Garrett v. Board of Registry

³⁹¹ Boyd, C. J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Montgomery County, refusing to direct the Registrars of a precinct in that county to strike from the registration hooks the name of Harry C. Wilkinson, on the petition of the appellant. The facts relied on by the petitioner, as the basis of his petition, are as follows: Mr. Wilkinson and his family resided at Chevy Ohase, in that precinct of Montgomery Oounty. On the 15th of May, 1920, he rented his house furnished, reserving the attic, for four and a half months — the lease ending the first day of October, 1920.

On the 15th of May he and his family left his house and went to a neighbor’s home in that precinct, where they remained until on or about the 8th day of June following, when his wife and son went to Maine on her accustomed summer vacation, as the heat was, by reason of her health, very oppressive to her. She and her son hoarded at a hotel. Mr. Wilkinson rented a room in an apartment house in Washington, D. 0., which he occupied, taking his meals elsewhere, from the 8th of June until the first of October, 1920, with the exception of two weeks that he spent on a visit to his wife and son, and he returned from time to time to his home at Chevy Ohase, where he had reserved the attic, in which he kept some of his personal effects, and to which he carried the key. On the first of October he returned with his: wife and son to his home at Chevy Ohase.

On the 12th of October, 1920, the name of Mr. Wilkinson was placed upon tie suspect list of said precinct, and notice was served on bim in accordance with the statute. In answer to the notice, he appeared before the Board of Registry to show cause why his name should not he stricken off. The board refused to strike bis name off the books, and, on October 26th, 1920, the appellant filed this petition in the circuit court. After a hearing, the petition was dismissed by the lower court, and this appeal was taken from that order- ³⁹² The petitioner relied on the portion of seotion 28 of article 33 of the Code which is as follows: a * * * ^g passage of act of 1901, chapter 2, all persons who shall vacate and remove from the place of their actual domicile, abode, dwelling place or habitation within this State, and shall take up a domicile, abode, dwelling place or habitation out of this State, shall be conclusively presumed to have lost their residence in this State, and shall in consequence thereof become disqualified to vote unless at or about the time of such removal, or within ten days thereafter,” they shall make an affidavit as therein provided.

It is admitted that Mr. Wilkinson did not make that affidavit, and as may be inferred from our action in passing the per curimn order heretofore filed, we are of the opinion that it was not necessary for him to do so. The statute does not authorize the names of voters who fail to make the affidavit to be stricken off merely because they “shall vacate and remove from the place of their actual domicile, abode, dwelling place or habitation within this State,” but it continues, “and shall take up a domicile, abode, dwelling place or habitation out of this State.” Mr. Wilkinson cannot properly be said to have taken up a domicile, abode, dwelling place or habitation out of the State, within the meaning of that statute. Me was a married man, living with his family in this State, and as his wife desired to go with her son to Maine for the summer months, he rented his house furnished, as above stated, and he and his family returned to their home in this State at the expiration of that short lease — he having gone to Washington, a few miles from his home, while they were away. If the construction placed on this statute by the appellant is correct, a man could not safely take his family to a