*1 Argued 5, 1944; January 16, December affirmed
ZIMMERMAN v. ZIMMERMAN 293) (2d) P. *3 and Justice, Before Bailey, Chief Rossman, Belt, Brand and Associate Justices. Kelly, Hay, Lusk, (Green Landye, & L. A. Peterson, Nels of Portland Harvey Francis all of Benson, Krause, Recken, brief), appellant. for on the Portland, Deputy Attorney, District Port- Shaw, Nadine B. Attorney, (James Portland, on Bain, R. District land respondent. brief), the J.
BRAND, against Betty H. Zimmerman Richard Jane Suit dismissing for divorce. From decree Zimmerman ground plaintiff, complaint the on had States, of the armed forces of United member requisite in the state of not established appeals. Oregon, plaintiff July plaintiff filed in the circuit
On county, Oregon, complaint for Multnomah court seeking ground on a divorce form, usual alleged have After June, occurred desertion adjudged her, the defendant was service *4 appearance. for at the trial However, want default Oregon appeared and contested the suit State military plaintiff, ground was who in the on had failed to States, of the United establish service statutory Oregon for the residence within state of year. period one L. A. 9-910. O. C. appears testimony plaintiff, it
From the of the parties 27, intermarried December were on plaintiff Washington The House, at Ohio. Court general in that he has a continuous testified terms been Oregon year resident of the more than one state immediately prior filing complaint, and to of the Oregon years a resident. He in in now such lived “and in time 1938 and went home ’40.” At the here, he lived Portland his was his intention to make home. He has never that intention. abandoned How- Washington ever, Ohio, he returned to House, Court living and was there when drafted into the armed forces of the United He States. testified that he was Oregon not a resident of the state of when he entered During parts service. of 1940 and 1941 he living Washington in was Court House, Ohio, where he married the defendant and remained until drafted into the service. Four months after he entered the Oregon service he was sent to and is stationed at Swan “permanent Oregon. Island, station,” Portland, He testified, substance, that at all times since he Oregon willing was stationed in been has able and to maintain home for himself and wife and intended alleged to do so. At the May, time of the desertion in living plaintiff was in Portland and was in the military service. The desertion consists the refusal plaintiff. of the defendant come and live with the marriage. The defendant has never left Ohio since foregoing constitutes all of the evidence rela- question relying tive to the in issue. The trial court, provisions Oregon of the constitution Oregon, in 3rd decision held that “no member of the *5 590 * * * a establish forces while member can, armed * * Oregon *.”
domicile in the State J. BEAND, jurisdictional order,
We will consider, requirements divorce, for established rules of the bearing of those domicil, common law relative to particular upon suits for divorce and their rules persons military application in service. the case 4 will consider the effect of Sections and 5 We then Oregon apply II of Constitution and of Article pending rules to the facts of the case. ascertained provides: The statute marriage
“In a suit for the dissolution of the plaintiff therein must be an inhabitant contract, the suit, at the commencement of the and of the state thereto; year prior which residence shall for one * * give jurisdiction the court be sufficient O. § L. A. C. 9-910. foregoing statute, used in the words
As interchange are used “inhabitant” “resident” and ably. 242 Stewart, P. 852. At Stewart Or. synonymous. are not law, residence domicil common merely place a factual idence indicates Res of abode. *
“ * * concep- The difference between three sojourn, (not residence, and domicil that of tions, now purely intention personal law) operation including one sojourner, To no of intention. become necessary, merely the fact of whatever is place. residence there in the For existence place in the the time be- to live an intention ing. of domicil the intention For the establishment merely place live in but to make be must § 10.3, Laws, on Beale Conflict home there.” p. 109. party is domiciled within
Where neither validly granted. 1 on be Beale Con state, no divorce can citing p. many eases. And see Laws, 111.1, 476, flict of p. § 110.4, 472.
Notwithstanding the distinction between “resi *6 “domicil” as the terms are used at common dence” and jurisdiction to it is held since the court lacks law, grant a a unless there domicil within the divorce is “inhabitant” state, the words “resident” when § L. A. used statutes such as O. C. 9-910 be should construed domicil. 1 on to mean Beale Conflict p. § 10.8, Laws, 116; Restatement, Conflict Laws (1934), Mortgage §§ 9, e., 110,b.; and Northwestern and Security Co., Co. Noel 71 N. D. N. Const. 300 W. 35 28; West, 461; West v. John, Hawaii St. John v. St. Ky. (2d) parte 820; 163 S. W. Ex White, 228 App., 88; Struble, Fed. Struble v. Tex. Civ. 177 S. W. (2d) 279; Dicks v. Dicks, 177 Ca. 379, 170S. E. 245. The recognizes Miller, case Miller v. 359, 136 67 Or. P. 15, the common law distinction between “residence” and by implication jurisdic but “domicil,” clear holds that grant depends upon proof tion to a divorce of domicil question, under L. O. C. A. 9-910. therefore, is plaintiff Oregon whether the was domiciled in for required period. approve following quotations
We brief from the (1934), Restatement, Conflict of Laws as con stituting exposition an authoritative of the common laiv requirements of domicil: “Every §11. person has at all times one domicil, ’’ person and no has more than one domicil aat time. “Except §12. §§17 as stated in and relat-
ing to by opera- a vehicle and to domicil person tion of only law, when a has one home and place is home, one his domicil where bis home is.” dwelling place person, §13. “A home is a of a distinguished dwelling places from other intimacy of that
person person relation between place. and the determining * * “c. [*] Factors whether important dwelling-place determining home. per- given home,
son’s consideration should be to: physical “1. characteristics; Its spends 2. time therein; Idle things therein; 3. The The he does persons things therein; 4. place;
5. His mental attitude toward intention when 6. His absent return to the place. dwelling-places Elements of other person concerned.” “(1)
§15. A domicil of choice a domicil through acquired, the exercise of his own will, legally changing person capable who is his *7 domicil. acquire “(2) person a a To domicil of choice, dwelling-place a with the intention must establish making it his home. of physical presence “(3) a The fact of at dwell- ing-place make it a and the intention to home must they for a so, moment, if do even concur; place.” change takes domicil of place, acquire §16. a domicil of choice in a a “To present physically person there; be but a must building necessary particular not a home acquisition domicil.” of a change person his cannot domicil §18. “A dwelling-place without an inten- ato new removal dwelling-place new his home.” make the tion to required acquisition for the §19. intention of choice “The is tin intention to make a homo a domicil of acquire a domicil.” to an intention and not ir»fact, acquisition of choice of a domicil §20. “For the to an be intention a home must make to intention make a home not to moment, at the amake home future.” in the military- plaintiff in the was not the or
Whether necessary for him it was States, the United service of foregoing conformity establish rules to with the within the domicil was pleading that his and evidence Oregon. of the establishment In default state of required period, would the trial court for the domicil jurisdiction it was author- in the sense that still have empowered the issue hear and determine to ized required domicil was estab- unless domicil, but jurisdiction try to the case without would be lished, upon merits. a further limitation however,
There is, acquire power person to domicil of choice persons applies in the armed in the case forces which acquire a To choice, States. of the United Conversely, legal capacity so to do. have must one by any acquire person a domicil of choice aet can compulsion. legal physical or Restatement, under done (1934), p. § Laws Conflict sailor, if “A he is ordered to a station soldier quarters go assigned he must and live to which acquire though a domicil there
him, he lives cannot assigned quarters family; with his for he in the go obey and cannot choose to orders else must allowed with he is to live his If, however, where. provided enough family pleases it is near where be perform duty, post enable him to his to his can where he lives.” Restatement, a domicil *8 c., (1934), p. § 1 21, 41; Laws Laws, Beale on Conflict Conflict p. 154. 21.2, 594 following support
The cases forth rule as set supra (35 West, v. in the Restatement: West Hawaii Gipson, 461); Gipson (2d) 587, 82; v. 151 Fla. 10 So. (Idaho) (2d) P. Winstead, J., Hawkins v. 138 972; St. supra (291 Ky. (2d) v. 163 John, 363, John St. S. W. 820); Trigg, Trigg (2d) 284, 226Mo. A. 41 583; v. S. W. 88); parte supra (228 Kankelborg White, Ex Kankelborg, Fed. v. (2d) Wash. 259, 199 90 P. 1018; Struble (Tex. 279); supra App. (2d) Struble, Civ. 177 v. S. W. supra (177 245) Dicks, 379, Dicks v. Ga. 170 S. E. ; 205 215 N. Harris, 108, Harris Iowa W. 661. in
The rule as set forth
the Restatement is
con
not
involving
fined
issues
in divorce
eases.
support
rule also finds
when domicil becomes material
Cunningham,
contests,
in election
re
91 N. Y.
974;
S.
probate proceedings,
Duryea,
in
Ames v.
York,
New
Bailey
Ky.
Lans.
6
155;
Adm’r.,
Norman’s
790,
228
(2d)
involving
W.
in
1005;
15 S.
cases
the statute of
Harvey,
limitations, Mooar
There is one of cases which deserves mention. Where one service dwells reservation which located on land ceded the state the United it has States, been held that he can not acquire domicil in that state for the reason that he is, living upon part land which effect, has ceased to be territory. the state and has become of Lowe, federal Lowe v. 983; A. 150 Md. A. L. R. Herken
595 Sealey (2d) v. Glynn, 946; 101 855, P. 151 Kan. v. by defendant); (cited Supp. Fed. 434 States, 7 United Pendleton, supra. v. And see Pendleton Dicks, v. Dicks Board v. rel. Cashman 600, 62; Kan. 201 P. State ex 109 N. E. John 809; Ind. 54 St. 302, 153 Commissioners, of concurring in supra. cited Contra, see cases John, v. St. supra. opinion Lowe, in Lowe v. Bond, J., of C. the rule of the are a few cases in which
There but rejected by apparently the has been Restatement early general language in of the case There courts. 15 221 New Abb. Pr. Townsend, York, v. Tibbitts (1862), tending active serv- indicate that soldier change in that it was the domicil, his but case ice cannot changed his that he had not of the soldier contention always a vital issue in this case Intent is domicil. against change. intent The the the evidence was employed language also inconsistent with the deci- Duryea, supra; later New York cases. Ames v. sions of Cunningham, supra. In re Ky. 652, L. 82 Radford, S. W. Radford plaintiff, officer, a naval sued divorce in Ken-
tucky, origin. challenged his domicil of The defendant testimony jurisdiction of the court. The of support plaintiff being origin, of his domicil of plaintiff necessarily speaking of the who was court out native state reason of the of his orders his superiors, said: any proper cannot said, “Such a one be sense anywhere to have term, other he has he left,
than home since has no choice as goes, remain, can to where he time he when or ” supra Ky. shall Radford, return. Radford 392). L. 652, 82 S. W. was, language quoted at most, dictum for the legal that he never disclosed had claimed evidence anywhere except his at actual residence origin. election cases are two from state
There (2d) App., Streib, Tex. Civ. S. McBeth v. 96 W. Texas, App., Savage Umphries, Tex. S. 992 and Civ. provi W. which are based constitutional expressly provides: state Texas which sion of the following persons “The classes .shall not be *10 State, to vote in this to-wit: allowed [*] # # “Fifth: All soldiers, marines and em seamen,
ployed army navy in the service of the or of the * * *” (Art. §VI, United States 1, Texas Const.) exceptions.
subject certain Those to decisions no have application, upon right even in of Texas, issue change purposes. to of soldier his for other Gallagher Gallagher, App., Tex. Civ. 214 S. 516;W. supra. Struble, Struble v. inquiry is whether, next state,
Our this the case may principles the common be decided law enun- by supported by ciated the Restatement and the author- provisions or is controlled cited, ities constitutional narrowly limiting right more a soldier to provides: a domicil of choice. The constitution purpose voting, For per- “Residence. no gained son be deemed 'to have shall or lost a resi- presence, reason of his dence, or absence while employed in the service of the United States, or of engaged navigation state; this nor while in the the waters of this or state, the United States, high any nor seas; of the while a student of semi- nary learning; kept any almshouse, nor while at asylum, public expense; at or other nor while con- any prison.” public § fined Art. II, Or. Const. states contain following of the The constitutions II, Art. identical substantially are which provisions 3; VII, Art. Arizona, § constitution: the Oregon of4,§ Idaho, 4; Art. Colorado, VII, § II, 4; Art. California, § II, Art. VII, 4; Indiana, Art. Illinois, § 5; Art. VI, § VIII, 11; Art. Louisiana, § V, 3; Art. Kansas, § 4;§ Mis 3; Art. Minnesota, VII, III, 2; § Art. § Michigan, Nevada, Art. Montana, IX, § 3; §7; Art. VIII, souri, Art. York, Art. VII, 4; New Mexico, § Art. New II, 2;§ Art. Dakota, V, § 125; Pennsylvania, North II, §4; Art. Art. Carolina, II, 7; South 13; § South VIII, § Art. VI, 4; Wis VII, 6; Washington, § Art. Dakota, § Art. VI, and III, 4; Wyoming, § Art. consin, § noticed were decided in states The cases now to be in the list constitutional foregoing having included Art. II, Const., Or. supra. similar provisions early times, Prom the California courts have held constitution does not a soldier from prevent its choice, a domicil of even for the acquiring purpose rel. Riley, ex Orman People Cal. 48 voting. an the court said: contest, election (1860), *11 * “* rule, as fixed the by Constitution of or is, sojourn that the fact such residence as nor soldiers, neither creates destroys citizenship- status of the leaving political soldier where it ex rel. Orman v. People Riley, was before.” 15 50. Cal. 48, Holden, v.
In Budd 28 137 an 123, (1865), Cal. elec court, the relevant contest, speaking tion con said: provision, stitutional
“* * * It declares that ‘no merely person to have or lost a gained shall be deemed residence or absence reason of his while presence employed which means States,’ in the service of United 598 simply determining residence, the fact of
presence or absence in the service the United States shall not be taken into account, or in other presence neither nor words, absence the service is a the United States condition which the * * * fact Nor residence can be affirmed or denied. preclude acquiring did them from a residence disposed in intention if Mendocino, do so. That it was their County a domicil in Mendocino sufficiently appears being from the evidence. Such nothing provi- there is case, constitutional question (which merely declaratory sion in of the law) way doing common which stands in the of their supra. so.” v. Holden, Budd Percy Percy, (1922), Cal. P. 765, 188 207 369 case, a divorce the court said: question, “The fact that, at the time in he was military duty army camp preclude on in an did not establishing him from his residence there if he so desired.” provision.
No mention was made of the constitutional supra, Benton, In Johnston v. in was issue changing an on order in an review of venue action for money. The court said: * *
“* It settled is well domicile of person way is in no affected his enlistment in military, country; naval civil, or service his thereby abandon lose his and he does domicile which he had when he entered the nor service, does place acquire one at the he serves. R. where 9 Kyser, L. Cal. 551; C. Stewart v. 39 P. People 19; Holden, ex rel. Budd v. 124; Cal. Percy 672; Estate 142 Cal. 75 P. Gordon, Percy, P. True, 188 Cal. fact of duty being military preclude him, his on does not establishing desires, if he from so where (Percy Percy, supra); he is stationed but the
599 that was not here is such evidence uncontradicted any never had intention desire—that he Benton’s (73 supra doing A. Benton, v. Cal. so.” Johnson 62). P. 60, 565, supra, Winstead, J., v. Idaho case of Hawkins The judge compel proceeding to a trial a mandamus was question jurisdiction a suit. The was divorce take acquired plaintiff, had residence soldier, whether citing supreme constitu- court, The Idaho Idaho. provision, supra, said: tional 5, “First: have been noted Section “It will gain- solely only goes
supra, the matter of voting purposes, losing ing the purpose not to residence establishing a new residence for the matter of prosecuting a suit for divorce.” Haw- (Idaho, supra (2d) 972, 138 P. J., v. kins Winstead, 973). Trigg Trigg, supra (226 Mo. The Missouri case 583), (2d) a suit for holds that divorce, A. 41 W. 284, S. effectively change his residence and that can a soldier largely “intention a matter of evidenced conformity such intention.” acts in with act or some provision, constitutional not mention the court does deeming inapplicable. apparently Kankelborg, supra Kankelborg Wash. (2d) 1018), same suit, a divorce to the effect. P. N. Holcomb, 97 Mich. 56 W.
In Wolcott question (1893), the was whether in- L. R. A. 215 entitled to home were vote mates of a soldiers’ It was located. was home held district which Michigan person who constitution, becomes under ’ gains no home residence in the an soldiers inmate municipality the home is located. The court an where reasoning interesting process of followed the result ob- *13 600 Silvey Lindsay,
tained in a similar New York v. case, (1887), disagreeing 107 N. Y. N. E. while reasoning by with the which the result was reached. Silvey Lindsay, the court cited the constitu- provision Michigan tional which is like that of and Oregon, question considered the as to intent and then an held that of a inmate soldiers’ home had not ac- quired voting municipality residence where the home was located. But the court also said:
“* * * question But the in each case is still, adoption as it was before the of the constitution, one of domicile or residence, be decided all provision (ar the circumstances of case. The § 3) disqualifies ticle upon right no one; confers no any simply one. It eliminates from those cir presence cumstances the fact of in the institution named or included within its terms. It settles the presence, law as to the effect of such and as to which opinion, there had before been a difference of and declares that it right does constitute a test of a regarded. person vote, and is not to be so The offering qualifica requisite to vote must find the Silvey Lindsay, supra (107 tions elsewhere.” 446). N.Y. N. 55, 13 E. Michigan court in supra, Wollcott v. Holcomb, Michigan
observed that the New York and constitu- provisions tional were the same, the facts in substantially two cases quoted “were identical” approval opinion with from of the New York court supported as if it the conclusion that an inmate aof acquire voting soldiers’ could not home domicil there. rejected reasoning However, appears which quoted portion Silvey Lindsay, supra, on which the decision of the New York case was based and decided as a matter of law that the inmate of the Michigan acquire home could not a domicil, his intent rel. being But see ex “immaterial.” State deemed supra Ind. Commissioners, v. Board Cashman having 809). held that an inmate of Then, N. E. 302, 54 voting could not home a soldiers’ expense, asylum public kept at the court at an while an inmate between the case such drew distinction person “employed in of a the service and the case Michigan York, in New United States.” As provides: constitution gained “No shall deemed to have elector be being employed
lost a residence reason his * * * in the service of the United States nor *14 * * any kept nor while student while at alms ** asylum public expense (Ital house, or at ours) § Mich. VII, 5, ics Art. Const.
The court said: opinion ‘by “We are of the that the terms, rea- by of,’
son of and ‘while,’ understood were the framers meaning. the constitution to have a different In very largely, former case, intention would entirely, govern question if not of domicile, while in the clearly latter it would not. It was provision give the intention of the former right, carry citizen the if chose, his residence place him employed with to the where he was in the service of the United States state, or of the and in equally that latter case it seems clear that it was give right. object, the intention not to that What otherwise, could there have been in the use of these two terms? adoption While the results of of one construction of the fundamental law of the state are not conclusive, nor of much force, where construction they clear, otherwise still are important determining in considerations the intent purpose and of the If law. the construction con- by tended for the relator be correct, follows that county all the inmates of prisons almshouses and of jails and option, are electors, at their in the town- located. ships are those institutions and cities where county, Wayne township where in Haukin,
In county were, there is located, the almshouse year than male inmates, 1891, 1,851 in the —more township.* in the number of voters twice the whole * * *" supra Holcomb, Mich. v. Wolcott 215). 23 L. R. A. 837, 839, N. 56 W. harmony the doc York cases are in with The New Lindsay, supra (107 Silvey N. Y. N. E. 55, 13 trine questions persons 444), of domicil and principles. Ames v. are decided on common law service Cunning (New 155); Duryea, supra 6 Lans. In re York, 974); supra (91 Y. N. S. and see re ham, Hoff’s (2d) and Estate, 60; Smith, N. Y. S. Hurst (2d) N. Y. S. expressed Silvey agree with the view
We supra, agree providing Lindsay, that no we gained a elector deemed to have shall be being employed in the service of the reason United clearly give the intention to the citizen States it was carry right place his residence with him to the “to employed in the service of the where he ivas United supra, forth in v. Holcomb, States” as set subject, Wolcott course, to the rules of the common It law. apparent that York either the New or the Mich- igan theory, soldier would be barred the con- *15 provision establishing voting from a stitutional specified conditions in the under the Restatement, supra. Laws, of Conflict unnecessary
It to us decide whether it the was absolutely right per- that intention to withhold from a kept asylum public son a student or while at an while at expense, public prison. in or while confined a There may a distinction between case be of one while a Icept or student and that of one while ivhile confined. § pass Art. II, xxext to the consideratioxx We Oregon Constitution. army, or marine iix the soldier, “No or seaman,
navy allies, be of the of their shall States, United acquired in in the state deemed to have consequence a residence having been stationed within any or marine same; soldier, seaman, nor shall such right §5, to Art. Or. II, have vote.” Const. arising previous of cases Our consideration provisions § under to Art. constitutional similar II, construing § in 5 of Or. will be material aid Const., § con II, same article. We have seen Art. is4, declaratory strued to be of the common law and xiotwithstandixxg provision the coxistitutional that no person gaixxed shall be deemed to have a residexxce presexiee reason his in the service the Uixited open it is still States, to a soldier to establish domicil requisite qualifications if the court finds “the else Oregon where.” Sec. 5 of Art. II constitution “by does not use the words reason of,” but instead it employs phrase consequence having “in of,” been phrases stationed within the state. The two as are used meaning in identical axxdit is therefore reasoxiable being § construe clause Art. II, as also declara tory of the common law. Under such a construction, having Oregon mere fact of been stationed in would not permit acquired us to deem that a soldier had domi ciliary rights, permitted but if the Avas soldier to and, Oregon, did fact, establish home of a outside requisite reservation, with the ma animus might nendi, be “deemed” be a resident. It apparent that the Avord“deemed” as used in 4 and § 5 of Art. creating II, should not be construed as only disputable, presumption. conclusive, but Erick (2d) son v. P. Erickson, 1,Or. *16 pro following have states the
The constitutions Oregon § constitu 5, of the II, to Art. similar visions § § III, 7; Art. Arkansas, Art. Arizona, VII, 6; tion : §VII, § Indiana, Art. 5; Illinois. 2; Art. Delaware, V, 4; Kentucky, § 146; Section § II, Art. 3; Iowa, Art. II, Michigan, § § 3; Minnesota, Art. III, 1; Art. Maine, II, Art. Nebraska, IX, §6; Art. § 4; Montana, VII, Art. Jersey, § Art. § Dakota, Art. North II, 1; New VI, 4; § § II, 4; Art. § Island, V, 5; Art. Rhode 126; Ohio, V, § § 5; Art. III, Dakota, VII, 7; Wisconsin, Art. South § Wyoming, VI, Art. and provisions
All states in the last above named military persons expressly In sub service. to refer incorporated stantially every provision instance “Suffrage entitled, or the Elections,” and in an article purports Avoidingin to im each instance but the like, military right persons in pose limitations any purpose. domicil of choice sendee to preAdously proAdsions therefore, from the differ, These provisions, most of which commence with the noted . * voting purpose ’’ We shall Avords“for headings part orig are no title assume provisions that the are intended inal constitutions purposes apply domicil for all residence or —a wholly from doubt. Never matter Avhichis free passed upon questions which have theless, the courts provisions constitutional like that of domicil under indicated that Const., Art. have the common II, 5, Or. prevails as stated in the Restatement. rule law Among arisen cases Avhichhave under constitu- following: provisions are the sort, of this tional Harris, supra (205 In the of Harris case Iowa 661), plaintiff N. husband who had 215 W. been brought for divorce in Iowa. suit service *17 his child a of Iowa since Plaintiff had been resident that had and was contention that residence hood his notwithstanding changed, the fact that he never been military orders in several other states had served under special long periods filed a of time. The defendant appearance contending plaintiff was that the not resi provi court the constitutional dent Iowa. The cited proceeded to on but consider evidence and sion, plaintiff concluded that had thereof not basis changed properly domicil and that the suit was his filed many in Iowa. The court reviewed authorities, includ ing Topic of Tentative 3 Restatement of the Con substantially of Laws which identical flict to the same topic quoted. final from edition which we have The eourt said: any army post per “If a soldier stationed at post,
mitted to live outside it was held In re Cunningham Rep. al., et 45 Misc. 206, 91 N. Y. S. person might acquire such 974,that a domicile there. may There seems to be no doubt quire that soldier ac apart army, a new domicile from the and the stay fact he cannot the new if home, called away army, prevent to the forming does his acquiring animus manendi and the domicile there. Harvey, Mooar v. Hodgson 128 Mass. 219; v. De Beauchesne, 12 Moore P. S. 285; President of the Attorney v. United States Drummond, 33 Beaver, 449; Pottinger, eneral v. 30 L. J. Ex. 284.” Harris G v. supra (205 Harris, Iowa 108, 215 N. 662). W. 661, It is therefore clear that the decision which was favor able to the contention of the soldier to the effect that changed his had not been upon was based a con sideration of the evidence and not the constitu provision. Remey tional See also Equali Board of Burlington, supra. zation of
[606] Ky. supra John, v. St. case St. John 822), (2d) effect. is to the same W. 363, 820, 163 S. pro- mentioning the constitutional much as Without so court vision, the said: legal right resi a soldier to “The assigned locality to he has been in a which
dence cannot be doubted. Domicile, Matter 12; 28 C. S. J. Cunningham, N. 974; 91 Y. S. 206, 45 Misc. (Grant’s 144 N. Y. S. Estate, 257, 83 Misc. Matter of 567; Percy Percy, And P. 369. 765, Cal. good though is as the soldier this rule holds even military post signed to a on land ceded a state government at the federal so to the post him a of the state. would not constitute resident authority A. on the The text of 17 J. based App. Trigg says: Trigg, 226 Mo. S. W. 2d '* ** person engaged if a *18 by and factum establishes a resi service animus military post, but the with the near outside dence making purpose home of such residence the him of. may acquire a in wife, and his domicil such self supra. place’.” John, And see Ky. St. John St. Bailey supra v. Norman’s Adm’r., 790, (2d) 1005). 15 W. S.
In of Knowlton v. Knowlton, the case Ill. question N. E. the of residence was determined on basis of the evidence without the reference the provision. constitutional Buser, 15 N. Schweitzer J. Misc. 190 A. right P. A. in
89, the of W. workers to vote district the camp the located was where was involved. The court quoted provision constitutional and said the that work militaiy in P. A. not in the ers the W. were service and seventy-six persons of the “therefore none whose votes questioned proceeding possessed in are this the dis qualification of federal service mentioned in the state constitution.” the However, nature or extent of the dis- dis- in service was of qualification persons that in case to indicate There the nothing cussed. near, but of, a domicil outside could not soldier in Re- conditions specified his station under of of Laws. statement Conflict it from the authorities above
We think clear which provisions cited that various constitutional that no soldier shall be to have acquired state deemed in consequence by the state reason should be con been stationed within same having if the were inserted strued as word immedi “merely” “in consequence words of” that such ately before do not prevent constitutional provisions acquisition by a soldier under rules the common law forth in the as set Restatement Conflict of Laws.
It
is claimed
in this
that
respondent
case
we
bound
more
are
strict construction
of the
constitutional
Oregon
by reason of
provision
the de-
cision in
case
Darragh
Bird,
"* ** Many have fallen into this error for the they reason make no distinction between an of the government and a employee soldier, seaman or marine. Sec. 4 of II. article of the constitution *19 ‘For the says: purpose voting, no person shall be deemed to have or gained lost a residence reason of his or presence absence while employed in the service of the United States or of this state.’ Sec. 5 of the same article says: ‘No soldier, etc., shall be deemed to have acquired residence in the state been consequence having stationed within the nor shall he have same, right the to vote.’ The ques- being intention, the and one of act tion entirely matter left the the constitution framers of They say parties themselves. of the to the discretion per right enlarge restrict the neither we will respect, to elect it with them but leave in this sons as to where they The their residence.' claim will In the 5 is this: sections and between difference voting,’ purpose language ‘for the 4th the intending person evidently himself etc., place of his choice his residence. should make deemed,’ etc., ‘shall be soldier,’ etc., 5 is: ‘No Sec. People giving in the matter. to him no discretion 123) is Budd v. W. Holman Cal. rel. R. R. ex a case * * *” Darragh very point, and similar. 239-240). supra (3 Or. Bird, Bird, Darragh Art. II, court construed harmony which we have here with the conclusion in4, tty opinion app that a expressed, aren of the was but applied §to 5. should be construction different circuit court of in the Wasco case was decided The supreme County appealed court, but to the and was (See appeal footnote, 3 was “withdrawn.” later the 568.) therefore, never received the'con case, Or. supreme Further research court. of the sideration question that the same was before have disclosed would Fitzgerald, supreme court in Wood Or. 568, appeals arose at the same contests which on other Darragh an case. This was also involved in the election Speaking persons vot of the whose contest. election questioned, ing qualifications court were said: * * “* employees Both these individuals were government and in civil States of the United being as forth, facts above set service. The question applicability arises as to the effect of of the state constitution to and II, section article persons situated. so We cannot see the *20 legal placing propriety or such a construc force preclude upon an would em tion section as government ployee of the or state United States making may any change he from desire to make. in his domicile that gain
Though an one cannot such presence of his or or lose a residence absence when reason yet employed service, in the can gain a at establish his domicile and a such by taking point may proper as he see fit, the steps independently appropriate employment. so do as to of his People section (28 137,) In The v. Holden Cal. 4, was II, it constitution of is almost identical with that of decided article (the language California, which II,
article section Oregon,) of the constitution of does not add to or upon take from the conditions which the fact of depend; residence made to and it was held that simply determining that section meant fact of that in presence residence, absence in the service of the or in States shall not United be taken account, into presence words, other neither nor condition in absence upon service United States is which fact of residences can be affirmed or * *” Fitzgerald, supra denied. Wood v. ®. Or. 572-573). Day To the same effect see v. Salem, P. 114, 131 1028, 65 Or. Ann. Cas. 1915A, only appears phraseology It that the which has ever employed been a court of this state adverse to right of a Oregon soldier to domicil in under the' conditions set forth in the Restatement of the Conflict of Laws is to be found in the words of Darragh supra, circuit court v. Bird, as follows: “Sec. 5 is: ‘No soldier,’ etc., ‘shall deemed,’ be etc., giving to him no discretion in the matter.” Wood v. Fitzgerald contains no rights reference or to the change of a soldier to his domicil. pronouncement Darragh purports case
be based the California case of Budd v. Holman. obviously to the case and refers error The citation is already con Cal. 123. We have Holden, of Budd v. any person who did not involve ease. It sidered that any provision in service, nor there inwas *21 Art. II, similar to Or. constitution California the again to is called the fact that attention Const., provision of its court held that consti the California merely declaratory The of the common law. tution was Darragh purports single to in v. Bird which sentence may pure is dictum. There be v. Holden follow Budd which the statement would under be en circumstances example, tirely in the of a as, for case soldier correct, upon government required a reside reserva to who court intended to intimate that it is tion. If the circuit military person impossible a in service to contrary dictum is then the to the choice, a of domicil disapproved. authority weight and is of foregoing appears authorities, From the review question acquisition by plain- as the the clear that Oregon may in the state of a domicil be tiff of deter- principles by of the common law notwith- mined provisions §§ standing of Art. II, or 5. plaintiff ultimately of the was a The question law to be determined court in view of plaintiff that testified he was, in fact, the evidence. Oregon living had been resident of in and for more year. evidence, This taken was alone, than one suffi prima case of domicil. to raise v. cient Ames facie Gallagher Gallagher, supra; supra; Duryea, Story, v. § 46. But when it Laws, was also Conflict made to plaintiff appear was armed forces of the drafted Ohio and States; was sent United authority permanent station, to a Island, Swan Oregon, prima case overcome. was facie *
“* * prima Nor is it even facie evidence when the nature the residence domicile either presumption with, or rebuts the of the inconsistent Dicey, of an manendi, existence 19 animus Dom. Rule * * supra (15 *.’’ Buser, N. Schweitzer J. 93). 217, 190 89, Misc. A. Gallagher Gallagher, the court said: holding seen no “We have decision
testimony party as intention to fix a domicile in the at some time future would be sufficient to by any accompanied fix tion it, act, when declara ** *” Gallagher even, to that effect. Gallagher, supra (Tex. App., 214 Civ. S. 516,W. 518). every acquisition *22 In case of a new domicil of choice, the fact and intent must concur. 19 C. Domi- J., p. p. § § 401, 39, § cile, 9, 418; C. J. S., Domicile, 9, 11, p. 12, (1), g. p. military
In the think ease one service, we living that the mere fact in a state and at a station military compulsion satisfy therein under does not requirements factual for a domicil of choice if even the Gallagher Gallagher, animus manendi be In shown. v.
the court said: “* ** while it seems from some authorities by appellee
cited a that soldier can abandon his origin yet domicile and very select another, those that, authorities hold cile in order to show a new domi- during term of enlistment, it must be shown by unequivocal the ‘clearest and proof. most ” Gallagher Gallagher, supra (Tex. Civ. 517.). App., 214 R. W. 516. (228 90), supra parte Fed. White, In Ex court said:
“Assuming proposition that a member may change army if not inconsist domicile, his military to be based situation, one with the ent authorities, it still and established reason, change clear, must be the intention that remains and must something and with fixed be associated indicating purpose, such a and the as established against are an idea.” in this case such circumstances supra. parte To the same see White, effect, Ex Sealey supra (7 Supp. States, Fed. v. United supra (Idaho, 437) Winstead, J., Hawkins and (2d) 972). P. supra, the court said: Harris, Harris v. may private or a an estab “It true that officer is his ac station, a near thus home lish quire but this must there, be established domicile change v. by independent evidence of of domicile to * * *” supra (205 place. Harris, Harris 661). N. And 110, 215 W. see Schweitzer Iowa supra; supra. v. Dicks, and Dicks Buser, sup- Again, has been held intent must it be “An ported intent to conduct. actual new futile where consummated.” In re domicile (2d) 60). supra N. Y. Estate, S. Hoff’s any in vain for have searched We evidence requirements. meets residence at bar that the case government aat naval station under fact of “independent change is not evidence” of a orders any find nor can we “actual conduct” domicil, volun *23 showing plaintiff tary that the character, had taken away up per from his station or abode had an been by military authorities to or mitted choose establish He was orivinallv abode. domiciled in such Ohio where he was drafted. He said he intended to establish Oregon got home “when I stationed there.” ready, willing, short, was no able, but there is evidence that he had, established a home fact, either permitted for himself or for or her, that he was to, any dwelling place away had, established from his station. jurisdictional
The evidence fails to disclose the fact Oregon period year of domicil in for the of one and the decree the circuit court is affirmed.