Hill v. Niblett
| Decision Date | 11 November 1936 |
| Docket Number | 11. |
| Citation | 187 A. 869,171 Md. 653 |
| Parties | HILL v. NIBLETT ET AL. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; George A. Solter Judge.
Action by John Philip Hill against John H. Niblett and others constituting the Board of Registry of the Ninth Precinct of the Fourth Ward of Baltimore City. From an order dismissing the petition, John Philip Hill appeals.
Order affirmed.
Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.
John Philip Hill, of Baltimore, in pro. per.
Willis R. Jones, of Baltimore, for John P. Schultheis.
Charles T. Le Viness, 3d, Asst. Atty. Gen., for Board of Registry.
John P Schultheis is a voter, registered from the Ninth Precinct of the Fourth Ward of Baltimore City, professing to reside at No. 635 West Fayette street in that precinct. His wife and family reside at 140 North East avenue in the Twentieth Precinct of the Sixth Ward, in that city.
On October 7, 1936, John Philip Hill, the appellant, filed with the Board of Registry of the Ninth Precinct of the Fourth Ward a sworn declaration that Schultheis was not a qualified voter in that precinct, that he did not reside at No. 635 West Fayette street, but that he did reside at No. 140 North East avenue, in that city.
On Tuesday, October 13, 1936, he appeared before the board and offered evidence in support of the declaration, but the board, after hearing evidence for and against the petition, refused to erase Schultheis' name from the registration books. Hill then on October 14, 1936, commenced this action in the Superior Court of Baltimore City for the purpose of having that court review the decision of the Board of Registry. That court after testimony and a hearing dismissed the petition. To that ruling the petitioner excepted, and from it he has taken this appeal.
The question presented by the appeal is whether, within the meaning of the election laws, Schultheis is a resident of the Ninth Precinct of the Fourth Ward of Baltimore City. The appellant contends that he is not because, he says, Schultheis' legal residence is in the precinct where his wife and family reside. Schultheis contends he is, because, he says, he not only is engaged in a business at 635 West Fayette street, but actually resides there, and that he may, under any proper construction of the election laws, have a legal residence apart from his wife and family.
Without stopping to analyze it in detail, it is enough to say that the evidence establishes the facts which follow:
Schultheis, is and for many years has been a saloon keeper. He formerly conducted a saloon at 22 Pearl street, which is also in the Ninth Precinct of the Fourth Ward, in which he has been a registered voter for fourteen or fifteen years. Some three years ago he left the Pearl street place and opened a saloon and restaurant at 635 West Fayette street. The license for the Fayette street saloon was at first in his name, but he later transferred it to his son-in-law, Raymond J. Grund, although he continued to manage the business. Later the son-in-law retired from it, and Schultheis resumed full control although the license was renewed in the name of Grund.
Notwithstanding the fact that he maintained a home for his wife and family on North East avenue, Schultheis claims that he himself resided first at the Pearl street saloon when he was in business there, and later at the Fayette street place when he removed from Pearl street. He had a room over the Fayette street saloon, kept his clothes either there or at a tailor's place "across the street," he slept there, he was "there more than any where else," and although he spent a couple of evenings a week with his family, he regarded it as his home. He did that, he said, because the nature of his business kept him up late at night, and "rather than go home" he would "stay up there," he had been registered from that precinct for many years, and the precinct itself is in the same legislative and congressional district and councilmanic ward as the home of his wife and family.
Upon these facts it cannot be said as a matter of law that Schultheis was illegally registered as a voter in the Ninth Precinct of the Fourth Ward of Baltimore City. Apart from the fact that his wife and family reside in another precinct, there could not well be any doubt of the soundness of that conclusion. But while it is presumed ordinarily that the domicile of a married man is at the place where his wife and family reside (19 C.J. 433), that presumption is rebuttable (Ibid), for there is no principle of law which prevents a husband from having a legal residence apart from his wife and family.
Although the analogy is somewhat remote, McLane v. Hobbs, 74 Md. 166, 21 A. 708, is consistent with the view that a married man may have a residence different from that of his wife and family. In that case Hobbs, a resident of Washington, D. C., bought a house in Frederick, Md., and established his wife and children there. He himself continued to work in Washington, and lived there from Monday morning to Saturday evening in each week. He would return to his family in Frederick on each Saturday evening and leave again for Washington on the following Monday morning. After that had gone on for something over two years, he applied for registration in Frederick. It was not disputed that his wife and children were permanently domiciled in Frederick, but the court decided the case not on the ground that the husband and wife could not have separate legal residences, but on the ground that Frederick was his actual home, that he intended to reside there permanently, and that he had no other home.
In the Restatement of the Law, American Law Institute on Conflict of Laws, it is stated: "If a wife lives apart from her husband without being guilty of desertion according to the law of the state which was their domicil at the time of separation, she can have a separate domicil." Section 28. In comment b and c to that section it is stated:
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