State ex rel. Goldsworthy v. Aldrich

• Decision Date: 31 May 1883
• Citation: 14 R.I. 171
• Parties: STATE ex relation JOHN E. GOLDSWORTHY v. WILLIAM D. ALDRICH.
• Court: Rhode Island Supreme Court

14 R.I. 171

STATE ex relation JOHN E. GOLDSWORTHY v. WILLIAM D. ALDRICH.

Supreme Court of Rhode Island.

May 31, 1883

In the Constitution of Rhode Island, article 2, sections 1 and 2 the word " residence" means domicil or home, not the place of actual habitancy.

Hence when a qualified citizen had his domicil in the town of L. but for temporary purposes was residing in another town:

Held, that he had the right to vote in the town of L.

Domicil is not changed by mere change of habitancy without an intent to change the domicil.

QUO WARRANTO. On demurrer to the answer.

Stephen A. Cooke, Jun., for relator.

Charles H. Parkhurst & John P. Gregory, for respondent.

DURFEE C. J.

This is an information in the nature of a writ of quo warranto to oust the respondent from the office of town councilman of the town of Lincoln, on the ground that when elected, to wit: on June 5, 1882, he was not eligible to the office, under the Constitution, article 9, section 1,^[1] because he was not then a qualified elector to such office. The information alleges as a reason why he was not a qualified elector, that he did not reside in the town of Lincoln, but, on the contrary, resided in the city of Providence, and had had his residence and home in said city for more than five years next before said fifth of June, 1882. The answer, which is demurred to, alleges that the respondent was born in the town of Smithfield in 1833, and lived there continuously until 1871, when a portion of the town, including his residence and home, was set off by the General Assembly as and for the town of Lincoln. The answer also alleges that the respondent was a qualified elector of the town of Lincoln at the time of its incorporation, and that he claims to have remained such ever since then; that his name has been on the voting list in said town ever since then; that he has paid taxes assessed against him by said town on his real estate since 1871, and on personal property since 1880, and that he has never been assessed for personal estate in any other town or city. The answer also alleges that the respondent has never had his name on the voting list, nor attempted to exercise any political rights in any other town or city; and that on the contrary he has voted in the town of Lincoln every year since 1871, and that in 1880, and again in 1881, he was elected a town councilman of said town, and reë lected June 5, 1882, his name being then on the voting list. The answer, however, admits that in 1875 the respondent, being advised that the health of his wife required a change, removed her to the city of Providence with a portion, about two thirds, of his furniture, and there furnished a tenement of four rooms for their convenience, hiring the same by the month; that there his wife immediately put herself under medical treatment, being so feeble that he remained with her at night and employed an attendant to be with her by day; that he went to New York with her for a month for medical treatment, and during the summer months of each year visited various places for the benefit of her health, and that her illness was so protracted that he was unable to return with her to Lincoln until June 5, 1882. But the answer further alleges that, during all this time, the respondent, owning a dwelling house in the town of Lincoln, let only a part of it, and reserved the other part, five rooms, for his own use, keeping there the furniture not carried to Providence, so that he could resume house keeping there whenever his wife should be able to return; that he is a land surveyor, and has had his only place of business in the yard of his house in Lincoln for eleven years last past; that during the illness of his wife in Providence he continued to carry on his business in Lincoln, going there in the morning and returning at night; that he kept and cultivated his garden in Lincoln; that he went to Providence to live, temporarily, solely for the sake of his wife, intending to return as soon as she was well enough to return; that he did return June 5, 1882, and that he never had any intention or thought of changing his residence and home from Lincoln to any other town or city. The answer contains other allegations, which, being merely incidental or confirmatory, we deem it unnecessary to recite. We think it is clear from the answer that the respondent, while he changed his place of actual abode, did so simply for a temporary purpose without intending to change his domicil, and that he therefore did not change it, since a man does not acquire a new domicil, without an intent to do it, by a mere change of habitation. White v. Brown, 1 Wall. C. C. 217, 262, 263; Hodgson v. De Beauchesne, 12 Moore P. C. C. 285; Harvard College v. Gore, 5 Pick. 369; Horne v. Horne, 9 Ind. 99; Folger & Son v. Slaughter et als. 19 La. An. 323; Udny v. Udny, L. R. 1 Scotch & Div. App. 441, 448; also 4 Amer. Law Review, 678.

The question is, whether the respondent, under the circumstances lost the right to vote in the town of Lincoln which he had, beyond controversy, previous to 1875. The Constitution creates two classes of electors.^[1] The first class includes " every male citizen of the United States, of the age of twenty one years, who has had his residence and home in this State for one year, and in the town or city in which he may claim a right to vote, six months next preceding the time of voting," provided that he also has the freehold...