CHAPTER IV.

SUFFRAGE RESIDENCE.

Residence for a certain specified time being, in every state, a qualification for suffrage, the inquiry what the term residence, as thus used, means, becomes important.

The decisions of the courts are to the effect that, while the term residence, in its general sense, is not necessarily synonymous with domicile, the latter always embracing within its meaning the intention of making the place the home of the party,1 the suffrage residence spoken of in the state constitutions is legal residence, which means the same as domicile.2 Two things must concur to constitute domicile: first, residence; and second, the intention to make it the home of the party. On the other hand, it is not necessary that all the facts which may attend the actual residence of a person should exist in the same case in order to ascertain and fix his legal residence.4

In a late case, King v. Foxwell, (English Law Rep.

1. Foster v. Hall, 4 Humphrey (Tennessee) Rep., 346.

2. Brightly's Leading Election Cases, 107, and note page 112; Ibid, page 468.

3. Story's Conflict of Laws, section 44.

4. Stratton v.

Brigham, 2 Sneed's (Tennessee) Rep., 420.

Ch. Div. 1, vol. III, page 518,) Sir George Jessel, Master of the Rolls, says: "Residence is not eating, drinking and sleeping at a particular house; all these things may be done and done for years while a person is traveling. On the other hand, a person may have a residence and yet not visit it for a great many years; that may be his only residence, he may have no other home."

In considering this subject, the courts have, in drawing the line between a mere residence of fact-defined by Chancellor Walworth as "a mere temporary locality of existence "1-and a legal residence, and holding that the latter is the kind of residence required by the state constitutions as a qualification for suffrage, prescribed the same rules and tests as applicable in ascertaining whether it has been acquired, as are applied in determining whether a place is a man's domicile. Legal residence and domicile are, in this connection, except as to the element of time, convertible terms.2

There is a domicile of origin and a domicile of choice. "It is a settled principle of law that no man shall be without a domicile, and to secure this end the law attributes to every man, as soon as he is born, the domicile of his father, if legitimate, and of his mother if illegitimate."

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Domicile of choice is the creation of the party, and is

1. Matter of Wrigley, 8 Wendell, N. Y. Rep., 140.

2. Crawford v. Wilson, 4 Barb., 504; Thorndike v. Boston, 1 Met., page 245.

3. Brightly's Election Cases, note, page 479; 2 Daly, N. Y., page 528.

a conclusion of law from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.1 The domicile of origin is not lost until a new one is gained, by the abandonment of the one with the intention of acquiring the other,2 but this doctrine does not apply to a domicile of choice, which may be lost by intentional abandonment without a new one being gained, in such case the domicile of origin being restored until a new one is acquired.

Thus it was decided in Udny v. Udny, that if a person abandon his domicile of choice, and travel in search of another domicile of choice, his former domicile of choice does not "remain until a new one is acquired," but the domicile of origin comes instantly into action and continues until a second domicile of choice is acquired. In King v. Foxwell, the question was, whether Charles King, the testator, a native of England, had ever changed his domicile of origin for one of choice, and then regained the former. It was in evidence that he came to this country, was naturalized, remained here fifteen years, sold out and returned to England. Sir George Jessel,

1. Brightly's Election Cases, page 279, note. Quoting Case v. Clark, 5 Mason, U. S. page 70. Holdman v. Eckford L. R. 8 Eq. 631.

2. See cases cited hereafter. Also Venable v. Paulding, 19 Minnesota, 488; State v. Frost, 4 Delaware Rep., 558; 2 Sneed, (Tenn.) 420; 4 Humphrey, (Tenn.) 346; Hairsville v. Hairston, 5 Mississippi, (Cushman,) 704; Griffin v. Wall, 32 Alaba., 149; Beardstown v. Virginia, 81 Ill, 541; Boyd v. Beck, 29 Ala., 703; State v. Judge, etc., 13 Ala., 805; Somerville v. Somerville, 5 Ves., 750, 780; Harvard College v. Gore, 5 Pick, (Mass.) 370; Bell v. K, Law Rep. 1868, 1 H. L., Sec. 317.

master of the rolls, said: "I have no doubt the testator acquired an American domicile; that is quite independent of the question whether he ever lost it. What is domicile? I have had before me a great number of authorities, and the conclusion I draw is this, that in order that a man may change his domicile of origin he must choose a new domicile-the word "choose" indicates that the act is voluntary on his part, he must choose a new domicile by fixing his sole or principal residence in a new country, (that is in a country which is not his country of origin,) with the intention of residing there for a period not limited as to time." It was held that by his return to England after abandoning this country, his domicile in the former was regained.1

The act of removal must accompany and concur with

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Again,

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I am of opin* The

1. Udny v. Udny, Law Report 1869, 1 H. L., Sec. 41. King v. Foxwell, Eng. Law Rep., Chan. Div. I, vol. III, page 518. You must show permanent residence in a new country. Neither of these is a simple fact, for I take it that all these questions of status involve a good deal more than can be seen by the eye what is the meaning of permanent residence? That is a question which cannot be decided by mere length of time, the answer to it must involve the consideration of the intention of the person. ion that he (King) has acquired an American domicile. question I have now to decide is, whether the testator, having acquired an American domicile, abandoned it. Now a man having acquired a domicile of choice may abandon it, without it being incumbent on him to acquire a new domicile of choice; that is to say, he may abandon his domicile of choice without acquiring in strictness any new domicile, because his domicile of origin reverts. I think it is established that he (King) * * * He sold off his property in

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abandoned his new domicile.

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America, he left the country, and his letters show he had no intention of

returning.

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the intention,1 and, as a mere contingent intention of removal will not change the domicile, so, if there be a perfect intention to change, accompanied by an actual removal, a mere floating intention to return at some future time will not avail.3

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To acquire a new domicile there must be the animus manendi, and there must be coupled with this intention of remaining permanently the fact of residence. Absence from one's domicile for a temporary purpose, with an animus revertendi, will not change a domicile."

While these rules are applied in determining the acquisition of both domicile and legal residence, it is, nevertheless, to be observed that, in regard to residence as a qualification for suffrage, time always enters as a material consideration. In this respect suffrage residence and domicile differ. The time in which a domicile may be acquired may be shorter or longer. There is authority for the broad statement that in no case is there recognized a definite period of time as necessary to create a domicile.

1. 2 Swann's (Tennessee) Rep., 232; State v. Hallett, 8 Ala., 139; Hardy v. Deleon, 5 Texas, 235.

2. 2 Sneed (Tenn.), 420.

3. Idem.

4. Case v. Clark, 5 Mason U. S. C., 70; Costen v. Mitchell, 4 Washington U. S. C., 191; Story's Con. Law, ? 44.

5. Leach v. Pillsbury, 15 N. H., 137; 44 Id., 383; Boardsman v. House, 18 Wendell, 512; Id., 644; Henrietta v. Ox, 2 Ohio St., 32; Hegeman v. Fox, 31 Barb. N. Y., 475; McIntyre, &c., 4 Texas, 187; Frost v. Brisbin, 19 Wendell, 11.

6. Riswick v. Davis, 19 Maryland, 82.