Harding v. Standard Oil Co.

Decision Date25 October 1910
Docket Number28,865.
Citation182 F. 421
PartiesHARDING v. STANDARD OIL CO. et al.
CourtU.S. District Court — Northern District of Illinois

William J. Ammen, for complainant.

Mayer Meyer, Austrian & Platt, for defendants.

SANBORN District Judge.

The removal petition was amended pursuant to order granting leave (170 F. 651), and an answer filed denying that the complainant was in fact when this suit was commenced, in October, 1907, a citizen of California, and not of Illinois as alleged in the amended petition. A large amount of testimony was taken on this special issue, much of it in open court. Defendants sustain the burden of proof.

Mr Harding, whose citizenship is in question, is over 80 years of age. He is a lawyer of marked ability. From his father he inherited a large amount of real estate in several counties in Illinois, other than Cook, in which the city of Chicago is situated, Winnebago, Lake, Montgomery, McDonough, Iroquois Douglas, Mercer, Peoria, Warren, and Henderson counties. Many years ago he located in Chicago, where he practiced law and acquired considerable real property, also becoming interested in the Firemen's Insurance Company and other business matters.

During the year 1889 his wife left him, and on February 3, 1890, filed her suit for separate maintenance in the circuit court for Cook county, Ill., resulting in a decree for separate maintenance and alimony July 26, 1897. The case was most vigorously litigated, especially as to the amount and payment of alimony. In its various stages it is reported in 40 Ill.App. 202; 79 Ill.App. 590, 621; 105 Ill.App. 366; 120 Ill.App. 389; 144 Ill. 588, 32 N.E. 206, 21 L.R.A. 310; 180 Ill. 481, 54 N.E. 587; 180 Ill. 592, 54 N.E. 604, and 205 Ill. 105, 68 N.E. 754. The last proceeding in court was March 27, 1905.

At the commencement of this proceeding Mr. Harding's home was 2536 Indiana avenue, Chicago. He continued to live there until May 15, 1895, when he claims to have removed to San Diego, Cal., and which he still claims as his residence and domicile. At this date he owned a large amount of real estate in Chicago, heavily incumbered, as well as the country property, was still interested in the insurance company, and was a party to a number of important lawsuits. He says, however, that he had reason to believe that his suit with his wife was practically terminated through a stipulation then recently offered by him to his wife, leaving only the amount of alimony in dispute, and that none of the other litigation would trouble him. He was not in good health and thought a change of his home to California would be beneficial. He therefore turned over his business office to his son, George F. Harding, Jr., gave him a power of attorney to attend to all his business, terminated his membership in all the Chicago clubs to which he belonged, except the Chicago Athletic Club, parted with all his horses and vehicles, gave up his political activities in Chicago, installed his daughter Beatrice in his house, gave his son authority to sign his name to checks on his bank account, and 'generally pulled up all my relations in Chicago, and they never have been restored in any way in any direction.'

Before stating the facts on which complainant bases his claim to citizenship in California, the law governing questions of citizenship and residence in the federal courts should, for the sake of clearness, be cited. It is insisted for Mr. Harding that he became a citizen of California in 1895, and, once having changed his domicile, it continues until the acquisition by him of another is clearly shown; and, although he has not been in California for nearly eight years, yet there is no proof that he has reacquired his former Illinois citizenship, having no home there, and spending no time there except when compelled to do so in litigation to which he is a party, pending there. It is further contended that, as the courts of California have held him to be a resident there, his citizenship is established, and the presumption of its continuance. It is necessary, therefore, to state the law as to citizenship or domicile and residence or inhabitancy, and then to recite the facts established by the evidence.

The words 'citizenship,' 'residence,' 'domicile,' and 'inhabitancy,' as used in federal statutes, have often been defined by the United States courts, with almost entire agreement; although the decision of a particular case may vary with its circumstances and the mental constitution of the judge. Chinese Tax Cases (C.C.) 14 F. 338, 344. 'Domicile' and 'citizenship' are substantially synonymous terms, in most cases. Collins v. Ashland (D.C.) 112 F. 175; Penfield v. Chesapeake, etc., Co., 134 U.S. 351, 10 Sup.Ct. 566, 33 L.Ed. 940,

where a person was domiciled in New York but resided in Missouri.

'There is a marked distinction between domicile and residence. The term 'residence' simply indicates the place of abode, whether permanent or temporary: 'domicile' denotes a fixed, permanent residence, to which, when absent, one has the intention of returning. ' Corel v. Chicago, etc., Co. (C.C.) 123 F. 452, 454.

In Mitchell v. United States, 21 Wall. 352 (22 L.Ed. 584), the court say:

"Domicile' has been thus defined: 'A residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.' By the term 'domicile,' in its ordinary acceptation, is meant the place where a person lives and has his home. A place where a person lives is taken to be his domicile until facts adduced establish the contrary. * * * A domicile, once acquired, is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation. To constitute the new domicile two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. These principles are axiomatic in the law upon the subject.'
'When there has been an actual removal with intent to make a permanent residence, and the acts of the party correspond with the purpose, the change of domicile is completed, and the law forces upon him the character of a citizen of the state where he has chosen his domicile, although he may have formerly declared that he nevertheless considered himself a citizen of the state he has left. ' Pacific, etc., Co. v. Tompkins, 101 F. 539, 41 C.C.A. 488.
'Citizenship' implies much more than 'residence'. It carries the idea of connection or identification with the state, and a participation in its functions. Daniel, J., in Dred Scott v. Sandford, 19 How. 476, 15 L.Ed. 691. It applies to a person possessing social and political rights, and sustaining social, political, and moral obligations. Daniel, J., dissenting, in Rundle v. Delaware, etc., Co., 14 How. 80, 14 L.Ed. 335. In the Constitution and laws of the United States the term is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a state or of the United States. Baldwin v. Franks, 120 U.S. 678, 7 Sup.Ct. 656, 30 L.Ed. 766. A person may be a citizen of a state but not of the United States; as, an alien who has declared his intention to become a citizen, and who is by local law entitled to vote in the state of his residence, and there exercise all other local functions of local citizenship, such as holding office, right to poor relief, etc., but who is not a citizen of the United States. Taney, C.J., in Dred Scott v. Sandford, 19 How. 405, 15 L.Ed. 691; Slaughterhouse Cases, 16 Wall. 74, 21 L.Ed. 394. An allegation of residence in a state does not show citizenship therein. Continental Insurance Co. v. Rhoads, 119 U.S. 237, 7 Sup.Ct. 193, 30 L.Ed. 380; Everhart v. Huntsville College, 120 U.S. 223, 7 Sup.Ct. 555, 30 L.Ed. 623; Denny v. Pironi, 141 U.S. 121, 11 Sup.Ct. 966, 35 L.Ed. 657; Shaw v. Quincy Min. Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768; Bicycle Stepladder Co. v. Gordon (C.C.) 57 F. 529 (Jenkins, C.J.); De La Montanya v. De La Montanya (D.C.) 158 F. 117. Change of citizenship is not shown unless residence in the old state is in good faith given up, and permanent residence in the new one acquired. Chicago, etc., Co. v. Ohle, 117 U.S. 123, 6 Sup.Ct. 632, 29 L.Ed. 837.

The distinction between 'citizenship' and 'residence' is illustrated by the cases cited by the Supreme Court in Galveston, etc., Co. v. Gonzales, 151 U.S. 496, 14 Sup.Ct. 401, 38 L.Ed. 248. Picquet v. Swan, 5 Mason, 35, Fed. Cas. No. 11,134, is one of them, in which Judge Story held that a citizen of Massachusetts, residing in France, was not an inhabitant of the United States. Judge Story said:

'A person might be an inhabitant without being a citizen; and a citizen might not be an inhabitant, though he retain his citizenship. Alienage or citizenship is one thing; and inhabitancy, by which I understand local residence, animo manendi, quite another.'

Another of the cases cited approvingly is Jopp v. Wood, 34 Beavan, 88, where 25 years' absence and doing business in India did not change the domicile of a Scotchman. Another is In re Capdeville, 2 H. & C. 985, as to a Frenchman who had resided and done business in England 29 years without losing his French domicile.

'Citizenship as used in the law under consideration (the jurisdiction statute of 1875), means residence with intention of remaining permanently at that...

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