State ex rel. Hannon v. Grizzard

• Decision Date: 31 October 1883
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. JOHN H. HANNON v. JAMES M. GRIZZARD.

89 N.C. 115

STATE ex rel. JOHN H. HANNON

v.JAMES M. GRIZZARD.

Supreme Court of North Carolina.

October Term, 1883.

CIVIL

ACTION in nature of quo warranto tried at Spring Term, 1883, of HALIFAX Superior Court, before Philips, J.

At a regular election held in November, 1882, in and for the county of Halifax, the relator was chosen by a majority of the votes cast to the office of register of deeds, and it was so declared by the county canvassers. At the meeting of the board of county commissioners next ensuing, he applied for admission to said office, offering to take the oath and give the bond prescribed by law. The board refused the application, upon the ground of the relator's want of the qualifications required by the constitution in that, he had not “resided in the state twelve months next preceding the election, and ninety days in the county.” The board thereupon deeming the office vacant, proceeded to fill it by the appointment of the defendant, who took the oath, gave the bond and entered upon the execution of his official duties.

The present action, under the provisions of the Code, substituted in place of the former procedure by quo warranto, was then instituted, and is prosecuted for the ejection of the incumbent, and in order to his own induction on complying with the requirements of law.

On the trial of the cause, the only issue submitted to the jury was in these words: “Was the relator a resident of this state and county on the 7th day of November, 1882, and had he been such resident for the twelve months preceding?” and the response, under the instructions of the court, was in the affirmative.

The relator examined on his own behalf, and the only witness introduced, testified in substance as follows: I was born on November 25th, 1850, in Halifax, and have always lived there. In 1875, I accepted the appointment of watchman under the treasury department of the United States at Washington City, before which time, except for a short interval, I had never been out of the state, and went there to perform its duties. I continued thereafter to pay my poll-tax in the county, and to vote there, as before. I so voted in 1876 and 1878, and proposed to vote in 1880, but the vote was challenged, and before the matter was decided, the time for giving in ballots by law expired, and the vote was not given. In 1882, I again voted, after a challenge. I have uniformly paid my poll-tax, and was never absent from the county for twelve months at one time, always spending here the one month's vacation from service annually allowed by the department.

The plaintiff's counsel proposed to inquire whether the witness, in accepting employment at Washington, or afterwards, intended to abandon his home in this state. To this the defendant made objection, which was overruled and the witness permitted to say: “I did not. I considered North Carolina my home. I have never offered to vote or paid poll-tax elsewhere. The house in Halifax occupied by my step-mother was provided by me for her, before and since my father's death. It is rented, but I own real estate in the county.”

The cross-examination developed the foregoing testimony more in detail, but without any substantial repugnance: and the witness added that from July to October 14, 1875, he was employed in the navy-yard near Norfolk, and proceeded thence to Washington, where he remained in the government service, interrupted by occasional returns to Halifax, as before shown, until the last of December, 1882, when his employment ceased, and early in the next month he returned to Halifax.

The defendant asked an instruction to the effect that the plaintiff had not shown an actual bona fide residence in the state, and that being a single man, sleeping and boarding at Washington, during his stay and while acting as watchman, he was not meanwhile a resident of the state within the meaning of the constitution, and that, accepting his statement as correct, the jury should respond to the issue in the negative. This instruction was denied, and His Honor proceeded to charge thus:

A person's residence is his place of domicil; the place where his habitation is fixed, without any intention of removing therefrom. Residence, as used in the constitution, means a domicil in the county and state. As long as a party has the animus revertendi, no length of residence elsewhere will change the domicil. In order to such change there must not only be an act, but a concurrent intention to make it. If the jury believe that the relator was born in Halifax in 1850, and there had his fixed abode until 1875, when he accepted service under the department at Washington, and went there to enter upon it, and remained for the period mentioned, returning once or twice a year on leave of absence, voted and paid taxes to the county and town authorities until January, 1883 (erroneously written, as we suppose, 1882), when he came back to the county, where he has since remained, with no intention of abandoning his home in Halifax or making a new home in Washington, then the issue should be found in favor of the relator.

To the refusal of the court to give the instructions asked, and to those given instead, the defendant excepts.

The jury retired on Tuesday night of the first week of the term to consider their verdict, and twice came into court for further directions, and once to announce their disagreement.

Again, on Thursday, they came into court to announce their inability to agree upon a finding and to ask for a discharge, one of the jurors stating that he had been sick and feeble and the jury were in an uncomfortable room, but that he could stand it as long as anybody. Thereupon His Honor remarked: “I do not know what is the cause of your failure to find a verdict in this case, nor do I care to know. But if your failure is a wilful disregard of my instructions, you ought not to ask any favor of the court. I will state that the court expires by limitation on Saturday night week at 12 o'clock. I directed the sheriff to feed you and to move you to a room where you can have comfortable fire. He has done so. I will still do anything in my power to render you comfortable.”

One of the jurors stated that the jury wanted to see the tax list, whereupon a discussion sprung up between the opposing counsel, the plaintiff's counsel consenting...