual resident for the three years prior to his appointment, the form of your verdict should be that he £is not guilty of the act of usurping the office of commissioner of the District of Columbia.’ ” The jury found against respondent generally, or, at least, that he had not been an actual resident of the District of Columbia for three years prior to his appointment. Deducing the verdict to a finding on the question of actual residence alone, respondent’s intention to return becomes unimportant, except in so far as it affects actual residence. The general terms “residence” and “domicil” are of little importance here, since Congress has used the restricted term “actual resident.” While there are authorities holding that residence and domicil are regarded as synonymous terms, our attention has been directed to no case where the terms “actual residence” and “domicil,” when referring to different locations, .were held to be synonymous. The statute imposes two limitations upon the appointing power in the selection of civil commissioners: First, a person to possess the legal qualifications for appointment shall have been an actual resident of the Distract for three years preceding his appointment; and, second, he shall not have claimed residence elsewhere. The restricted term “"actual resident” is used to define his qualification, and — 67 — the general limitation, “shall havé, during that period, claimed residence nowhere else,” to define his disqualification. It follows that, though a person anay have been an actual resident of the District for three years preceding his appointment, but claimed residence or domicil or legal residence outside of the District, he falls within the disqualifying clause of the statute. The converse must also be true that, if he merely claimed a domicil or legal residence in the District during the required period, and during the period, or a portion thereof, maintained an actual residence or place of abode outside of the District, made necessary, as in this instance, by business engagements at such place of abode, he cannot measure up to the qualifications required by the statute. Assuming that respondent did not claim residence elsewhere, there still remains the statutory requirement that he shall have actually resided in the District of Columbia for three years prior to his appointment. The word “actual” is defined as “something real, in opposition to constructive or speculative, something existing in act.” 1 Bonder's Law Diet. p. 89. It is also defined as “real, present, visible, existent, existing in act.” 1 Corpus Juris, 1182, and cases cited. Applying these definitions to the term “actual resident,” used in the statute, it means that a person, to meet the requirement, must be a resident, residing in fact within the District, and not residing therein merely in contemplation of law. In Tipton v. Tipton, 81 Ky. 243, 8 S. W. 440, the statute under consideration provided: “The plaintiff, to obtain a divorce, must allege and prove, in addition to a legal cause of divorce (1), a residence in this State for one year next before the commencement of the action.” The court construed this statute to require an actual residence within the State, and, speaking of the difference between legal and actual residence, said: “As contradistinguished from his legal residence, he may have an actual residence in another state or country. He may abide in the latter without surrendering his legal residence in the former, provided he so intends. His legal residence, for the purposes above indicated, may be merely ideal, — 68 — but his actual residence must be substantive. He may not actually abide at his legal residence at all; but his actual residence must be his abiding place.” In Fitzgerald v. Arel, 63 Iowa, 104, 50 Am. Rep. 133, 16 N. W. 112, the court was considering the construction of a statute which provided that in certain cases justices of the peace should not have jurisdiction over actual residents of another county. Distinguishing between an actual and a legal resident, the court said: “Proceeding, then, with our inquiry, we have to say that it does not necessarily follow that the defendant was an actual resident of Des Moines county because his domicil was in that county. Residence and domicil are not necessarily the same. 2 Kent, Oom. 431, note; Love v. Cherry, 24 Iowa, 204; Cohen v. Daniels, 25 Iowa, 88. In the latter case, Beck, Justice, said: ‘The distinction between the import of the terms ‘residence’ and ‘domicil’ is obvious. The first is used to indicate the place of dwelling, whether permanent or temporary; the second, to denote a fixed, permanent residence to which, when absent, one has the intention of returning.’ The distinction here noted is the same as is sometimes made between actual residence and legal residence or inhabitancy. In Crawford v. Wilson, 4 Barb. 522, the court said: ‘The actual residence is not always the legal residence or inhabitancy of a man. A foreign minister actually resides, and is personally present, at the court to which he is accredited, but his legal residence or inhabitancy and domicil are in his own country.’ See also, in this connection, Shelton v. Tiffin, 6 How. 185, 12 L. ed. 397, and 2 Parsons, Oontr. 518. In our opinion, whenever a man buys or hires a house and sets up housekeeping with his family, with the design of remaining there until he has completed a certain job of work, he becomes an actual resident of that county within the meaning of the statute in question, and that, too, notwithstanding his domicil may be in another county, to which he intends to return upon the completion of the job.” In Lawson v. Adlard, 46 Minn. 243, 48 N. W. 1019, Adlard, residing and domiciled in Minnesota, moved with his family into South Dakota, where he had engaged to do certain govern — 69 — ment work, which required fourteen months for its performance. The family residence was left behind, with a portion of the household effects locked in it. A tenant occupied the first story of the house for six mouths. Adlard and members of his family returned occasionally for the night or for a short stay during the day. lie, however, had rented a house in which they lived in South Dakota. In sustaining a writ of attachment against Adlard, issued on the ground of nonresidence, the court held that, while his domicil and legal residence still remained in Minnesota, his actual residence was in South Dakota. “It was the abiding place, the home of the family.” In other words, it was his real abode, his residence in act and in fact, as distinguished from his constructive or legal residence or domicil in Minnesota. Actual residence, therefore, may be defined as a person’s present place of abode, where lie in fact and in act lives; his home, where he has a real, and not a constructive, existence. While each case must be decided largely upon its own merits, considering the statutory requirements and the facts attending the particular case, our attention has been called to no statute prescribing the qualifications of a person for appointment or election to an office where the restrictions are so great as here. It requires not merely a residence, which it might be contended means only a domicil, a legal or a constructive residence, but it requires actual residence. Every reason exists for this restrictive statute. As to most officers in the District, there is no such limitation placed upon the appointing power; they may be selected from the country at large; but the commissioners are the chief executive and administrative officers of the District, and they also legislate for the District in those matters specially delegated by Congress. It was therefore important to provide some limit!'. < ion upon the appointing power, which would insure the selection of men for this position who had resided in the District long enough to become acquainted with its needs and a flairs. To what does the contention of respondent logically lead ? If actual residence means mere domicil or legal residence established by sixteen months’ habitation in Washington, con70 tinned thereafter for a lapse of sixteen or twenty months by the mere intention of the party to return, the same mental concept might hold domicil or legal residence for three, ten, or thirty years; for time in retaining domicil, so long as the intention to return exists, is not material. This would defeat the evident intent of Congress. It would foist upon the people of the District a person totally unacquainted with its affairs. If the will of Congress is to be thus ignored, better appoint a person coming under the second limitation of the statute, who had actually resided here for three, ten, or thirty years, but who had claimed residence elsewhere. In the latter violation, the public good, at least, would be better subserved. Congress must be imputed with knowledge of the fact that Washington is at all times inhabited by a large population who maintain their legal residences or domicils in the States from which they respectively came. This is true largely of the vast army of Federal office holders. We think the intent of Congress, therefore, to be that a person appointed to the office of civil commissioner shall have, for three years, at least, prior to his appointment, lived and had his home within the District. Of course, this would not restrain him from leaving the District temporarily on business or pleasure; but he must have at all times a fixed abiding place to which he returns, and which is in fact his home. It will be observed that, in considering the law of the case, we have conceded to respondent all that the evidence, in its most favorable aspect, implies. The issues of fact, however, were submitted to the jury by ample instructions. It was left to the jury to determine from the evidence whether or not respondent, when he left Washington to go to Chicago, had a definite intention to return. In determining this fact, the jury had before it evidence from the lips of respondent that no place of abode was left behind;' what he did toward establishing a fixed place of abode in Chicago; the character of work in which lie was engaged; the fact that prior to coming to Washington in 1911 he had not remained in one place for any great length of time, and the circumstances attending his residence in Chi — 71 — cago. It was also left for the jury to determine from the evidence whether respondent retained such an actual residence in Washington during the entire three years prior to his appointment as would meet the requirements of the law as given it by the court. The verdict was against respondent. Hence, upon the issues of fact aud the reasonable inferences to be drawn therefrom, it is conclusive so far as this court is concerned. The judgment is affirmed, with costs.