Collins v. City of Ashland

• Decision Date: 14 December 1901
• Parties: COLLINS v. CITY OF ASHLAND.
• Court: U.S. District Court — Eastern District of Kentucky

112 F. 175

COLLINS v. CITY OF ASHLAND.

United States District Court, E.D. Kentucky.

December 14, 1901

D. W Steele, Jr., for plaintiff.

Proctor K. Malin, for defendant.

COCHRAN District Judge.

This action was brought on the 18th day of January, 1901, by the plaintiff, Edward T. Collins, who alleges in his petition that he was then a citizen and resident of the county of Lawrence and state of Ohio, against the city of Ashland, a municipal corporation of this state, to recover damages for personal injuries. The defendant has filed a plea to the jurisdiction of the court, in which it denies that the plaintiff, at the time this suit was brought, was a citizen or resident of the state of Ohio, and alleges that he was at that time, and long prior thereto had been, a citizen and resident of the state of Kentucky. The plaintiff has filed a reply to this plea, denying the allegation that he was then a citizen and resident of the state of Kentucky. This plea has been submitted to the court for trial upon the pleadings, and upon proof taken by depositions. From that proof this state of facts appears: In September or October 1900, the plaintiff, with his family, was residing in Perry township, Lawrence county, Ohio, upon a place containing about five acres, which had previously purchased a year or so before, and where he had been continuously residing from the time of his purchase. At that time he moved with his family and household goods to the city of Ashland, Ky., and he has continued to reside there ever since. He has been employed during that time at the Clinton Firebrick Works, located in that city. He still owns the place in Ohio before referred to. The plaintiff seems to have been born in the state of Ohio, and to have lived there ever since, except for the time above mentioned, for a portion of time in the year 1894, and from November, 1896, to June, 1898, during which two earlier periods he resided in the city of Ashland with his family and was employed there since September or October, 1900. During the period from November, 1896, to June, 1898, while living in Ashland, he paid a poll tax to the city. He is past 30 years of age, and has always voted in Lawrence county Ohio. He voted there at the November election, 1900, and at the November election, 1899. He did not vote in November, 1901. He has never voted in Ashland, Ky., or at any other place than in Lawrence county, Ohio. He testifies positively and distinctly that he has all his life claimed Lawrence county, Ohio, as his home, and that his residence in the city of Ashland at the time above stated was merely temporary. He states that when he moved with his family to Ashland in September or October, 1900, he then had the intention of returning in the spring to Lawrence county, Ohio; that he did not return in accordance with his intention, because the tent to whom he had rented the place in the meantime until the 1st of March, 1901, was not willing to give up possession, but that really he would not have returned at that time anyhow, because he owed some debts in the city of Ashland, and he feared that, if he attempted to move away, his creditors might attach his goods; and that it is his present intention to return there next spring. He states that he paid the poll tax above referred to because he thought he was compelled to do so.

The question in this case is as to the citizenship of the plaintiff at the time this suit was brought, in January, 1901. It is entirely immaterial that the plaintiff may have acquired citizenship in Kentucky since, on account of what may have transpired since; for it is well settled that, if diverse citizenship exists at the time suit is brought, jurisdiction will not be ousted by the fact that it is done away with after suit is brought. This is so decided in Salt Co. v. Brigel, 30 C.C.A. 415, 86 F. 818, and in Louisville, N.A. & C.R. Co. v. Louisville Trust Co., 174 U.S. 552, 19 Sup.Ct. 817, 43 L.Ed. 1081. The sole value, therefore, of what has transpired since this suit was brought, is its bearing, if any, upon the question of citizenship at that time. Citizenship depends upon domicile, and, as domicile and residence are two different things, it follows that citizenship is not determined by residence are two different things, it follows that citizenship is not determined by residence. In the case of Sharon v. Hill (C.C.) 26 F. 337, Deady, J., said: &5&"Citizenship' and 'residence,' as has often been declared by the courts, are not convertible terms.'

And in the case of McDonald v. Flour Mills' Co. (C.C.) 31 F. 577, Deady, J., said: 'A person may be a citizen of one state or country, and reside for the time being in another.'

The burden of showing that plaintiff's domicile and consequent citizenship was in Kentucky, and not in Ohio, as alleged in the petition, was on defendant. In the case of Association v. Sparks, 28 C.C.A. 399, 83 F. 225, Riner, J., said:

'It is the well-settled rule in the federal courts that when the plaintiff's petition, as in this case, sets out the necessary diverse citizenship of the parties, the burden of both allegation and proof rests upon the party who seeks to defeat it.'

But though the ultimate fact to be determined is domicile, and consequent citizenship, and not residence, yet the latter face is evidential of the former. It is prima facie evidence of it, and, nothing else appearing, shifts the burden of evidence to the plaintiff. In the case of Anderson v. Watts. 138 U.S. 694, 11 Sup.Ct. 449, 34 L.Ed. 1078, Mr. Chief Justice Fuller said:

'The place where a person lives is taken to be his domicile until facts adduced establish the contrary.' And in the case of McDonald v. Flour Mills' Co., supra, Deady, J., said:

'And while residence, as a fact, is prima facie evidence of citizenship, it is not conclusive of the question.'

The burden of evidence was therefore on the plaintiff to show that his domicile, and consequent citizenship, was not the same as his residence, at the time suit was brought. This he could do, as it is sometimes put, by showing that it was not his intention when he changed his residence from Ohio to Kentucky, in September or October, 1900, or whilst he resided in the latter state, up to the time the suit was brought, to make that his permanent home, but...