People v. Platt , 57 N.Y. Sup. Ct. 454 ( 1888 )

Learned, P. J.

The statute required the appointment of three persons, citizens of the state, who should be residents of the metropolitan police district; and, as often as vacancies should occur by reason of removal from the said district, (or other causes,) the appointment of others to fill the places, who should reside in said district. This provision is but an application of the general policy of the state. The constitution, art. 6, § 6, requires justices of the supreme court to reside in their respective districts. 1 Rev. St. marg. pp. 101, 102, §§ 10-15, and marg. p. 345, § 11, require county judges, sheriffs, and many other officers, to reside in the respective counties, cities, and towns in which the duties of their offices are to be performed. Furthermore, by 1 Rev. St. p. 122, § 34, every office becomes vacant on the incumbent’s ceasing to be an inhabitant of the state, or, if the office be local, of the district, county, town, or city, for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged.

Here we have the word “inhabitant” used as synonymous with “resident;” the former sections requiring the officer to be a “resident,” and this section speaking of his ceasing to be an “inhabitant.” It is unquestionable that the two words, in this place, are used with the same meaning; and we may notice that in the recent case of Borland v. Boston, 132 Mass. 89, the supreme court of that state very carefully considered the meaning of the word “inhabitant” in a statute, and decided that it meant “being domiciled in.” In this decision, that court, to some extent, overruled 'some previous decisions; and they further held that the word “inhabitant,” for the purpose of taxation, must be used in the same sense as when used in reference to electing and being elected to office. Thus it was fully decided that the word “inhabitant,” when used in reference to being elected to office, means having his home in, or being domiciled in, the place mentioned. Our constitution and statutes use the words “reside” and “resident” (and in the instance cited, the word “inhabitant”) to express one of the qualifications for eligibility to office, or the obligation which many civil officers are under in respect to the place where their duties are to be discharged. The constitution uses the same word in expressing the qualifications of voters, (article 2, § 1,) requiring the voter for a certain time to be a resident of the county and of the election district; and to prevent any doubt, in certain cases, it provides that, in those cases, a person shall not be deemed to have gained or lost a residence by “presence or absence.” The inquiry, then, must be, what is the meaning of the words “reside” and “residence,” when used to express the obligation aforesaid in respect to the place where official duties are to be discharged? This is a different question from that which arises in proceedings by attachment and the like against non-resident debtors. The ground and reason for those statutes are found in the inability to serve the debtor personally in the state. Therefore it was said, in one case: “Whether their absence from the state is permanent or temporary, whether it is voluntary or involuntary, the reason for giving this remedy to the creditor is the same.” In re Thompson, 1 Wend 45. See, also, the cases of In re Wrigley, 4 Wend. 602, 8 Wend. 140, and Frost v. Brisbin, 19 Wend. 11. These cases were examined by Surrogate Bradford in Isham v. Gibbons, 1 Bradf. (Sur.) 69; and he remarked that they lean to a liberal construction of the law in favor of the creditor. They do not aid us in giving a construction to the statute now in question. “The cases upon this branch of the law are in a most distressing state of confusion and conflict.” Jac. Horn. § 49. The object of ■this provision which we are considering in this present case, and in similar ‘statutes, is twofold: First, to secure the actual presence of the officer in the ■place within which his duties are to be discharged; and, secondly, to give to ■each town, city, or county, officers selected from its own inhabitants,—from those who there have municipal rights and duties, and are there subject to particular burdens. It is a part of the principle of local, self-government. It is intended to prevent a person, whose home and place of voting is in one town, city, or county, from being made an officer of another-. It does not prevent such an officer from being absent for a time. He might even have (as so many have) a summer residence; yet he would not thereby be held to have ceased to be an inhabitant of the place in which his duties are to be discharged. And, on the other hand, the mere presence (to use the constitutional word) of such an officer in that place, while his home and place of voting were elsewhere, would not make him a resident, in the meaning of these statutes. If, for instance, a person chosen county judge of county A. had his home and place of voting in county B., it would seem clear that he could not hold the office, although he were actually to spend the whole of his time in county A.

One difficulty in this subject is what Surrogate Bradford calls “the large capacity of the words under-discussion,” (Isham v. Gibbons, supra;) that is, the different and varying meanings with which the word “residence” is used; and there is the further difficulty of defining the word “residence,” when used to describe a man’s absolute, unqualified home. It is owing to the different meanings in which the word “residence” is used that, while some cases may be found in which residence and domicile are said to be synonymous, others may be found where they are contrasted; and such latter are cited by the appellant. Thus the appellant cites the language of Lord Westbury in one of the opinions in Bell v. Kennedy, L. R. 1 H. L. Sc. 320, where he says that residence and domicile are two perfectly distinct things. His meaning is explained further on, where he says: “For, though residence may be some small prima facie proof of domicile, it is by no means to be inferred from the fact of residence that domicile results.” It will be seen, then, that Lord Westbury only says that one may in fact reside for a time in a place other than his domicile. Ho question was before the court as to the meaning of the word “residence” in a statute. Bell, the deceased, was born in Jamaica, settled and married there, and all his property was there. Finally he determined to leave the island, and he did.so, and bought property in Scotland, ¡but he never determined upon any place as a permanent home. The question was whether Scotch law or English (Jamaica) applied as to a certain part of his estate; and it was held that he had not lost his domicile in Jamaica by his residence elsewhere. That one may actually reside for a time in a place other than his legal residence—his voting residence—is undisputed. But nothing in that case throws any light on the meaning of the word “resident” used in a statute. The case of Haggart v. Morgan, 5 N. Y. 428, was one of an attachment against a non-resident debtor,—a class of cases already discussed. Dupuy v. Wurtz, 53 N. Y. 556, was a case as to the validity of the will of personal property; and the question was whether the testatrix, by a residence abroad, had changed her domicile, which had been in Hew. York. And the court held that there was no evidence that she had intended t j adopt any place as a permanent home or domicile. In the opinion the c jurt say that a change of residence, without an intention to change the domicile, does not effect a change of domicile. This case, also, like one abovf examined, contains no discussion as to the meaning of the words “residence” and “re' side” in a statute. It only uses the words to describe the fact?. The case oi Queen v. Vice-Chancellor, L. R. 7 Q. B. 471, was on the construction of a statute which required that the members of the congregation must be “residents,” and which declared that the word “residents” me^nt those who had resided for 21 weeks within a mile and a half of Carfax. The relator resided in a parsonage house nine miles distant, but he had a bedroom and sittings room within a mile and a half of Carfax, and during the year he had repeatedly slept in the bedroom. The court held that the act required an actual, and not a constructive, residence. "Nothing was said about domicile. The case clearly has no application to the present. In Hotel Co. v. Hersee, 79 N. Y. 454, the defendant had subscribed a sum of money on condition that •a certain amount should be subscribed by “citizens of Buffalo.” The question was whether one of the subscribers was such citizen. The court, in eon■sideration of the objects of the paper, said that it was “immaterial whether the subscriber occupied with his family a house within the limits of the city, •or outside of them, as long as his place of business was in Buffalo,” etc. This decision plainly gives no light on the construction of the statute in question. •

We have already stated what we think to have been the meaning of the words “resident” and “inhabitant” in the statutes above cited. The learned judge on the trial said that “ residence” and “domicile” are in the construction -of this statute identical and synonymous terms; and thus the question on this appeal, as to the meaning of the word “resident,” becomes a question whether it is synonymous with the word “domicile” in this statute. The word “domicile” appears not to be used in our statutes, though frequently used in legal discussion and opinions. Without giving any definition of the word, it is more important to inquire whether it is synonymous with “residence” in ■such a statute as the present. Mr. Jacobs says: “ ‘ Residence,’ when used in statutes, is generally construed to mean ‘ domicile.’ This is especially true with regard to the subjects of voting, eligibility to office, taxation, jurisdiction in divorce, probate, and administration, etc. With respect to these subjects there is substantial unanimity in this country in holding statutory residence to mean domicile.” Jac. Dom. § 75. “It is necessary that a person who is subject to the laws of a state should have some certain, fixed place where he may be called upon to perform the duties and obligations which he owes to the state, and where, too, he may enjoy the privileges which the state accords to him.” Id. §86. “A change of municipal domicile is a question of act and intention. On the one hand, mere absence from the former place of abode does not destroy domicile there, nor does presence at a place for a temporary purpose fix domicile there.” Id. § 182. Decisions are in harmony with these views. In Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. Rep. 444, •the question was as to the plaintiff’s right to vote at a particular place. The ■court say the question is “one of domicile or residence,” using the words as synonymous, and showing that the word “residence” in the constitution means “domicile.” In Crawford v. Wilson, 4 Barb. 505, the court say: “The •terms ‘ legal residence ’ or ‘ inhabitancy ’ and 1 domicile ’ mean the same thing. By legal residence I mean the place of a man’s fixed habitation,—where his political rights, such as the elective franchise, are to be exercised. ” In People v. Surrogate's Court, 36 Hun, 220, the court say: '“‘Residence’ has much the same meaning as ‘domicile.’” In Kennedy v. Ryall, 67 N. Y. 386, the question was raised as to the right of the surrogate of Hew York to grant letters of administration,—that is, whether the deceased was a resident of the county; and the court remark that, “generally speaking, ‘ domicile ’ and ‘ residence’ moan the same thing;” and the opinion continually uses the words as synonymous. In Isham v. Gibbons, supra, in a matter of probate of a will, it was said that “residing out of the state” meant having a domicile out of the state; and the learned surrogate examines many cases with great acuteness. Borland v. Boston, supra, contains a very exhaustive examination •of the Massachusetts cases, and concludes that, so far as relates to municipal right, privileges, powers, or duties, the word “inhabitant” signifies precisely the same as one domiciled. In Roberts v. Cannon, 4 Dev. & B. 256, the question was as to the construction of the constitution, which authorized persons-to vote who had been inhabitants of the county for 12 months. The court said: “By residence in the county the constitution intends a domicile in that county.” See, also, Hannon v. Grizzard, 89 N. C. 115. In Vanderpoel v. O’Hanlon, 53 Iowa, 246, 5 N. W. Rep. 119, the question was on the construction of the constitution, which required a voter to have been a resident of the-county 60 days. The court said: “He is entitled to vote only in the county where his home is,—where his fixed place of residence is for the time being,. —and such place is, and must be, his domicile. ” A similar meaning is given* to the word “residence,” on the question of a right to vote, in Blanchard v. Stearns, 5 Metc. 298, and Opinion of Judges, Id. 587. The same construction# was given, on the question of a person’s settlement, in Abington v. North Bridgewater, 23 Pick. 170, and in Shaw v. Shaw, 98 Mass. 158, on the question of jurisdiction in case of divorce. A similar question arose in Chase v. Miller, 41 Pa. St. 403. And the court said: “Undoubtedly the primary signification of the word ‘residence,’ as used in the constitution, is the same as-‘domicile.’” Again, in Fry's Flection Case, 71 Pa. St. 302, on a similar question as to the meaning of the word “resident” in the constitution, the court gave a very elaborate opinion; spoke of residence as denoting domicile;, and said: “The elector must therefore vote at home, not only in the state, but in the elective district where his home is. His domicile must be there.” To-the same effect is Dauphin Co. v. Banks, 1 Pears. 40.

It seems hardly necessary to add to these authorities. Ho case has been, cited where the question aí^ to the meaning of the word “residence” in a constitution or a statute has arisen, and where the subject was the right to vote,, or the right to hold office, or the right of probate and succession to personal-property, in which the word “residence” has not been held, without doubt, to-be equivalent to “ domicile. ” And indeed, if this meaning of “ domicile” is not to-be given to the word “residence” in statutes upon those subjects, what meaning can be given? Shall residence which is to give the right to vote include-a merely temporary stay, when a domicile remains elsewhere? And, if it. does not include a temporary stay, how long a time must elapse (the domicile-remaining elsewhere) in order to give one a right to vote? Oases are to be found where the actual residence (to use that expression) has continued for years, and yet the domicile has not been changed. Jac. Dom. § 393 et seq. Hence we cannot depend on the length of time alone, the intention being wanting; and, if we cannot depend on the length of time, then on the right to vote, and on similar rights, a short stay (provided it is over four months in the county) would be as effectual as a long stay. There is no other alternative, therefore, in construing the word “residence” in such statutes. It must either mean “domicile,” or it must include any living or staying in a* place, however temporary in character, which is long enough to satisfy the statute. The statute, for instance, gives jurisdiction to the surrogate’s court, of the county of which deceased was a resident. Code, § 2476. If “residence” dues not mean “domicile,” then,if one domiciled in Hew York should diewhile in his summer residence in some other county, jurisdiction would belong to the latter county.

It is true that decisions on the subject have been more generally on the-right to vote than on the right to hold office. It is seldom that one, not domiciled in a place, has assumed to hold a local office therein; but, certainly the word “residence” must mean the same thing in both cases. It would be-absurd to say that more permanency was required in the voter than in the-local officer voted for. If by statute one must be a resident of a town in order to vote, and by statute also one must be a resident of the town to hold office therein, then, if “residence” in the voter’s case means “domicile,” so it means-also in the case of the officer. The two subjects are cognate, and the word “residence” is used with like meaning in respect to each. There is a provision in our statutes relative to taxation that, “in case any person possessed of such personal property shall reside during any year in two or more counties, •towns, or wards, his residence for the purpose, within the meaning of this section, shall be deemed and held to be in the county, town, or ward in which his principal business shall have been transacted.” 1 Rev. St. p. 389, §§ 1-5. This is a mere provision as to taxation, expressly limited to that subject. It is not an attempt to define the meaning of “statutory residence.” Its object is manifest. It was to prevent a man who had a house in the country and a house in the city, and whose business was in the city, from choosing to make his country house the place of domicile, so far as taxation was concerned. "The man might be a legal resident in the country, and might be domiciled -there; but if he lived for a part of the year in the city, and did business there, he was by this statute to be taxed in the city, though domiciled elsewhere. In the views above given, we think that no error was committed in charging that “residence” was equivalent to “domicile” in this statute.

The defendant asked the court to direct a verdict in his favor. That presents the question whether, on the evidence, it could be said that the defendant had his residence and domicile in Hew Y ork as a matter of law. There is no doubt that defendant’s long-continued living in Hew York would be strong ■evidence that that place had become his domicile. But there are other facts. Defendant was born in Owego, and resided there till 1878. Since that time he has never kept house. He has voted at Owego during all this time, whenever he has voted at all, at local, state, and national elections. In 1880 his vote was challenged there, and he took the necessary oath. He states now, under -oath, that he never intended to abandon his legal domicile in Owego. There .are also other facts to which we need not refer. Of course, the defendant was originally domiciled in Owego. It has often been said that to change •one’s domicile was a matter of intention and of act. Mere residence in another place, without the intention to change the domicile, is not enough. Jac. Dorn. §§ 181, 182, 185. In Shelton v. Tiffin, 6 How. 163, on the question of change of domicile from one state to another, it was said: “An exercise of the right of suffrage is conclusive on the subject;” that is, on the intention. To the same effect is Kellogg v. Oshkook, 14 Wis. 623. The act of voting is at least evidence that the voter believes and claims himself to be resident and domiciled where he votes. Jac. Dom. § 435. In the present ■case there is the further fact that the defendant, in 1880, took the necessary -oath at Owego, when challenged. By this he staled that he had been then a resident of the county for four months, and of that election district for thirty ■days. Certainly, for the purpose of voting, a man cannot have two residences; •and we have already seen that residence for voting and residence for eligibility to local office are, and in the nature of the case must be, the same. Hence it ■could not be held on the facts, as matter of law, that the defendant’s residence, ■either for voting or for local office, was in Hew York city. Whether, as a matter of law, it was not in Owego, we need not say.

An exception is made on defendant’s points to the admission of a juror, on the ground that he was not “well informed.” It seems to us that on that matter we could not safely overrule the trial court. It is a question of fact as to which the appearance as well as the answer of the juror must be considered. In regard to the peremptory challenge to the juror Carroll, so far as we can understand the practice which was followed by the court in regard to the peremptory challenges, there was no error. People v. Carpenter, 102 N. Y. 239, 247, 6 N. E. Rep. 584. The defendant’s counsel seem to have intentionally refrained from making the challenge when opportunity was plainly given, in order to make it afterwards, that they might except to the judge’s refusal. We ought to be slow to find error, where a party has deliberately neglected-to challenge, when he might have done so, with the purpese of getting what he •deemed to be an erroneous ruling, a few moments after.

Tbe defendant claims that he should have been allowed to open and close.. The complaint did not follow the old form, which only alleged that defendant usurped and unlawfully exercised a certain office, and called on him to show his authority. But it set up the defendant’s alleged authority, viz., the appointment by the governor, and then set up the alleged defect, viz., defendant’s residence in Owego, and not in Hew York city. The answer set up no-other title to the office than that alleged in the complaint. Ho motion had been made (so far as appears) to correct or to strike out anything from the-pleadings. But on these pleadings' the parties went to trial. The plaintiff then had affirmatively set up and admitted the authority under which the defendant claimed, and it was not necessary for defendant to prove it1. The plaintiff averred that defendant was not competent, and that was a fact for the plaintiff to prove. What is called the second cause of action was waived by plaintiff. This view of the pleading is the same taken by the special term on the demurrer. Ho question was under discussion then as to which party had the affirmative of the issue, as the issue had been made. The defendant on the-trial had nothing to prove in the first instance, because his appointment was admitted. His incompetency to hold the office was for plaintiff to establish.

In the points for the plaintiff on this appeal there is a discussion in regard to the challenge to the array, and in respect to the time of drawing jurors, etc. We find nothing on this subject in the points for the defendant. On examining the facts of this case in the light of Friery v. People, 2 Abb. Dec. 216;. Ferris v. People, 48 Barb. 17, 35 N. Y. 125, etc.,—we think there is no ground " to reverse the j udgment for any error in the overruling of this challenge. Tliejudgment appealed from should be affirmed, with costs.