Cadwalader v. Howell | Cases | Westlaw

**1 *138 In Case.

The residence required in the laws of this state, to entitle a person to vote at an election, means his fixed domicile, or permanent home; and is not changed or altered by his occasional absence, with or without his family, if it be animo revertendi.

A residence in law once obtained, continues without intermission until a new one is gained.

This case was submitted at September term last, without argument, upon the following statement agreed upon at the last June Circuit of Mercer county.

This cause coming on for trial at this time, it is hereby agreed by and between the parties, that the following statement of facts *139 shall be submitted to the Supreme Court, for its judgment thereupon:

The declaration charges, that the plaintiff was legally entitled to vote at the election held according to law, on the second Tuesday and Wednesday of October, A. D. 1838, and did offer his vote, at the place where the election was held in the township of Ewing, in the county of Mercer; and that the defendants being the Assessor and Collector of said township, and two of the Judges of Election, did wilfully and unlawfully reject his vote, and prevent the same from being received.

The plea is the general issue.

The election for members of Congress, members of the Legislature, and other public officers, was legally held at the time and place laid in the declaration, and the defendants were the Assessor and Collector of said township, and acted with Aaron Moore, as judges of said election.

**2 The plaintiff is a freeholder in said township, and has been such, since the month of September, A. D. 1823, when his father Lambert Cadwalader died.

The farm and domicil of plaintiff has been in the possession, ownership and occupation of himself, his father and grandfather, for more than a hundred years, and has at no time during that period, been in the possession or ownership of any other person.

During this whole period, and up to the time when the vote of plaintiff was rejected, all the taxes assessed under and by virtue of the laws of the state, have been regularly paid upon and for the said farm.

The plaintiff was born in the Mansion house, on said farm, was educated in this state, and has lived there with his family, and has always had his home and residence there, unless the facts hereafter stated, may be regarded as having altered and changed his residence, so as to deprive him of a right to vote in said township.

He has held several offices in the Militia, and has always exercised his right of voting, without question or objection, until October, 1838, when his vote was rejected as is hereinafter stated. He voted at the election in October, 1837, when the defendant William Howell, was one of the judges of the election. Both of the defendants were judges of election in 1838.

*140 The taxes for the years 1837 and 1838, were assessed on his farm and ratables, by the defendant William Howell; and were collected by and paid to the other defendant Cornelius F. Moore, and among other things, they were assessed collected and paid upon his carriage and horses, and dogs, and all other taxes as a householder; and certain persons living with him as servants-- paid the taxes in those years, the same persons going with, and residing with him in Philadelphia, and returning with him, and are living with him still.

Plaintiff has repeatedly acted as a grand juror, before and since the winter of 1837-8, and particularly in April 1838, in the Circuit Court of the United States in this District, with the knowledge of said court.

Plaintiff has always held a pew in the Episcopal Church in Trenton, where himself and family have worshipped, and he has held a pew in no other church or place.

Having many family connections and friends in the cities of New York and Philadelphia, the plaintiff has been in the uniform practice, for fifteen years past, of spending a part of every winter, in one or both of those cities, in visits to his friends. From 1831 to 1837, he rented rooms for the accommodation of himself and family, which he used during those visits.

In 1838, his family requiring larger accommodations, a friend agreed to take a house at an annual rent for two years, with the privilege of a third, which agreement plaintiff afterwards ratified, and he took some articles of furniture from his residence in said township, and provided others for the comfort of his family while they should occupy the same.

At the usual time of his annual visit, in the month of December, 1837, he went with his family and occupied the house so rented, until the usual time of his return in the Spring, being about the beginning of May, when he brought his family back to his residence in said township of Ewing.

**3 On all these visits, and especially in the winter of 1837-8, he took his horses and carriage, and a part of his servants with him; but the taxes upon them, were at all times paid in said township, and never were paid at any time in the city of Philadelphia, or elsewhere, but in the years 1837 and 1838, they were assessed and collected in the county of Mercer, in this State.

*141 While he occupied the house before mentioned in Philadelphia, and also when he rented rooms, as before stated, many articles of food and provisions and liquors, were supplied for his use and the comfort of himself and family, from his farm and residence in said township, and generally, as often as once a week--his servants being sent for and with them.

During all his said visits, both before and after he rented the said house, it was his uniform practice to return to his home in said township, always, as often as once in four weeks, and generally as often as once in two weeks, for the purpose of directing the labor upon his farm, and taking care of his interests in other respects: and on these occasions he usually staid from one to six days, and always ate and slept in his Mansion house; these visits were paid in the winter of 1837-8, as frequently and were as long as at other times: the fires in his house being kept up, and his bed room always ready for him whenever he should arrive.

On all his absences from his farm, he left it in charge of a hired white man, who has lived with him for about twenty years, and also left one or more persons in his house, who had lived with him the preceding year. At the time when he rented the house as before stated, in his conversations with his acquaintances and friends, both in New Jersey and Philadelphia, he frequently and uniformly declared, that he had no intention to change his residence, or to alter his situation and rights in any respect, but that his only object was to make his family more comfortable during their stay in the city. That his ancestors had lived and died in New Jersey, and it was his wish and desire to do the same.

The plaintiff has not at any time, acquired or claimed a residence, or exercised any right of a citizen, any where but in the state of New Jersey.

About eleven o'clock of the second day of the election in October, 1838, plaintiff offered his vote to the judges of election, when some person made a verbal challenge on the ground of his want of residence. The defendants expressed their opinion, that he had not a right to vote. Plaintiff then demanded that an oath should be administered to him, which was accordingly administered. He was then asked if he had resided in this state for one year next preceding the said election. To which he answered, *142 under oath; that he had always resided in this state, that he had not changed his residence, nor intended to change it, nor done any act, which in his opinion could affect or take away his right to vote, and stated in substance the facts herein-before detailed. His vote was rejected without any evidence being taken to sustain the challenge; and thereupon plaintiff required to know the separate opinions of the judges, when the defendants expressed the opinion before stated; and Aaron Moore the other judge of election, dissented and declared his opinion in favor of plaintiff's right to vote.

**4 About five o'clock in the afternoon of said day, plaintiff again returned to the place of holding the election, taking with him two or three persons as witnesses, and again offered his vote and demanded that the witnesses should be sworn. Whereupon John Titus and Wesley P. Hunt were sworn, and testified in substance to the facts and conversations herein stated, in relation to his intentions in renting the said house, and as to his alleged change of residence; and cases were referred to, and the meaning of the law explained by him, and on his behalf.

The vote of plaintiff was again rejected by the defendants, Aaron Moore the judge of election, declaring his opinion in favor of receiving it.

Neither in the morning when plaintiff first offered to vote, nor in the after part of the day, when he offered a second time to vote, was there any witness sworn, or any evidence given to, or received by the defendants, to prove any fact in relation to the residence of the plaintiff. The Plaintiff, John Titus and Wesley P. Hunt, were the only persons to whom an oath was administered. The persons objecting to the vote, were Dr. Thomas L. Woodruff and Theodore Wallace Hill.

If upon the foregoing statement, the court shall be of opinion, that the plaintiff was entitled to vote at that election; judgment shall be entered for the plaintiff, with six cents damages. If the court shall be of opinion, that the plaintiff was not entitled to vote, then judgment shall be entered for the defendants.

Either party shall be at liberty to change this state of facts into a special verdict or bill of exceptions; and bring a writ of error, within three months after judgment.

This action, as appears by the above state of the case, was brought against the defendants, for refusing the plaintiff's vote at a popular election. The facts are all admitted, and the only question submitted to this court is, whether or not the defendants, (two of the judges of election,) did right in rejecting the plaintiff's vote; if not, it is agreed that judgment be entered for the plaintiff, with six cents damages.

By the fourth section of the act, Rev. L. 740, it was enacted, “that from and after the passing of this act, no person shall vote in any state or county election, for officers in the government of the United States or of this state, unless such person be a free white male citizen of this state, of the age of twenty-one years, worth fifty pounds proclamation money, clear estate, and hath resided in the county where he claims a vote, for at least one year immediately preceding the election.”

It was under this act that the vote of the plaintiff was offered, and it was upon the last clause thereof, that it was rejected.

The judges of election, from the haste incident to a decision made at the polls on election day, or from the want of proper reflection and advisement, have fallen into a manifest error. Upon the facts stated and proved at the poll, it is difficult to imagine how any serious question could have been made, as to the plaintiff's right to vote. It is understood to have been on the ground that he had with his family, spent the preceding winter in the city of Philadelphia, and that he consequently had not been a resident in the county, for one year at least immediately preceding the election. If this were the basis of the decision, it must have originated in the judge's confounding the idea of a legal residence, with a mere temporary stay.

**5 When the statute required, that the voter should have resided in the county &c. it meant that he should have had his home there. In the seventh section, the right to vote was limited to that township in which he usually resided &c. It did not mean however, that he must have eaten and lodged there continuously for the space of a year, to entitle him to his vote. It did not mean, that he was not to absent himself during the year, for special purposes of pleasure, or business, either with or without his family. It meant nothing more than that he should have his home, his residence, within the county, for such space of time. *144 It is important therefore, that we understand what the law means by residence. The word residence, (fixed residence I mean,) is generally used as tantamount to, domicile; though I am not prepared to say whether they are or are not in all respects, convertible terms.

Thus in Guier v. O'Daniel, 1 Binn. R. 352, n., it is said that a domicile may be defined to be a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time. So Kent, in his commentaries, vol. 1, p. 76, in treating of national residence, speaks of it as tantamount to national domicile; and Vattel has defined it in substantially the same way. Judge Story says, that domicile in a legal sense, is where the person has his true, fixed and permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning. Story's Conflict of L. 39. Such domicile once obtained, remains to the possessor thereof, notwithstanding occasional visits to foreign countries, and until other domicile is acquired. The Friendschaf v. Winn et al. claimants, 3 Wheat. R. 14; The Nereide, Bennett, master, 9 Cranch, 388; Jennison v. Hapgood, 10 Pick. R. 77; Bruce v. Bruce, 2 Boss. and P. 228; Harvey v. Richards, 1 Mason C. C. R. 408; Richards v. Dutch, 8 Mass. R. 506; Dawes v. Boylston, 9 Mass. R. 337. This principle is applied to cases of national residence; and so in pauper cases, it is applied to questions of domestic settlement. The settlement or legal residence of a pauper, is prima facie at the place of his birth, and this settlement continues until a new one is gained; there can be no suspension of it; 3 Burns Just. 365, 488; St. John's Wapping and St. Botolph's Bishopgate, Burr. Sett. Cas. 367. I do not mean to say that the elective franchise of the citizen, may not be suspended; for, pending the year's residence required by our statute, the fact is so; but I mean to say, that a residence at law once obtained, continues without intermission until a new one is gained.

It is not pretended, that the plaintiff ever acquired a legal residence in Philadelphia; on the contrary, he has always disclaimed it; not only in conversation with his friends, but before the judges of election, upon his oath. He has never exercised or pretended to claim any rights, civil or political, except as a citizen of New Jersey. He lived, at the time he offered his vote, *145 and still continues to live in that domicile which had sheltered himself and his immediate ancestors, for more than one hundred years. It is rare indeed that among the bustling, locomotive population of this country, an individual can be found, who can show such unequivocal proof of a fixed residence as has been shown by the plaintiff in this case. That he passed the winter preceding the election, in Philadelphia, was wholly unimportant; it did not change his residence, in law. In Story's Conflict of L. p. 46, it is said, that if a married man has two places of residence at different times of the year, that will be esteemed his domicile, which he himself selects, or describes or deems to be his home, or which appears to be the centre of his affairs, or where he votes, or exercises the rights and duties of a citizen. But again it is said, that the place where a married man's family resides, is generally to be deemed his domicile: but it is otherwise, if it be a place of temporary establishment for his family, or for transient objects only. See also, Somerville v. Somerville, 5 Ves. 750, 788, 789; Harvard College v. Gore, 5 Pick. 377.

**6 The place where a man is commorant, may perhaps be properly considered as prima facie, the place of his legal residence; this presmption however, may be easily overcome by proof of facts to the contrary. If a person leave his original residence, animo non revertendi, and adopt another (for a space of time, however brief, if it be done) animo manendi, his first residence is lost. But if in leaving his original residence, he does so, animo revertendi, such original residence continues in law notwithstanding the temporary absence of himself and family. Such is the uniform language of the books, as well as the clear conclusion of common sense.

If the principle adopted by the judges of election, be the true one, to wit: that a gentleman who, desiring to escape the seclusion of a country residence, spends the winter in Philadelphia with his family, cannot be considered as legally residing in New Jersey, during that time, let us carry the principle out, and see where it will lead us. The election laws of our sister states are substantially like our own in this respect. The voter must at least have been a resident for a specified time &c.: yet hundreds of the most intelligent and influential residents of the neighboring cities, are in the habit yearly of closing their city houses, *146 and retiring with their families to their respective country seats, that they may escape the dust and heat of the city during the summer months. Almost every part of New Jersey is dotted with these country seats of the citizen: and has it ever been supposed, that by spending the summer with us, they were disfranchised at home? Such a doctrine would make an immense class of persons, (whose influence and stake in the community as property holders, are greatest,) mere political vagrants.

But again, many of our Senators and Representatives in Congress, habitually close their houses at home and move with their families to Washington, during the winter. Some rent rooms, and others rent houses, and they remain there sometimes two thirds of the year without even a visit to their respective homes: and yet, has any man ever supposed that in the eye of the law, they were not residing in the state of New Jersey, all that time? What would one of the learned counsel of the defendants, in this very case, think of a challenge being interposed to his vote at the coming election, on the ground, that he had not resided in the state for one whole year prior thereto! And yet, if the judges of election were right in the plaintiff's case, I believe that in point of fact, there would be the same grounds for a challenge in his. There is no distinction made by the law or the statute in favor of those who are public officers, and leave their residences to attend upon public business. It is all left to depend upon the same general principle, that a man's legal residence is not changed where he leaves it for temporary purposes and transient objects, meaning to return when those purposes are answered and objects attained.

**7 It is for this reason, that the students of our colleges, the inmates of our law schools and medical universities, and hundreds of others who are scattered on land and sea, engaged for the time being, in the prosecution of some transient object, are considered in law, as residing at their original homes, although in point of fact, they may be living for the time being, elsewhere. Upon the same principle, the Supreme Court of New York decided, that a man who was a subject of Great Britain, was an absent deotor, a non-resident, within the meaning of their attachment act, although in point of fact, he was actually present within the state, at that time, meaning however, to leave it as *147 soon as some temporary business was settled. Munroe v. Allaire, 2 Caines' R. 318.

The proof offered before the judges of election, as to the intention of the plaintiff in leaving his country residence, and spending the winter in the city, was so clear as to put that, the all important question in such cases, beyond a doubt. Indeed, there was not a particle of evidence offered to gainsay it. It was admitted, that he had had a legal residence in the township of Ewing, where he offered his vote, that he left it in possession of his servants; himself visiting and directing the labor done on the farm attached to his mansion house, during the winter; meaning to return, and actually returning and taking possession of the same residence in the spring, and continuing to reside there up to this time. The case is so clear of all doubt, that I would not have considered myself called upon to prepare this opinion, had it not involved that right which is specially dear to every American citizen: a right, which more than any other, requires that courts, when compelled to adjudicate upon it, do it openly and upon public assignment of the grounds of their adjudication.

Judgment must be entered for the plaintiff, pursuant to the provisions of the case agreed upon.

CITED in State v. Ross, 3 Zab. 525-527; Bonnel v. Dunn, 4 Dutch. 155; State v. Casper, 7 Vr. 368; Leonard v. Stout, 7 Vr. 377; Coddington v. Coddington, 5 C. E. Gr. 265.