3 Mass. App. Ct. 206 | Mass. App. Ct. | 1975
A patient at Worcester State Hospital filed a petition for declaratory relief in the Superior Court, pursuant to G. L. c. 231A, seeking to establish that he was a resident of Worcester under G. L. c. 51, § 1, as amended through St. 1972, c. 587, § 1, and that the refusal of the board of registrars of voters of Worcester to register him as a voter violated the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States; the Voting Rights Act of 1965, 42 U. S. C. § 1971 (a) (2) (A) (1970); and arts. 1 and 9 of the Declaration of Rights of the Constitution of the Commonwealth. The trial judge concluded that the plaintiff should have sought relief under the Administrative Procedure Act, G. L. c. 30A, or through a petition for a writ of certiorari and that a proceeding under G. L. c. 231A was not the proper remedy. He further concluded that, upon the evidence presented by the plaintiff, the board acted properly in finding that the plaintiff was not a resident of Worcester and in denying him registration. The plaintiff appeals from a final decree dismissing his bill. The judge adopted as a report of material facts his findings of fact contained in his earlier findings, rulings and order for a decree. The evidence is also reported. We may review all questions of law, fact and discretion and make findings in addition to those made by the judge but his findings of fact will not be disturbed unless plainly wrong. Angers v. Adams, 337 Mass. 325, 326 (1958). All Stainless, Inc. v. Colby, 364 Mass. 773, 776 (1974).
It was proper for the plaintiff to have sought relief under G. L. c. 231 A. The Administrative Procedure Act does not apply to actions by municipalities and was therefore unavailable to the plaintiff. G. L. c. 30A, § 1. Boston Edison
We conclude that the judge erred in ruling that the plaintiff did not qualify as a resident of Worcester for voter registration purposes under G. L. c. 51, § 1. A determination of residency for voting purposes requires a voter to have his domicil in the city or town in which he seeks to register. Id. at 576. See Putnam v. Johnson, 10 Mass. 488, 501 (1813). Opinion of the Justices, 5 Met. 587, 588 (1843). Opinion of the Justices, 365 Mass. 661, 663 (1974). It has often been said that “domicil is the place of one’s actual residence ‘with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.’... ‘Expressions such as these should not be taken literally.’ ” Hershkoff case, supra, at 578. “A change of domicil takes place when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least.” Id. at 576-577.
The judge’s findings, which are supported by the evidence, reveal that the plaintiff’s last known domicil was in Winthrop, the home of his adoptive parents; that he had not been there since 1965; that he had had no contact with his parents for five or six years; that he was a patient at Worcester State Hospital; that his living there was not a result of his own volition but a condition of probation; that he was employed in Worcester and maintained a bank account there; and that his only basis for living in Worcester was to comply with the terms of his probation and earn enough money to leave. In our view of these facts, the
So ordered.
