Appeal, (85 Penn. State Rep., 4 Norris, 466,) in which the law of domicile was stated to be that in this country a person's domicile is that place in which he has fixed hist habitation, without any present intention of removing therefrom; that a mere intention to remove permanently without an actual removal works no change of domicile; nor does a mere removal from the state without an intention to reside elsewhere. This statement of the law aptly illustrates the principle that the act and intention must concur; and the case-decided in 1877-reaffirms all previous decisions on the subject of domicile and residence. The point was also distinctly and directly affirmed in Ballenger v. Lantier, 15 Kansas, 608, that to effect a change of residence, there must exist both the intention to change and the fact of removal. "Neither is sufficient alone."1 Persons in the Federal Service. The Supreme Court of California, was, in the cases of Devlin v. Anderson, 38 Cal. Rep., and The People v. Holden, 28 Cal. Rep., called upon to construe the provision of the constitution touching the status of persons in the service. of the United States. It was held, that while the mere fact of being stationed in the state for the prescribed time, does not, of itself, make a residence in the sense of the constitution, that it does not preclude one from acquiring a residence, if, independently of his service, he 1. 2 Swan, (Tenn.) Rep., 420; State v. Hallett, 8 Alabama, 159. tion as to the new place being coupled with a contingency which contemplates a possible return to the old, prevents its operating as an abandonment of the latter. In the case of The State ex. rel. Schuet v. Murray, 28 Wisconsin, 96, the question was considered whether the fact that a candidate is ineligible by reason of insufficient residence at the time he is voted for and elected, precludes his taking the office if, before the term commences, the ineligibility is removed. The court held not, saying that persons who have not resided in the state the necessary time when voted for, but who are qualified in all other respects, may hold the office, if, before the time for entering upon it arrives, they complete the necessary time of residence. "The disqualifications," said the court, "relate to the holding of the office, and not to the election thereto."1 One of the latest cases decided is that of Hindman's tory trip, preparatory to a removal if he liked the country. * * * The acquisition of a new domicile does not depend simply upon the residence of the party; the fact of residence must be accompanied by an intention of permanently residing in the new domicile and of abandoning the former; in other words, the change of domicile must be made manifest, animo et facto, by the fact of residence and the intention to abandon. De Bonneval v. De Bonneval, 6 Eng. E. Rep., 502; 1 Curties, 856; Craigie v. Lewin, 7 Eng. E. Rep., 460; 3 Curties, 435. Sir Herebord Jermer Trest in the latter case says the result of all the cases is that there must be the animus et factum, and that the principle is that a domicile, once acquired, remains until another is acquired, or the first abandoned; and that the length of residence is not important, provided the animus be there; if a person goes from one country to another with the intention of remaining that is sufficient, and whatever time he may have lived there is not enough unless there be an intention of remaining. 1. See Post. Appeal, (85 Penn. State Rep., 4 Norris, 466,) in which the law of domicile was stated to be that in this country a person's domicile is that place in which he has fixed his habitation, without any present intention of removing therefrom; that a mere intention to remove permanently without an actual removal works no change of domicile; nor does a mere removal from the state without an intention to reside elsewhere. This statement of the law aptly illustrates the principle that the act and intention must concur; and the case-decided in 1877-reaffirms all previous decisions on the subject of domicile and residence. The point was also distinctly and directly affirmed in Ballenger v. Lantier, 15 Kansas, 608, that to effect a change of residence, there must exist both the intention to change and the fact of removal. "Neither is sufficient alone."1 Persons in the Federal Service. The Supreme Court of California, was, in the cases of Devlin v. Anderson, 38 Cal. Rep., and The People v. Holden, 28 Cal. Rep., called upon to construe the provision of the constitution touching the status of persons in the service of the United States. It was held, that while the mere fact of being stationed in the state for the prescribed time, does not, of itself, make a residence in the sense of the constitution, that it does not preclude one from acquiring a residence, if, independently of his service, he 1. 2 Swan, (Tenn.) Rep., 420; State v. Hallett, 8 Alabama, 159. intends to make the state his residence. The same doctrine has been held in Oregon, in the cases of Darragh v. Bird, 3 Oregon, 229, and Wood v. Fitzgerald, 568. In this latter case the court said: "We cannot see the legal force or propriety of placing such a construction upon that section as would preclude an employee of the United States or state government, from making any change in his domicile that he may desire to make. Though such an one cannot gain or lose a residence by reason of his presence or absence when employed in the service, yet he can establish his domicile and gain a residence at such a point as he may see fit, by taking the proper and appropriate steps so to do independently of his employment." In Territory Ceded to the United States. In Ohio the curious and interesting question arose whether the inmates of an asylum established and incorporated by the United States, for disabled soldiers, and situated on territory ceded by the state to the United States, were residents and voters in the place where the asylum was situate. The act ceding the land to the United States provided a condition, that the civil and criminal process of the state should continue to be executed in the lands ceded, and in the buildings thereon, and that the inmates should continue to vote. It was held that the latter provision was unconstitutional, as the state constitution prescribes residence as a qualifica tion for suffrage, and that when citizens of the state became inmates of an asylum in territory outside the jurisdiction of the state, they were no longer residents of the state, and it was not, therefore, competent for the assembly to enact that they should continue to vote.1 "Within 1. Sink v. Reese, 19 Ohio State Rep., 306. The court say: the boundaries of one of the election precincts of Montgomery county is situated an institution known in law and in fact as 'The National Asylum for Disabled Volunteer Soldiers.' * * * Here then, is an institution invested with corporate powers, established by the government of the United States for its own purposes-the relief and support of its disabled volunteer soldiers. It is placed under the sole control and management of a board, constituted, appointed and to be appointed perpetually by the government of the United States. The act of the state legislature, consenting to the establishment of the asylum within her borders, * * fixes the exclusive jurisdiction of the general government over this institution, its lands and its inmates, 'in all cases whatsoever,' except as to the execution of process issuing under state authority. * * * * "This leads us to consider what is the legal status of persons who become residents upon the grounds and within the limits of the institution thus within the exclusive jurisdiction of the United States; and how does it affect their claim to exercise the elective franchise in Ohio, under its constitution and laws. * * * By becoming a resident inmate of the asylum, a person, though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to contribute to her revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdiction of another power, as foreign to Ohio as is the state of Indiana or Kentucky, or the District of Columbia. The constitution of Ohio requires that electors shall be residents of the state, etc. * * We are unanimously of the opinion that such is the law, and with it we have no quarrel, for there is something in itself unreasonable that men should be permitted to participate in the government of a community, and in the imposition of charges upon it, in whose interests they have no stake and from whose burdens and obligations they are exempt. * * * As for the concluding proviso of the first section of the Ohio act of cession, * it is not constitutionally competent for the general assembly to confer the elective franchise upon persons whose legal status is fixed as non-residents.of this state." |