Lancaster v. Herbert

McSherry, J., delivered the opinion of the Court. The name of Charles C. Lancaster, Esq., was stricken from the list of qualified voters of election district number five of Charles County in October, eighteen hundred and ninety. Mr. Lancaster thereupon appealed to the Circuit Court for that county, and the action of the officer of registration having been affirmed, the case has been brought into this Court for final review. On the fifth day of May, 1890, Mr. Lancaster made the affidavit required to be made, under sec. 14, ch. 573, Acts of 1890, by registered voters who had left the State prior to the passage of that Act. He attacks the constitutionality of the statute and claims that he is, in spite of its provisions, still entitled to vote in Charles County. In Southerland’s Appeal, ante p. 326, some of the objections relied on here were considered and passed upon, and need not again be discussed. In that case the voter failed to make the affidavit prescribed by sec. 14, ch. 573, Acts of 1890, and it was insisted that he was notwithstanding that failure entitled to vote; whilst here the appellant made the affidavit and therefore urges (aside from the constitutional questions raised,) that his name should not have been stricken from the lists. Whilst the statute has declared that the failure to make the affidavit shall be conclusive evidence of an intention to abandon his residence in the State, under the circumstances mentioned in the section, it has not said that the making of the affidavit shall be conclusive evidence of a contrary intention. In other words, the making of the affidavit operates to prevent the application of the presumption raised by the 14th section, though when made it does not have, of itself, the effect of establishing a. legal residence in Maryland, if the facts and circumstances surrounding and attending the removal and domicile abroad are sufficient to show that the affiant has, in fact, surrendered his residence in this State. [340] When the affidavit has been made the question of residence is still open for investigation; hut when it has not been made that question is conclusively settled. When open, its solution must depend upon other competent and admissible evidence. What, then, are the facts ? Mr. Lancaster was horn in Charles County, and resided there with his parents until he entered Georgetown College to complete his education. After graduating in 1814, he went to Washington City, studied law, entered the service of the General Government in the Treasury department and in the department of Justice, subsequently resigned and has been practising law ever since in Washington, where he has resided continuously with his wife and children in a rented house up to the time of the hearing in the Court below. He is a part owner and manager of an estate in Charles County. He occasionally went to the county on business connected with the management of that estate. For sixteen years he has not resided in Charles County. During that entire period of time his actual domicile has been in the District of Columbia. His and his family’s home has been there, and there he has practised his profession. He identified himself and his interest, for the time being at least, with his new place of abode. All this he did voluntarily and from choice. He selected a place outside of 'the limits of the State for his home, and for the pursuit of his private business. If, under these circumstances, he is still a legal resident of Charles County, it can only he because he has now, and has always had since he left it sixteen years ago, an intention to return and take up his abode there at some future time. If this intention was and is merely a floating one, he is at once confronted with this difficulty, that his abode in Washington having become a place of fixed present domicile not in any way the result of a temporary absence for a particular purpose, it is sufficient to [341] establish a residence there; and although there may be, and may always have been, a floating intention to return to Charles County at some future period, still that circumstance will not defeat the newly acquired residence or the rights and obligations which attach to it. Ringgold vs. Barley, 5 Md., 193; Story’s Conf. Laws, sec. 46; Shaeffer vs. Gilbert, 13 Md., 66. If, on the other hand, the intention was a fixed one to return at a definite time, the statute prescribes (in cases to which it is applicable) that an actual return to the State, in addition to making the affidavit, shall be the evidence of the existence of such an intention; and Mr. Lancaster did not return to and resume hfs residence in Maryland. Under the statute no mere intention, however strong — and at best, when not made manifest by exterior acts which alone give it palpable form, it is but a revocable mental purpose — can, of itself without more, make a non-resident a resident of a locality different from that which is his actual, fixed, present domicile.' He must do the things which the statute requires to be done — he must make the affidavit, and he must actually return to Maryland. There is nothing whatever in the record, apart from the appellant’s own declarations with respect to his intentions, to show that he claims a legal residence in Charles County; and these declarations are not sufficient or competent, under the statute, 'to override the presumption that his actual domicile and his legal residence are in one and.the same place — the District of Columbia. The fact that he owns an interest in an estate situated in Charles County, does not make him a resident of that county, nor does it tend to show that he has an intention, floating or fixed, to return there. His management of that property gives him no right to vote in this State when his domicile, dwelling-place, abode or habitation is beyond the limits of Maryland. The bill of exceptions in the record was not sealed by the Judge who signed it, and therefore the questions [342] intended to be raised are not, in fact, before us; but we-have thought it better to decide the case upon its merits, though the appeal will have to be dismissed because of the omission of the seal. (Decided 16th June, 1891.) Appeal dismissed.