Evening star., 1915-01-05
Chief Justice Shepard UphoIds
Oliver P. NeWman's Title
to Commissionership.
QUESTION OF RESIDENCE
DECIDED IN HIS FAVOR
Sustains Contention That District
Official Had Legally Established
His Home in Washington.

blnatiOn or actual residence ana IN
tention of residence and when once ac-
quired can be lost or abandoned only
when both the residence and the in
tention to reside cease to exist. This
is the purport of the dissenting opinion
rendered today by Chief Justice Shep-
ard of the Court of Appeals Of the
District of Columbia, in which he ex-
presses the view that Justice Gould,
who presided at the custer trial last
July of Oliver P. Newman. president
of the board of District Commission
ers, should have instructed the jury to
return verdict in favor OF Mr. new
man.
Applying this test of a two-fold ele-
ment in actual residence to the testi-
mony at the custer trial. the chief
justine holds that Mr.. Newman comes
within the prescribed qualifications for
a nominee to the Office of civil Com
missioner of the District of Columbia.
Mr.. Newman had established his home
here. it Is pointed out. and when he
left Washington he had a contract for
ration of President Wilson went to
Chicago to close up his affairs.
Then" says the chief justice. the
agreement by which he was to return
to Washington was carried out. He
returned and with his family has re-
manned here since. He never intended
to take up a permanent residence IN
Chicago, or Princeton. or Seagirt. This
original location in Washington con-
stituted his residence or home. and
nently was fixed"
Attorney jackson H. Ralston, counsel
for Mr.. Newman, was well pleased when
told of the position taken by Chief JUS
With his associates, Mr.. Ralston is ex-
pected to begin at once the preparation
of the necessary papers for an applica-
ton to the Supreme Court OF the United
States for the allowance Of writ OF
error. Before this is filed, however. in
for the Commissioner may ask the Dis
trict Court of Appeals to allow a writ
of error. The granting of such writ by
the District court Is considered doubt
tiorari will be the method adopted.
Chief Justices Views.
Chief Justice Shepard. in his dissenting
opinion. says:
IT am compelled to dissent from the
Judgment affirming this cause. The evi-
dence plainly shows that Oliver P. New
man established his home or residence
in the city of Washington In March, 1910.
occupying an apartment with his family
until July, 1911. He owned no dwelling
houses in the city, but his intention was
to make Washington his permanent resi-
dence. He was a newspaper reporter and
correspondent, and in July, 1911, was en-
ployed by a newspaper union to travel
the country in its service, with headquar-
ters at Chicago.
when employed. it was in the contra It
that he should on finishing the Chi
cago work, be given employment by
the same company in Washington.
Before accepting the Chicago employ
ment he expressed his intention to sew
eral persons who were interested in
him to return to Washington and re-
tain his permanent residence there.
During his absence he was accus-
toned to travel in the western states
doing work for the newspaper union.
He was at Baltimore during the demo-
cratic nominating convention and was
afterward assigred to Princeton and
Seagirt, where the democratic nominee
resided.
November Is, 1912. he sent his fam
lily to Washington and went to Ber-
muda with the President-elect. who
took a vacation there. He remained
with the President-elect until March
4. when he came to the Shoreham
Hotel, taking an apartment assigned
to him there by his employer.
Immediately after the Inauguration
he went to Chicago, closing up his af-
fairs there, and then the agreement by
which he was to return to Washington
was carried out. He returned. and
with his family has remained here
since, He never intended to take up
permanent residence in Chicago or
Princeton or Seagirt.
This original location in Washing
ton constituted his residence or home,
and his intention to remain there per-
was fixed. Dizzy on his ad-
mirable treatise on the Conflict of
Laws page 81, says: As home Is
acquired by the combination of actual
residence factum) and intention OF
residence (animus). so it is. when once
acquired. lost or abandoned only when
both the residence and the intention to
reside cease to exist
He again says. on page III: If the
intention permanently to reside In
place exists. residence in pursuance
If that intention. however short, will
establish domicile.
Authority Cited.
This doctrine. Of actual residence.
however short, with intention of re-
naming permanently. is the test of
residence according to all the author
tiles. See Mitchell VS.. United States.
q Wall, 351, 353. Here it is said: A
domicile once acquired is presumed to
continue until it is shown to have been
Where change of domicile
is alleged, the burden of proving 1t
rests upon the person making the al
legation. To constitute the new dom
jci1e two things are indispensa BILE: First,
residence in the new locality; and, sec
ond the intention to remain there. The
charge cannot be made except facto ]
Of amino Both are alike necessary. !
Either without the other is insufficient. |
Mere absence from fixed home. how
ever long continued, cannot work the |
change, There must be the animus to |
change the prior domcile for another. |
Until the new one is acquired the old |
one remains. These principles are AK
lomatic in the law upon the subject
"The requirement of actual residence |
in the city does not add anything new. |
II surely could not have been intended J
py actual residence that a person |
should acquire a home in the District !
IF Columbia and remain in the District |
until the expiration of the
three years.
TT is conceded that a person making |
mis- home in the District may be per-
nitted to leave the District during the
hree years. 1t ought to make no diffor-
.nce that a person taking up his resi-
ience has not acquired an actual dwell |
ing house, but instead is compelled
10 establish himself in an apartment.
rhe actual residence, when once ac-
,uired with the intention to remain.
s all that is necessary.
The court, in my opinion, should
nave instructed the jury to return
verdict for the defendant. Wherefore
I believe the judgment should have
neen reyerSed.n