APPENDIX II.

CITIZENSHIP OF THE STATES OF THE UNION.

DEFINITIONS OF CITIZENSHIP OF A STATE.

"A citizen of the United States residing in any State of the Union is a citizen of that State." Marshall, C. J., Gassies v. Ballon (1832), 6 Pet., 761, 762. This principle is confirmed by Article XIV of the amendments to the Constitution in the declaration that all persons born or naturalized in the United States and subject to the jurisdiction thereof are "citizens of the United States and of the State wherein they reside." As regards citizenship of a particular State this definition is incorporated in the constitutions and statutes of various of the States. In Kentucky (Stats., by Carroll (1903), sec. 332) Maine (Rev. Stats. (1903), ch. 5, sec. 1), and West Virginia. (Const., Art. II, sec. 3), it is incorporated in similar phraseology. In Georgia (Const., Art. I, sec. 1, par. 25), Massachusetts (Rev. Laws (1902), Ch. I, sec. 1), and Mississippi (Const., Art. III, sec. 8), citizens of the United States resident or domiciled in the State are declared to be citizens thereof.

all

In California (Polit. Code, sec. 51), as also in North Dakota (Polit. Code, sec. 11), all persons born in the State and residing therein, except the children of transient aliens and of alien public ministers and consuls, and all persons born out of the State who are citizens of the United States and residing within the State, are declared to be citizens of the State. Save the clause expressly excepting from citizenship children of public ministers and consuls born in the State, the same provision is found in the laws of Montana (Polit. Code, sec. 71). În Vermont citizens of the United States and persons who have become citizens of the State by virtue of the constitution or laws are, while residing in the State, citizens thereof. (Stats. (1894), sec. 60.) In Virginia it is declared that all persons born in the State, all persons born in any other State of the Union, who may be or become residents of the State; all aliens naturalized under the laws of the United States who may be or become residents of the State; all persons who have obtained a right to citizenship under former laws; and all children, wherever born, whose father, or if he be dead, whose mother, shall be a citizen of the State at the time of the birth of such children, shall be deemed citizens of the State (Code (1904, by Pollard), sec. 39). See Exhibit A.

RESIDENCE.

A person may, under the fourteenth amendment, be a citizen of the United States without being a citizen of a particular State. An important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, while

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it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. Miller, J., Slaughterhouse cases, 16 Wall., 36, 74. By Article III, sec. 2, of the Constitution, the judicial power of the United States is extended to controversies between citizens of different States." The test of citizenship for the purpose of Federal jurisdiction under this section is domicil, which implies a fixed home and abode at the place of residence, with the animus manendi. Poppenhauser v. Comb. Co. (C. C.), 14 Fed. Rep., 707; Sharon v. Hill (C. C.), 26 Fed. Rep., 337; McDonald v. Flour Mills Co. (C. C.), 31 Fed. Rep., 577; Nichols v Nichols (C. C.), 92 Fed. Rep., 1; Haskell v. Bailey (C. C. A.), 63 Fed. Rep., 873; Collins v. City of Ashland (D. C.), 112 Fed. Rep., 175; Eisele v. Oddie (C. C.), 128 Fed. Rep., 941. It is essential that the citizenship of the parties, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record; and the mere averment that a party is a resident of, or resides in, a particular State is not an averment of citizenship in that State for the purposes of jurisdiction. Parker . Overman, 18 How., 137; Robertson . Cease, 97 U. S., 646; Continental Ins. Co. v. Rhoads, 119 U. S., 237; Everhart . Huntsville College, 120 U. S., 223; Menard . Goggan, 121 U. S., 253; Timmons . Elyton Land Co., 139 U. S., 378; Denny v. Pironi, 141 U. S., 121; Wolfe . Hartford L. & A. Ins. Co., 148 U. S., 389; Cooper . Newell, 155 U. S., 532; Steigleder . McQuesten, 198 U. S., 141, 143.

"The place where a person lives is taken to be his domicil until facts adduced establish the contrary, and a domicil when once acquired is presumed to continue until it is shown to have been changed." Fuller, C. J., Anderson . Watt (1891), 138 U. S., 694, 706. "The intention and the act must concur in order to effect such a change of domicil as constitutes a change of citizenship." Harlan, J., Morris . Gilmer (1889), 129 U. S., 315, 328. "There must be an actual, not pretended, change of domicil; in other words, the removal must be a real one, animo manendi, and not merely ostensible.'" Id. citing Case . Clarke, 5 Mason, 70. "Among the circumstances usually relied upon to establish the animus manendi are: Declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business." Swayne, J., Mitchell . United States (1874), 21 Wall., 350, 353.

7'.

The rules of the several States determining what constitutes a residence sufficient to establish citizenship are chiefly to be found in the decisions of the courts. As codified in California (Polit. Code, sec. 52), Montana (Polit. Code, sec. 72), and North Dakota (Polit. Code, sec. 12), they are as follows: Every person has, in law, a residence. It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose. There can be only one residence. A residence can not be lost until another is gained. The residence of the father during his life, and after his death the residence of the mother while she remains unmarried, is the residence of the unmarried minor children. The residence of the husband is presumptively [in California the word "presumptively" does not appear] the residence of the wife. The residence of an unmarried minor who has a parent living can not be changed by either his own act

or that of his guardian. Residence can be changed only by the union of act and intent.

*

*

"Two considerations must be kept steadily in view, and these are, 1, that every person must have a domicil somewhere; and 2, that a man can have only one domicil for one purpose at one and the same time. Every one has a domicil of origin, which he retains until he acquires another, and the one thus acquired is in like manner retained." Shaw, C. J., Abington v. North Bridgewater (1839), 23 Pick., 170, 177. "In regard to questions of citizenship, and the disposition of property after death, every person must have a domicil. For every one is presumed to be a subject of some government while living, and the law of some country must control the disposition of his property upon his decease." Davis, J., Gilman v. Gilman (1863), 52 Me., 165, 174. “A man may have more than one place of residence, but he can have but one domicil, and can hold citizenship in but one State." Beck, J., Savage v. Scott (1876), 45 Io., 130, 133. "Actual residence, that is, personal presence in a place, is one circumstance to determine the domicil, or the fact of being an inhabitant; but it is far from being conclusive." Shaw, C. J., Sears v. City of Boston (1840), 1 Met., 250, 251.

"The habitation fixed in any place, without any present intention of removing therefrom, is the domicile." Parker, J., Putnam v. Johnson (1813) 10 Mass., 488, 501. The factum and the animus must concur in order to establish a domicil. Harvard College v. Gore, 5 Pick., 370. The latter may be inferred from proof of the former. But evidence of a mere intent can not establish the fact of domicil." Bigelow, J. (1856), Holmes . Greene, 7 Gray, 299, 301. "Change of domicil consists of an act done, with an intent. The act is an actual change of residence. The intent to effect the change must be to acquire a new domicil, either permanent in purpose or of indefinite duration." Stone, C. J., Young . Pollak (1888), 85 Ala., 439, 444; Caldwell v. Pollak (1890), 91 Ala., 353, 357. "Residence being a visible fact is not usually in doubt. The intention to remain is not so easily proved. Both must concur in order to establish a domicil. * * * And, as both are known to be requisite in order to subject one to taxation or to give him the right of suffrage, any resident who submits to the one or claims the other may be presumed to have such intention." Davis, J., Gilman . Gilman (1863), 52 Me., 165, 177. See also Thomas v. Warren (1895), 83 Md., 14, 20. "The question what constitutes domicil is mainly a question of fact, and the element of intention enters into it. Personal absence for a while does not necessarily change one's domicil, and personal presence in a place for a somewhat prolonged period does not necessarily establish domicile there." Allen, J., Olivieri . Atkinson (1897), 168 Mass., 28, 29. One may acquire a domicil by the residence of a day, if to the fact of residence be superadded the requisite intention. Littlefield v. Brooks, 50 Me., 475; Parsons v. Bangor, 61 Me., 457; Stockton v. Staples, 66 Me., 197. "An absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment." Scholfield, J., Kreitz v. Behrensmeyer (1888), 125 Ill., 141, 195. "A temporary residence does not change its character by lapse of time." Park, J., Easterly v. Goodwin (1868), 35 Conn., 279, 286. "A man who has a domicile in Indiana.

does not lose it by going to Colorado and engaging in business there, nor by forming an intention that he will ultimately make that his residence; an intention to change residence at some future time is not a present change of residence." Bicknell, C. C., Astley v. Capron (1883), 89 Ind., 167, 177.

Evidence that a person had transacted business in another State for two years is insufficient to show that a domicile has been established in the absence of declarations of such an intention or evidence of the exercise of political rights, payment of personal taxes, or selection of a place of residence or business. Tuttle . Wood (1902), 115 Iowa, 507. Continuous, uninterrupted declarations, accompanied by the fact of residence, the removal of personal property, and the exercise of political rights establish a change of domicil. Marks v. Germania Savings Bank (1903), 110 La., 659. For the various indicia of the animus manendi, see American Notes, by J. B. Moore, in Dicey on the Conflict of Laws, page 165; and for the application of the rules of domicil in State courts see brief digests in 48 American State Reports, 711 note; 59 American Decisions, 111 note; 32 id., 427 note; 2 Lawyers' Reports, Annotated, 203 note, and 13 id., 161

note.

RELINQUISHMENT OF CITIZENSHIP.

The right to relinquish citizenship of one State by acquiring it in another is recognized in the rules of domicile. "Allegiance to the State may be renounced by a change of residence." California, Polit. Code, sec. 56; Montana, Polit. Code, sec. 82; North Dakota, Polit. Code, sec. 15. In the statutes of Virginia is found the following provision: "Whenever a citizen of this State, by deed in writing, executed in the presence of and subscribed by two witnesses, and by them proved in the court of the county or corporation where he resides, or by open verbal declaration, made in such court and entered of record, shall declare that he relinquishes the character of a citizen of this State, and shall depart out of the same, such person shall, from the time of such departure, be considered as having exercised his right of expatriation, so far as regards this State, and shall thenceforth be deemed no citizen thereof." It is further provided that when any "citizen of this State, being twenty-one years of age, shall reside elsewhere, and in good faith become the citizen of some other State of this Union, or the citizen or subject of a foreign state or sovereign, he shall not, while the citizen of another State, or the citizen or subject of a foreign state or sovereign, be deemed a citizen of this State." But no such relinquishment of citizenship can be accomplished while the United States is at war with a foreign power. (Code (1904 by Pollard), secs. 40-42.) These provisions are found in substantially the same terms in the statutes of Kentucky (Stats., by Carroll (1903), sec. 333.) The statutes of Georgia likewise contain an express declaration on the right of expatriation with a view to become a citizen of another State or of a foreign power. (Civil Code (1895), secs. 1805-7.)

In the Civil Code (art. 46) of Louisiana it is provided that a "voluntary absence of two years from the State, or the acquisition of residence in any other State of this Union or elsewhere, shall forfeit a domicile within this State." It has been held that civil as well as political domicil is forfeited by this voluntary absence. Interdic

tion of Dumas (1880), 32 La. Ann., 679. The principle that a native domicil, in case the new domicil has been acquired merely by residence without a renunciation of the original allegiance, reverts as soon as the person begins to execute an intention of returning, i. e., from the time that he puts himself in motion bona fide to quit the country sine animo revertendi, has no application as between the States of the Union where both the native and acquired domicil are under the same national jurisdiction. Park, J., First National Bank . Balcom (1868), 35 Conn., 351, 357.

ELECTORS.

It was said by Mr. Justice McLean, in Shelton v. Tiffin (1848), 6 How., 163, 185, that "on a change of domicil from one State to another, citizenship may depend upon the intention of the individual. But this intention may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is conclusive on the subject; but acquiring a right of suffrage, accompanied by acts which show a permanent location, unexplained, may be sufficient." Minimum periods are prescribed by the States during which a person must have resided therein to be entitled to exercise the privilege of the elective franchise. In Arkansas, Indiana, Kansas, Missouri, Nebraska, Ore

a See also opinion of Mr. Justice Curtis in Scott v. Sandford, 19 How., 393, 581. That voting is not conclusive as to domicil, see the leading case of Easterly r. Goodwin (1868), 35 Conn., 279.

Alabama, 2 years, Const. (1901), Art. VIII, sec. 178; Arkansas, 12 months, Const., Art. XXI, as amended (1893); California, 1 year, Const., Art. II, sec. 1, as amended (1894); Colorado, 12 months, Const., Art. VII, as amended (1902); Connecticut, 1 year, Const., Art. VIII of amendments (1845); Delaware, 1 year, Const. (1897), Art. V, sec. 2; Florida, 1 year, Const., Art. VI, sec. 1, as amended (1894); Georgia, 1 year, Const. (1877), Art. II, sec. 1, par. 2; Idaho, 6 months, Const., Art. VI, sec. 2, as amended (1896); Illinois, 1 year, Const. (1870), Art. VII, sec. 1; Indiana, 6 months, Const., Art. II, sec. 2, as amended (1881); lowa, 6 months, Const., Art. II, sec. 1. as amended (1868); Kansas, 6 months, Const. (1859), Art. V, sec. 1; Kentucky, 1 year, Const. (1891), sec. 145; Louisiana, 2 years, Const. (1898), Art. 197, sec. 1; Maine, 3 months, Const. (1819), Art. II, sec. 1; Maryland, 1 year, Const. (1867), Art. I, sec. 1; Massachusetts, 1 year, Const., Art. III of amendments (1821), Rev. Laws (1902), ch. 134, sec. 1; Michigan, 6 months, Const., Art. VII, sec. 1, as amended (1894); Minnesota, 6 months, Const., Art. VII, sec. 1, as amended (1896); Mississippi, 2 years, Const. (1890), sec. 241; Missouri, 1 year, Const. (1875), Art. VIII, sec. 2; Montana, 1 year, Const. (1889), Art. IX, sec. 2; Nebraska, 6 months, Const. (1875), Art. VII, sec. 1; Nevada, 6 months, Const., Art. II, sec. 1, as amended (1880); New Hampshire, see Const., Art. II, Bill of Rights, Art. 27, pt. 2, and Pub. Stats., ch. 31, where no specific time is prescribed; New Jersey, 1 year, Const. (1844), Art. II, sec. 1; New York, 1 year, Const. (1894), Art. II, sec. 1; North Carolina, 2 years, Const.. Art. VI, sec. 2, as amended (1902); North Dakota, 1 year, Const. (1889), Art. II of amendments; Ohio, 1 year, Const. (1851), Art. V, sec. 1; Oregon, months, Const. (1857), Art. II, sec. 2; Pennsylvania, 1 year (a person having previously been an elector or native-born citizen of the State, who has removed therefrom and returned, 6 months), Const., Art. VIII, sec. 1, as amended (1901); Rhode Island, 2 years (owners of real property, 1 year), Const. (1842), Art. II, sec. 1, Art. VII of amendments (1888); South Carolina, 2 years (ministers, and teachers of public schools, 6 months), Const. (1895), Art. II, sec. 4; South Dakota, 6 months, Const. (1889), Art. VII, sec. 1; Tennessee, 12 months, Const. (1870), Art. IV, sec. 1; Texas, 1 year, Const., Art. VI, sec. 2; Utah, 1 year, Const. (1895), Art. IV. sec. 2: Vermont, year. Const. (1793), ch. 2, sec. 39, Stats. (1894), sec. 61; Virginia, 2 years, Const. (1902), Art. II, sec. 18; Washington, 1 year, Const., Art. VI, sec. 1, as amended (1896); West Virginia, 1 year, Const. (1872), Art. IV. sec. 1; Wisconsin, 1 year, Const., Art. III, sec. 1, as amended (1882); Wyoming, 1 year, Const. (1889), Art. VI, sec. 2.