Gallagher v. Board of Supervisors of Elections

Prescott, J., delivered the opinion of the Court. We have, heretofore, filed a per curiam order affirming the action of the trial court. We now state our reasons therefor. ¹⁹⁶ This is an appeal from a judgment entered by the Superior Court of Baltimore City denying the issuance of a Writ of Mandamus against the Board of Supervisors of Elections of Baltimore City, and declaring, pursuant to Article 31A of the Annotated Code of Maryland, that: (a) The Board of Supervisors of Elections of Baltimore City properly and validly accepted the certificate of candidacy of Theodore R. McKeldin for the nomination of the Republican Party for the office of Mayor of Baltimore City; (b) the Board of Supervisors of Elections of Baltimore City shall include the name of Theodore R. McKeldin on the official ballot at the primary election to be held in Baltimore City on March 3, 1959, as a candidate for the Republican nomination for Mayor of Baltimore City; (c) Theodore R. McKeldin meets the qualifications prescribed for the office of Mayor of Baltimore City by Section 7 of the Baltimore City Charter (1949 Edition) and, if elected, may lawfully hold said office. Theodore R. McKeldin, who served as Governor of Maryland from January 10, 1951, until January 14, 1959, filed, with the Board of Supervisors of Elections of Baltimore City, his certificate of candidacy for the office of Mayor of Baltimore City in the Republican Primary Election to be held on March 3, 1959.

The Board accepted the certificate, but its action was challenged by the appellants on the ground that Governor McKeldin had not been a resident of Baltimore City (sometimes hereinafter referred to as “the City”) for ten years next preceding the election scheduled for May 5, 1959, as required by Section 7 of the Baltimore City Charter. A stipulation comprising an exhaustive factual catalogue relating to nearly every phase of the activities of Governor McKeldin and his family during his tenure as Governor was admitted in evidence in the court below. In brief outline it discloses: That prior to his election as governor in 1950, Governor McKeldin was a legal voter and resident of Baltimore City; that during his two terms as governor, he did not actually live in Baltimore City, but lived, with his family, at the Government House in Annapolis; that on February 29, 1952, pursuant to an opinion issued by a former attorney general to a former governor (21 Op. A. G. 386) to the effect ¹⁹⁷ that the former governor could not vote in Baltimore City-while he was governor and because many other governors had registered and voted in Annapolis during their terms, Governor McKeldin registered as a voter in Annapolis, and thereafter voted in both state and municipal elections; that he filed his state income tax returns from 1951 through 1958, giving his residence as Annapolis; that he opened a bank account in Annapolis; that he was listed as having a home address in the Annapolis telephone directory; that he had a substantial part of his home furniture crated and stored in the Government House at Annapolis; that he changed his motor vehicle registration cards and operator’s permit from his Baltimore address to Annapolis; that he applied for and was granted a non-resident membership in the Baltimore Country Club, which required the applicant to live beyond a certain radius from Baltimore City.

The stipulation further discloses: That during his tenure of office as governor, Governor McKeldin maintained 13 bank and building association accounts in Baltimore City; that he maintained a safe deposit box there, but none in Annapolis; that he was an active participating member in 31 civic, fraternal and communal organizations in the City prior to assuming the office of governor and has remained a member of each of said organizations; that while governor he actively participated in innumerable charitable campaign drives in the City, as well as making many personal contributions thereto; that he has continuously maintained a personal office in Baltimore City in addition to his official one; that while governor he purchased and sold several residential properties in the City; that, while he did not actually live in Baltimore City, he, at all times, owned a residence there; that a number of items of household furniture and furnishings were stored with members of his family in Baltimore City; that his regular physicians and dentists maintained offices in the City, where the governor and his family received treatment except in emergencies; that the governor and his wife have maintained charge accounts at all leading department stores of the City, and neither has ever had any charge accounts, other than with grocers, in Annapolis; that the governor’s children ¹⁹⁸ were enrolled and attended the public schools of the City; that the governor, on several occasions, wrote friends stating that he intended to live in Baltimore City again as soon as his term as governor was completed; that Governor McKeldin is now a registered voter in Baltimore City; and that Mrs. McKeldin maintained her personal and social contacts and .activities in Baltimore City during her husband’s terms as governor. In addition to the stipulation, both Governor and Mrs. McKeldin flatly testified that they never intended to abandon their residence in Baltimore City, but always intended to return and make their home there as soon as the governor’s tenure of office had ended. And the governor testified that while he was governor, he had spent 80% of his “waking time” in the City. In dealing with questions relating to “residence” or “domicile,” or both, the intention of the party who is alleged to have had the residence or to have changed his domicile is one of the vital factors to be considered.

A person’s intention at any particular time is, of course, a question of fact. We recently quoted, with approval, a celebrated statement to the effect that the state of one’s mind is as much a question of fact as the state of his digestion. Tufts v. Poore, 219 Md. 1 , 147 A. 2d 717 . Because of its importance and as it was the only question of fact determined by the court below, we proceed to consider the question: Does the evidence show that Governor McKeldin intended to live in Annapolis only so long as he was governor and then to return to Baltimore and live there, or does it show that he intended to live in Annapolis for an indefinite time thereafter?

The appellants contend that by the various acts set forth in the stipulation, the Governor actually, or by inference, acknowledged that he was in fact a resident of Annapolis. It would unduly' prolong this opinion to consider and discuss each act and incident mentioned therein. The most emphasized of these incidents were: (a) His registration to vote in Annapolis, which was accompanied by his affidavit that he was a resident there; (b) his listing of Annapolis as his ¹⁹⁹ place of residence on his income tax returns; and (c) his becoming a non-resident member of a Baltimore social club. (a).

Registration in Annapolis. All authorities that we have examined, except the Federal courts, and all of the previous decisions of this Court agree that the place of voting is an important factor to be considered in determining domicile, but that it is not conclusive in the absence of constitutional or legislative provisions making it so. Harrison v. Harrison, 117 Md. 607, 613 , 84 A. 57 ; Willingham v. Willingham, 162 Md. 539, 541 , 160 A. 280 ; Wagner v. Scurlock, 166 Md. 284, 292 , 170 A. 539 ; Shenton v. Abbott, 178 Md. 526, 531 , 15 A. 2d 906 . The governor testified that in 1952 he registered in Annapolis after one of his friends told him his predecessors in the office of Governor had done so, and his idea was to conform with precedent.

In regard to his voting in Annapolis, the appellants lay great stress upon Code (1957), Art. 26, Sec. 24, 1 which provides that no judge of the Court of Appeals shall be deemed to have abandoned his residence in the judicial circuit from which he shall have been elected unless he shall signify his intention so to abandon his former residence by voting in Annapolis. They argue that this is a legislative determination of what constitutes proof of intention to abandon one’s prior residence and to acquire a new one by operation of law, which, when considered with the Governor’s registering and voting, voluntarily, in the City of Annapolis, should be taken as overwhelming and conclusive proof of his intention to abandon his former residence. ²⁰⁰ With this, we are unable to agree. We have already stated that the matter of voting is a strong and important factor to be considered with the other circumstances of each case in determining the question of intention as it relates to either residence or domicile. Perhaps, said Article 26, Section 24, makes such action by a member of the Court of Appeals conclusive so as to establish an intention to abandon the member’s prior domicile; but there is no similar statutory provision with reference to the office of Governor, which leaves the law, as it relates to that office, as it was laid down in Harrison v. Harrison and Shenton v. Abbott, both supra, namely, that voting is a strong factor to be considered with other circumstances in determining intention, but it is not conclusive.

The strength of its probative value and the weight to be given to it are dependent upon the circumstances of each individual case. In some cases it may be the highest evidence of domicile, but, when overbalanced by other circumstances, “the fact of voting may be of slight importance.” Wagner v. Scurlock, supra, 166 Md. at page 292 . See also Willingham v. Willingham, supra. We conclude, therefore, that the governor’s voting in the City of Annapolis was an appropriate incident to be considered in determining his intention relating to his domicile, but that it was not conclusive.

(b) . Listing Annapolis as place of residence on income tax returns. This, like the question of voting, was a proper factor to be considered on the question of intention, but it, also, was not of determinative effect. (c) .

Becoming a non-resident member of a Baltimore social club. This, too, was a relevant incident that the court below properly considered on the question of intention. The governor testified that one of his friends told him that the waiting list of applicants for membership in the club was so long that it required several years to become admitted, that the friend suggested a non-resident membership which would become effective immediately, and, in order to permit his children to have prompt access to the facilities of the club, he became a non-resident member. The trial judge stated that “[a]s to each of the episodes that have been mentioned, it is the opinion of the court that ²⁰¹ the petitioner acted without the slightest thought of his action having any connection with his intention to live in Annapolis only so long as he was Governor * * *,” and concluded the question of intention by saying: “Whatever evidence there may be to indicate the petitioner’s intention to reside indefinitely in Annapolis must yield to the overwhelming evidence to the contrary.

There is no evidence of any reason for the petitioner to have resided in Annapolis after he ceased to be Governor, and all of his words and actions showed his intention not to do so.” With this conclusion of the learned trial judge, we are in accord. Governor McKeldin was born and raised in Baltimore City; he practiced his profession there; there he had voted and served the City in the capacity of Mayor; and his sole purpose in going to Annapolis was to serve as Governor of the State. Without going more into detail, we think the stipulation, Governor and Mrs. McKeldin’s direct statements that they never, at any time, entertained an intention not to return to Baltimore City at the expiration of his tenure of office as Governor and the other testimony, which failed to show any reason, whatsoever, for his remaining in Annapolis, conclusively show Governor McKeldin’s inseparable connection, at least to the present time, with the City of Baltimore and establish that his social, personal business, fraternal, civic and religious activities and contacts were and are, again at least to the present time, inextricably interwoven with Baltimore City. In our opinion, the trial court properly decided the question of intention.

The appellants also claim that the provision of Article II, Section 21, of the Maryland Constitution, which states that “[t]he Governor shall reside at the seat of government,” requires, by operation of law, the occupant of that office to sacrifice and abandon any former legal residence, and to establish a new one for political purposes; consequently, when Governor McKeldin “resided” in Annapolis during his term as governor, he did so under a constitutional mandate to abandon his previous legal residence in Baltimore. ²⁰² It seems to be universally acknowledged that the words “reside” and “residence” are legal “legerdemains” of no small importance. This Court has stated that “[a] 11 agree that the word ‘residence’ is, in itself, susceptible of different meanings,” Shaeffer v. Gilbert, 73 Md. 66, 69 , 20 A. 434 , and “[t]he term residence is one which is used to signify different things.” Harrison v. Harrison, supra. In his noted work, The Conflict of Laws, Professor Beale in Volume I, Section 10.3, states: “Residence, then, is a word which may bear different shades of meaning according to the context. It may mean something more than domicil: a domicil, namely, at which the party actually dwells.

On the other hand, it may mean something less than domicil: a dwelling-place adopted for the time being, but without such an intention of permanent abode as to create a domicil there. “The word ‘residence’ is often used in statutes. When it is so used, there is room for difference of interpretation. As used in a statute, the word may mean a domicil; or it may mean a dwelling-place, which lacks the legal requirements of domicil.” There is little doubt that the terms “reside”, “residence” and “domicile” have been somewhat puzzling to the Courts, textwriters and lexicographers not only in this country but throughout the world. Kennan, Residence and Domicile, Oh. 1.

Some states have made statutory definitions of one or more of the terms; but, where there is none, all Courts seem to agree that they must be construed in accordance with the context and the purpose of the constitution, charter, statute or instrument in which