3 N.Y.S. 367 | N.Y. Sup. Ct. | 1888
Lead Opinion
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
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
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 ques
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 provis
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.
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.
Concurrence Opinion
My associates have each examined this case with care, and have reached opposite results. Their opinions show exhaustive research, and it seems as though but little can be profitably added upon, either side of the question involved. My examination of the case has led me to the conclusion that the cause was properly disposed of at the circuit, and, that the judgment should be affirmed. I therefore concur in the result reached, by Justice Leabned, and mainly in the reasoning contained in his opinion. Without attempting to discuss at length the question involved, I will proceed briefly to state the conviction which the examination of the case has produced upon my mind. On the 29th day of April, 1863, the legislature passed, aii act entitled “An act establishing and defining the qualifications, duties, and powers of the health officer of the harbor and port of Hew York.” Laws-1863, c. 358. This statute defines with precision the purposes sought to be-accomplished thereby, and prescribes the duties which such statute intended to devolve upon those who were to be appointed to execute the same. It seems quite evident, from its provisions, that the legislature regarded the-duties thus imposed, important, responsible, and local in their nature, and sufficiently onerous to engross the undivided time and attention of the officials who should undertake to discharge such duties. Section 54 of such act provides-as follows: “Sec. 54. The governor shall nominate, and by and with the advice- and consent of the senate, appoint, three discreet persons, citizens of this state, who shall be residents of the metropolitan police district, as commissioners of quarantine, for the purposes of this act, who shall hold their offices for three years, and until their successors shall be appointed and qualified. He-shall every three years thereafter, and as often as vacancies shall occur by reason of death, resignation, insanity, or removal from the said district, appoint, by and w-ith the consent of the senate, citizens as aforesaid, who shall reside-in said district, to fill the places of those commissioners whose terms shall expire or become vacant, and the persons so appointed shall hold their offieesfor three years, and tyitil their successors shall be appointed and qualified.” It is difficult to conceive a more significant and emphatic declaration than that-
In regard to the retention of the juror Clowrey, while his examination did not disclose a great degree of intelligence, especially in regard to the political history of the state, yet he may have possessed capacity sufficient to have en7 abled him to exercise sound judgment in regard to the question upon which he was called upon to pass. He was plied with questions which were calculated to perplex and embarrass him, and his surroundings were not such as to produce composure, and to enable him with facility to exercise his faculties. It was peculiarly the province of the trial court to pass upon the competence of the juror, based upon his appearance and examination, and there is not, I think, in the case, evidence of an abuse of judicial discretion which calls for a reversal of the judgment upon that ground. Hor was fatal error committed by overruling the defendant’s peremptory challenge of the juror Carroll. Regarding the practice established by the court at the trial# in regard to impaneling the jury, and the course pursued by the respective counsel in reference thereto, and bearing in mind that this was the trial of a civil, and not a criminal, action, I am convinced that', under all the circumstances, it became a matter of discretion with the court whether to allow or to reject such challenge. People v. Carpenter, 102 N. Y. 239, 6 N. E. Rep. 584. Certainly the rule in this respect should be enforced with less rigor in a civil than in a criminal*action. The judgment should be affirmed, with costs.
Dissenting Opinion
Appeal by the defendant from a judgment in an action in the nature of a quo warranto, removing the defendant from the office of quarantine commissioner of the metropolitan police district, upon the ground that he was ineligible to the office on the alleged ground of his non-residence in the district. The statute provides that “the governor shall nom
Upon these facts the question to be decided was whether the defendant was • or was not a resident of the-metropolitan police district, or, in other words, ■of the city of Hew York, at the time of his appointment. The trial judge, in various forms of expression, held and instructed the jury that the statute requiring the appointee to be a resident of the metropolitan police district was not satisfied by his residence in the district, unless he was also domiciled there. The jury were instructed that a man may reside in one place and retain his domicile in another, and that if the defendant retained his domicile in Owego, while his residence was in Hew York, he was not eligible to appointment.
What is meant .by the words of the statute, “who shall be residents of the metropolitan police district.” A resident of a place is one who dwells in it for a continued length of time, and at the time in question is still dwelling in
The English cases are to the effect that, whenever residence is prescribed: by a statute, such meaning must be given it as tends to accomplish the purposes of the requirement. If a subscribing witness must add his place of residence to his name, he may designate that place where he is most usually to-be found. Blackwell v. England, 8 El. & Bl. 541. If the maker of a bill of: sale, he must designate that place which will best tend to identify him.. Hewer v. Cox, 3 El. & El. 428. If residence at the university of Oxford is-prescribed, in order to qualify for participation in its government, actual, and not constructive, residence is required. Queen v. Vice-Chancellor, L. R. 7 Q. B. 471. The residence to qualify a person for registration as a voter is thus defined: “A party must at least possess a sleeping apartment, but an uninterrupted abiding at such place is not requisite, and absence, no matter how long, if there be the liberty of returning at any time, and no abandonment of the intention to return whenever it may suit the party’s pleasure or conven
An examination of the statute under which the defendant was appointed makes it plain that the legislature intended that the appointee should be personally and actually a resident of the district, and not merely constructively so. Section 52 of the act reads: “It shall be the duty of the commissioners-of quarantine to hold daily meetings, Sundays and customary holidays excepted, from the 1st day of May until the 1st day of November in each year, and as often in the other months as in their judgment maybe necessary. ” Actual residence would secure personal presence and opportunity for efficient service. Had defendant’s actual residence been and continued in Owego, and lus constructive residence in New York, the purposes of the statute would, have been in danger of defeat. Something more than residence is prescribed by the statute. The appointees must be “citizens of the state.” The legislature thus expressed a loyalty to the state, and provided some guaranty for it in the status of the appointees. It also required them to be be “discreet persons. ” The qualifications of the defendant satisfy both the letter and the-spirit of the statute. The further inference seems valid that this statute, which expresses with aptness and fullness particular essentials of eligibility,excludes the implication of more. This inference is strengthened by the consideration that the condition sought to be added is now essential. Whether the defendant’s domicile was constructively in the one place or the other was-of no moment, so long as his actual personal residence was in the city of New York, and his domicile and citizenship of the state. The same law prescribes, his duties in either case.
These inferences seem further strengthened when we consider the use made of the term “domicile” as a factor in jurisprudence. We are not advised that the word appears anywhere in the statutes of the state. The “Political Code” proposed by the commissioners in 1859 used the word in defining citizenship,—a definition which would now be superseded by the fourteenth amendment to the federal constitution. One would naturally look for the word in those statutes which make jurisdiction dependent upon residence; as-actions for divorce, administration of estates, care of paupers, and the effect of insolvent discharges. It is a term of private international law, and by analogy, and from convenience, is often used in interstate law, and in infra-state law, in determining which of two conflicting jurisdictions is the right one. When a man has but one residence in fact and intent, that residence,in both legal and common acceptation, is his domicile. The two words may-then be considered synonymous. As most persons have but one residence, the meaning of the two words is generally much the same. When no distinction exists, none is made. It is when a person has no known residence,' or the country or jurisdiction in which it exists is doubtful, or he has two residences, one in one country or jurisdiction, and the other in another, and it becomes necessary, in any of the cases stated, to determine which of the two-jurisdictions may of right give the law affecting his property and personal, rights, that the legal idea of domicile becomes significant. It is then important to determine, not where he resides, but to what country or jurisdiction he belongs, to the end that his personal property, in case of his death, may be distributed according to the law of his own country or jurisdiction; that the validity of his divorce, and, in some countries, of his marriage, the,legitimacy of his children, and the binding force of insolvent discharges, may be by the like law determined. And, in case of war between the country of one’s origin and the country of his residence, the place of domicile may determine whether he and his property are to be governed by the rules applicable. to a friend or an enemy. Of course, when the law of the domicile, instead of the law of the place of residence, should prevail, the distinction between residence and domicile must be made. That distinction is marked-
The difficulty of exact definition of the term “ domicile ” is confessed by j udges ■and text writers. Wheat. Int. Law, § 320; Thorndike v. City of Boston, 1 Metc. 245. The defect is sought to be supplied by the precedents which give instances of exclusion and inclusion. The idea of the domicile of origin is easily grasped, as is also that of choice, when the person has but one residence, and that a permanent one. “ Domicile of. choice, ” said Lord Westbtjry in the case of Udny v. Udny, L. R. 1 H. L. Sc. 458, “is a conclusion or inference which the law derives 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. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness, and it must be residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation. ” The authorities above cited, as well as many others, are in accord with this description. 'The idea is of a home residence, kept in fact and in intent, with the view to permanency, though business,‘pleasure, health, or constraint may lead to the ■occupation of a temporary and long-continuing residence elsewhere.
There is no need that we should decide in this case whether the defendant’s domicile still remains in Owego. Here is no question of competing jurisdictions, or of conflicting laws. In any event, the defendant was domiciled in the state of New York, and a resident of its metropolitan district. In People v. Flanagan, 66 N. Y. 240, the title of the defendant to his office ivas challenged upon the alleged ground that the election was not authorized by ■the terms of the statute. The court said: “Being a question between the defendant- and the people, and dependent upon the construction to be given to acts of the legislature, it seems reasonable that the defendant, whose good faith is not questioned, should have the benefit of the most favorable construction.” The word “resident” is used in its simple sense, and the circumstances which, under other statutes, sometimes require an examination to determine whether the idea of domicile is also implied, are absent. The words of the statute, its purpose and meaning, the circumstances and the reasonableness ■of the case, as well as accepted usage, forbid that we should confuse the simplicity of the conditions of the defendant’s eligibility by the interpolation of a separable and non-essential element. The judgment should be reversed, with costs of this appeal, and, as the facts are not in dispute, the complaint should be dismissed on the merits, with costs of the court below.
