Lancaster v. Herbert

McSherry, J., delivered the opinion of the Court. The name of Charles C. Lancaster, Esq., was stricken from the list of qualified voters of election district number five of Charles County in October, eighteen hundred and ninety. Mr. Lancaster thereupon appealed to the Circuit Court for that county, and the action of the officer of registration having been affirmed, the case has been brought into this Court for final review. On the fifth day of May, 1890, Mr. Lancaster made the affidavit required to be made, under sec. 14, ch. 573, Acts of 1890, by registered voters who had left the State prior to the passage of that Act.

He attacks the constitutionality of the statute and claims that he is, in spite of its provisions, still entitled to vote in Charles County. In Southerland’s Appeal, ante p. 326, some of the objections relied on here were considered and passed upon, and need not again be discussed. In that case the voter failed to make the affidavit prescribed by sec. 14, ch. 573, Acts of 1890, and it was insisted that he was notwithstanding that failure entitled to vote; whilst here the appellant made the affidavit and therefore urges (aside from the constitutional questions raised,) that his name should not have been stricken from the lists. Whilst the statute has declared that the failure to make the affidavit shall be conclusive evidence of an intention to abandon his residence in the State, under the circumstances mentioned in the section, it has not said that the making of the affidavit shall be conclusive evidence of a contrary intention.

In other words, the making of the affidavit operates to prevent the application of the presumption raised by the 14th section, though when made it does not have, of itself, the effect of establishing a. legal residence in Maryland, if the facts and circumstances surrounding and attending the removal and domicile abroad are sufficient to show that the affiant has, in fact, surrendered his residence in this State. ³⁴⁰ When the affidavit has been made the question of residence is still open for investigation; hut when it has not been made that question is conclusively settled. When open, its solution must depend upon other competent and admissible evidence. What, then, are the facts ? Mr. Lancaster was horn in Charles County, and resided there with his parents until he entered Georgetown College to complete his education.

After graduating in 1814, he went to Washington City, studied law, entered the service of the General Government in the Treasury department and in the department of Justice, subsequently resigned and has been practising law ever since in Washington, where he has resided continuously with his wife and children in a rented house up to the time of the hearing in the Court below. He is a part owner and manager of an estate in Charles County. He occasionally went to the county on business connected with the management of that estate. For sixteen years he has not resided in Charles County.

During that entire period of time his actual domicile has been in the District of Columbia. His and his family’s home has