Evening star., 1915-01-04

requirement of actual residence ~ .
qualification for appointment to the Of
flce of civil Commissioner.
THE court submitted to the Jury by
proper instructions the question OF
whether or not respondent, when he
removed from Washington to Chicago
had an intention to return to wash
ington. In summing up on this orancn
OF tho case the court instructed the
jury. as follows: II you dnd that ne naa
the intention to return, II he hao ee-
tablished this bona fide residence mere
and when he went away intended to re-
turn. then. SO far as that point Is con-
cerned In reference to his absence. ne
citisen Of the District Of Coiumota:
. resident Of the District Of Columbia
The court then Instructed the jury
that they would also have to determine
respondents absence, he retained an
actual residence in Washington. as re.
quired by the statute. This branch OF
the case was summed UP In the follow
Newman has not been an actual resi-
dent Of the District Of Columbia within
the rules I have laid down to you for
three years next prior to his appoint
be that "the defendant is guilty Of the
act Of usurping the Office of Commits
sioner Of the District of Columbia" II
you find he has been such actual resi-
appointment, the form of your verdict
| should be that he as not guilty OF the
act Of usurping the office of Commits
| sioner Of the District Of Columbia"
Jury Decided Against Newman.
'The jury found against the respondent
generally. or. at least, that he had not
| been an actual resident Of tho District
Of Columbia for three years prior to his
| appointment. Reducing the verdict to
finding on the question Of actual resi-
dence alone. REALTORS intention to return
| becomes unimportant. except in so far
as it affects actual residence.
| THE general terms residence and
'domicile' are Of little importance here.
since Congress has used the restricted
term actual resident While there are
domicfle are regarded as synonymous
terms our attention has been directed to
no case where the terms actual residence
and 'domicile, when referring to different
locations. were held to be synonymous
THE statute imposes two limitations
upon the appointing power in the selection
Of civil Commissioner-f1rst, a person to
possess the legal qualifications for ap-
pointment shall have been an actual resi-
dent Of the District for three years pre-
ceding his appointment, and, second. he
shall not have claimed residence else
where.
! THE restricted term actual resident
Is used to define his qualification and
the general limitation. shall have, dur
Ing that period, claimed residence no.
where else,' to define his disqualifica-
| tfon.
Disqualifying Clause.
| 'It follows that, though a person may
have been an actual resident of the
District for three years preceding his
| appointment, but claimed residence or
domfctle or legal residence outside of
| the District, he falls within the dis
| qualifying clause Of the statute The
| converse must also be true that, il he
| merely claimed a domicile or legal res
| idence in the District during the re-
quired period. and. during the period,
| or portion thereof. maintained an ac-
tual residence or place of abode out
side of the District, made necessary, as
In this instance. by business engage
ments at such place of abode, he can
not measure up to the qualifications re-
Qutred by the statute. Assuming that
respondent did not claim residence
| elsewhere, there still remains the statu-
| tory requirement that he shall have
actually resided in the District of Co.
| lumbia for three years prior to his ap-
pointment
THE word actual is defined as
! something real, in opposition to con-
structive or speculative something ex-
| listing in act Bouvier's Law Diction-
ary. p. SO. It is also defined as real.
| present. visible, existent. existing in
| act Corpus Jurfs. vol /. 1882. and
cases cited. Applying these definitions
to the term actual resident used in the
| statute, 1t means that a person, to meet
the requirement, must be resident,
| residing in fact within the District,
| and not residing therein merely in con-
templation of law
More Authorities Cited.
I'm Upton agt. Upton, 81 KY, 243,
the statute under consideration provid-
ed: The plaintiff. to obtain divorce,
| must allege and prove, in addition to a
legal cause of DIVORCE, a residence
| In this state for one year next before
| the commencement of the atcion.' The
court construed this statute to require
an actual residence within the state,
| and. speaking of the difference be-
| tween legal and actual residence. said:
LAS contradistinguished from his
legal residence. he may have an actual
residence in another state or country.
He may abide In. the latter without
surrendering his legal residence IN
| the former. provided he so intends. His
| legal residence. for the purposes above
indicated, may be merely ideal, but
his actual residence must be sub
stantative. He may not actually abide
at his legal residence at all, but his
actual residence must be his abiding
place.
I'm Fitzgerald agt. Arel, 63 Iowa,
1o4, the court was considering the con-
struction of a statute which provided
that in certain cases justices of the
peace should not have jurisdiction over
actual residents of another county.
Distinguishing between an actual and
a legal resident, the court said:
"Proceeding. then, with our inquiry.
we have to say that it does, not neces-
ril1z follow that the defendant