Hall v. Wake County Bd. of Elections, 37

• Decision Date: 15 March 1972
• Docket Number: No. 37,37
• Citation: 187 S.E.2d 52,280 N.C. 600
• Parties: Katherine Inez HALL v. WAKE COUNTY BOARD OF ELECTIONS.
• Court: North Carolina Supreme Court

Page 52

187 S.E.2d 52

280 N.C. 600

Katherine Inez HALL v. WAKE COUNTY BOARD OF ELECTIONS.

No. 37.

Supreme Court of North Carolina.

March 15, 1972.

Sanford, Cannon, Adams & McCullough, by Robert W. Spearman and John H. Parker, Raleigh, for plaintiff appellee.

Atty. Gen., Robert Morgan, Deputy Attys. Gen., James F. Bullock, and James L. Blackburn, and Asst. Atty. Gen., Christine Denson for defendant appellant.

SHARP, Justice:

Defendant took no exception to any finding of fact made by Judge Brewer. The only assignment of error is to the entry of judgment that 'plaintiff is a resident of Wake County and is, therefore, entitled to register and vote.' Thus, the facts found are binding upon this Court, and the only question presented is whether error of law appears on the fact of the record. Aberfoyle Manufacturing Co. v. Clayton, Acting Comr. of Revenue, 265 N.C. 165, 143 S.E.2d 113 (1965); 1 N.C. Index 2d Appeal and Error, § 26 (1967). Specifically, the question here is whether the facts found will support the legal conclusion that plaintiff has acquired a domicile in Raleigh, the place where she is attending college.

This controversy results from recent changes in the law altering the voting age and the age of majority. The twenty-sixth amendment to the United States Constitution, which became effective 5 July 1971, provides: 'The right of citizens of the United States, who are eighteen years of are or older, to vote shall not be denied or abridged by the United States or by any State on account of age.' In anticipation of the ratification of this amendment, on 17 June 1971, the General Assembly provided that upon its certification the age of majority was changed from twenty-one years to eighteen. G.S. §§ 48A--1, 48A--2 (Ch. 585, N.C.Sess.Laws (1971).)

Thus, eighteen-year-olds are now Sui juris and, if they possess the qualifications prescribed by law for all voters, are eligible to vote. Under N.C.Const. art. VI, § 2 (1970), 'any person who has resided in the State of North Carolina for one year and in the precinct, ward, or other election district for 30 days next preceding an election, and possesses the other qualifications set out in this article, shall be entitled to vote at any election held in this State.'

Since 1868 our Constitution has required a voter to be a person who has 'resided' in the State and in the precinct or ward for a specified time, and this Court has held 'without variation that residence within the purview of this constitutional provision is synonymous with domicile. . . .' Owens v. Chaplin, 228 N.C. 705, 708, 47 S.E.2d 12, 15 (1948), and cases cited therein. Accord, Baker v. Varser, 240 N.C. 260, 268, 82 S.E.2d 90 (1954). Residence as used in Article VI of the North Carolina Constitution of 1970 continues to mean domicile.

Precisely speaking, Residence and Domicile are not convertible terms. A person may have his residence in one place and his domicile in another. Residence simply indicates a person's actual place of abode, whether permanent or temporary. Domicile denotes one's permanent, established home as distinguished from a temporary, although actual, place of residence. When absent therefrom, it is the place to which he intends to return (animus revertendi); it is the place where he intends to remain permanently, or for an indefinite length of time, or until some unexpected event shall occur to induce him to leave (animus manendi). Two things must concur to constitute a domicile: First, residence; second, the intent to make the place of residence a home. Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29 (1960); Sheffield v. Walker, 231 N.C. 556, 58 S.E.2d 356 (1950); Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240 (1919); Wheeler v. Cobb, 75 N.C. 21 (1876); Horne v. Horne, 31 N.C. 99 (1848).

One who lives in a place for a temporary purpose with the design of leaving when that purpose has been accomplished is a 'mere sojourner.' Groves v. Comrs., 180 N.C. 568, 105 S.E. 172 (1920). He retains his 'original home with all its incidental privileges and rights.' Therefore, a residence for a specific purpose, 'as at summer or winter resorts, or to acquire an education, or some art or skill in which the Animus revertendi accompanies the whole period of absence,' effects no change of domicile. Hannon v. Grizzard, 89 N.C. 115, 120 (1883).

It is quite clear that residence, when used in the election law, means domicile. G.S. § 163--57, which defines residence for registration and voting, incorporates the case law laid down in the opinions cited above. It provides:

'All registrars and judges, in determining the residence of a person offering to register or vote, shall be governed by the following rules, so far as they may apply:

'(1) That place shall be considered the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.

'(2) A person shall not be considered to have lost his residence who leaves his home and goes into another state or county of this state, for temporary purposes only, with the intention of returning.

'(3) A person shall not be considered to have gained a residence in any county of this State, into which he comes for temporary purposes only, without the intention of making such county his permanent place of abode.

'(4) If a person removes to another state or county within this State, with the intention of making such state or county his permanent residence, he shall be considered to have lost his residence in the state or county from which he has removed.

'(5) If a person recoves to another state or county within this State, with the intention of remaining there an indefinite time and making such state or county his place of residence, he shall be considered to have lost his place of residence in this State or the county from which he has removed, notwithstanding he may entertain an intention to return at some future time.

'(6) If a person goes into another state or county, or into the District of Columbia, and while there exercises the right of a citizen by voting in an election, he shall be considered to have lost his residence in this State or county.

'(7) School teachers who remove to a county for the purpose of teaching in the schools of that county temporarily and with the intention or expectation of returning during vacation periods to live in the county in which their parents or other relatives reside, and who do not have the intention of becoming residents of the county to which they have moved to teach, for purposes of registration and voting shall be considered residents of the county in which their parents or other relatives reside.

'(8) If a person removes to the District of Columbia or other federal territory to engage in the government service, he shall not be considered to have lost his residence in this State during the period of such service unless he votes there, and the place at which he resided at the time of his removal shall be considered and held to be his place of residence.

'(9) If a person removes to a county to engage in the service of the State government, he shall not be considered to have lost his residence in the county from which he removed, unless he demonstrates a contrary intention.'

This Court has not heretofore decided a case directly involving the domicile of a student seeking to vote in the town to which he came for the purpose of enrolling in college. However, the question of a student's domicile will be determined by the following well-established rules of law, which are applicable to any situation in which it is necessary to locate an individual's domicile.

First: The question whether a student's voting residence is at the location of the college he is attending or where he lived before he entered college, is a question of fact which depends upon the circumstances of each individual's case. See In Re Will of Marks, 259 N.C. 326, 130 S.E.2d 673 (1963); 29 C.J.S. Elections § 22 (1965); annot., 98 A.L.R.2d 488 (1964); 8 Ore.L.Rev. 171 (1929). Domicile is a highly personal matter. The fact that one is a student in a university does not entitle him to vote where 'the university is situated, nor does it of itself prevent his voting there. He may vote at the seat of the university if he has his residence there and is otherwise qualified.' Annot., 37 A.L.R. 138, 139 (1925).

Second: An adult student may acquire a domicile at the place where his university or college is situated, if he regards the place as his home, or intends to stay there indefinitely, and has no intention of resuming his former home. If he goes to a college town merely as a student, intending to remain there only until his education is completed and does not change his intention, he does not acquire a domicile there. Baker v. Varser, Supra. See annot., 98 A.L.R.2d 488, 498 (1964). See 3 Geo.Wash.L.Rev. 121 (1934).

Third: The presumption is that a student who leaves his parents' home to enter college is not domiciled in the college town to which he goes. See 29 C.J.S. Elections § 22 (1965). However, this presumption is rebuttable. It is an inference of fact based on probabilities and 'the common experience of mankind' under the circumstances. Opinion of the Justices, 46 Mass. (5 Met.) 587 (1943). It stems from the following principles relating to domicile:

The law permits no individual to be without a domicile. At birth he takes the domicile of the person upon whom he is legally dependent. Hence, 'an unemancipated infant, being Non sui juris, cannot of his own volition select, acquire, or change his domicile.' Thayer v. Thayer, 187 N.C. 573, 574, 122 S.E. 307, 308 (1924); In Re Hall, 235 N.C. 697, 702, 71 S.E.2d 140, 143 (1952). A domicile, once acquired, is presumed to continue. It is never lost until a new one is established, and the burden of proof rests upon the person who alleges a change. Reynolds v. Cotton Mills, Supra; Hannon v. Grizzard, Supra; 25...