Thomas v. Warner , 83 Md. 14 ( 1896 )

Bryan, J,,

delivered the opinion of the Court.

It was decided after proper proceedings, in the Circuit Court for Montgomery Connty, that Brainard H. Warner should be registered as a voter. If he had been a resident of the State of Maryland for a year, and of Montgomery County for six months next preceding the ensuing election, he was entitled to be registered, but not otherwise.

We will examine the evidence offered to prove residence. It was shown that from the year eighteen hundred and eighty-five to eighteen hundred and ninety-two, he resided continuously at No. 2100 Massachusetts avenue, Washington, D. C. ; that in the spring of eighteen hundred and ninety-two he purchased land in Montgomery County, and built a dwelling-house thereon ; that about July of that year .he, with his family, moved to this house from his house in Washington and remained there until November, when he returned with his family to Washington; that he left two minor sons in his house m Montgomery, with a family to care for them, and that they remained there until the next .spring; that he and his family, with the exception of his two sons, occupied his Washington house continuously until May or June, eighteen hundred and ninety-three, when he removed to the Montgomery house, which he continued to occupy until October or November of that year; he then returned with his family to his Washington house, where he continued to live until about May, eighteen hundred and ninety-four, when he closed his house in Washington and returned with his family to the Montgomery house, and continued to live there with his family until about the sixteenth day of November of the same year ; he then closed his house in Montgomery and' returned to his Washington house, where he continued to live with his family until about the twenty-ninth day of May, eighteen hundred and ninety-five, when he closed his house in Washington and returned to his house in Montgomery, where he and his family continued to lived until the day this testimony was taken, which was on the first day of November of the same year ; that in February, eighteen hundred and ninety-five, he rented his Montgomery house to a friend of his, a Mr. Upshur, who continued to occupy it, as a tenant, until the twenty-fifth of May of the same year; that on the second day of May he spent the night in the house as a guest of Mr. Upshur, to comply with the provisions of the registration law; and that he paid taxes in the District of Columbia on his bonds and personal securities. Warner, on the sixteenth of November, eighteen hundred and ninety-four, made before the Clerk of the Circuit Court for Montgomery County, the affidavit required by the Act of 1890.

Warner was undoubtedly a resident of Washington from eighteen hundred and eighty-five to eighteen hundred and ninety-two. It was in his power to remove his residence to Maryland if he thought proper to do so. It was a very easy thing to do. If he had broken up his establishment in Washington, abandoned his residence there and made his home in Montgomery, there could have been no question about the matter. But sometimes the change of residence cannot be proved by clear and unambiguous evidence. It must, however, always appear that the former residence has been abandoned. There must be an actual acquisition of a new abode ; and in the case of a married man the settlement of the family there with all the incidents and associations belonging to a home according to their circumstances. The idea of residence is compounded of fact and intention ; to effect a change of it there must be an actual removal to another habitation, and there must be an intention of remaining there. It is not required that the purpose to remain shall be unalterable; for a person may change his residence whenever his wishes or his interests may induce him to do so. But there must be an adoption of the new abode as a place of fixed present domicile ; it would ordinarily be the “ centre of his affairs,” and the place where the business of his life was transacted. Of course, no one thinks that a man is obliged to remain at home as if he were a prisoner. His business might require him to be absent on frequent occasions for longer or shorter periods. But his home is the place where he and his family habitually dwell; which they leave for temporary purposes, and to which they return when the occasion for absence no longer exist. It is not inconsistent with the maintenance of residence that the whole family should make visits to other places extending through great lengths of time, provided there is a definite and settled purpose, continuous and unchanged, to return. One of the marked evidences of residence is that the person claiming it identifies himself and all his interests with his new place of .abode, and exercises the rights and performs the duties of a citizen.

We have seen that Mr. Warner’s election to change his residence would not be sufficient without making the new habitation a place of fixed present domicile. Now, we see in the evidence no change in the course of his life in Washington after he purchased the land and built the house in Montgomery. He continued to live at his former dwelling, and as far as we can see from the evidence under the same conditions and circumstances. He paid taxes on his personal property in the same way as formerly, as only a resident is required to do ; and there is no external mark or indication which would designate him as a transient dweller or sojourner. Although he and his family paid visits to his country house, we have seen that such visits were by no means inconsistent with a residence in Washington. They were no longer in duration than those which are frequently made by families who wish to escape from the discomforts of the summer and early fall in large cities; while if the fixedness of domicile is to be measured by the length of time the occupation continued, it was shorter during the three years of alleged residence in Montgomery than the time spent in the Washington house. If the four months, five or six months, and six months spent in Montgomery, during the years ninety-two, ninety-three and ninety-four, respectively, tend to show permanency of residence there ; the eight months, five or six months, and six months spent in the Washington house during the same years, respectively, countervail and overthrow this inference, and establish with greater reason the continuance of the Washington residence. Judge Story tells us that: “ In a strict and legal sense that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertcndi).” We find it impossible to infer that these conditions are fulfilled in the case of the Montgomery house.

(Decided March 24th, 1896).

As Mr. Warner never acquired a residence in Montgomery Count}-, the affidavit which he made before the Clerk of the Circuit Court is of no avail.

The decision of the Court below must be reversed.

Reversed and remanded.