zenship or claiming to be non-enemies are by reason of such residence enemies within the meaning of the Act, regardless of their citizenship. Kahn v. Gawan, 263 F. 909. Vide, Note Lex Domicilli under Section 20. 47. Resident. What Constitutes Within the Meaning of the Section. Discussion of the Law by the Attorney General. The Attorney General in passing upon certain claims, which upon the evidence were allowed, where the parties were German subjects in Germany during the war, but who had resided in the United States for years, establishing in one case a business and in the other a profession, and being caught in Germany, where they were temporarily sojourning, after the outbreak of the war, and, being unable to get back, engaged in international Red Cross work, but returned to the United States after the war, discussed in an opinion to the Alien Property Custodian, the law as to what would constitute a resident, within the meaning of the section, as follows: In this connection there has been considerable difficulty in the determination of the status of a person in Germany at the beginning of the war, because an interpretation of the word "resident" necessarily involves an inquiry as to the intent of the particular person. The determination of the intent of a person, particularly one in Germany at the beginning of the war, is fraught with difficulty and uncertainty. For any tribunal to pass upon that which was in the mind of a person is somewhat dangerous, to say the least. Irrespective of this, however, it is likewise true that this department must recognize an issue when directly presented, as this issue is, and it must be conceded that actions of parties claimant, at times both prior and subsequent to the war, are indicative of the intent of those parties. You will, therefore, please find under the subsequent heading of "Evidence Submitted" a statement of those actions of the claimant upon which the department proposes to predicate its opinion. It is apparent from an examination of the statement of the facts and from the proof, as set out in this opinion, that beyond all question the determina tion of the issue in this case devolves upon the interpretation of the word "resident." Was this claimant, in view of the facts and circumstances of this case, a resident of Germany within the meaning of the Trading with the Enemy Act? In all candor, this department would not be justified in evading this question, because of a policy question arising from the future possibility of the presentation of a great number of similar claims. The facts here create this issue and its consideration is inescapable. In general, the civil rights of a person depend upon whether that person is a transient, a resident, and inhabitant with domicile, or a subject or a citi In the ascertainment and establishment of the status of people, the authorities are at variance, and particularly is this true in the cases reported from the several states. The presence of the individual and his intent are obviously the two controlling features. There is no question that the citizen is entitled to all the protection possible from his Government. There is very little distinction between a citizen and an inhabitant with his domicile in the United States. A resident is present within the jurisdiction, and he differs from the inhabitant with domicile, in that he, the resident, does not intend to maintain a permanent residence. Of course, the transient is one who is temporarily within the jurisdiction by reason of business or otherwise. There is no hard and fast distinction between those who can be classified under the foregoing heads, but it is true that it is exceedingly difficult at times to place a person in any definite category. In fact, the terms are often used interchangeably. You are referred to the following definitions: "To 'reside' means: (1) To dwell permanently or for a considerable time; to have a settled abode for a time; to abide continuously; to have one's domicile or home; to remain for a long time. ""Residence' is defined to be the abiding or dwelling in a place for some continuance of time. There must be a settled, fixed abode or intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence." "In order to constitute residence, it is "A resident of a place is one whose present abode is there and who has no present intention of removing therefrom." Penfield v. Chesapeake, etc., R. R. Co., 29 Fed. 494; 134 U. S. 351; Am. & Eng. Ency. of Law, Vol. 24, pp. 694, 695 and cases thereunder. 'A "Domicile has been thus defined: residence at a particular place, accompanied with positive or presumptive proof of intention to remain there for an unlimited time.' "To constitute a new domicile two things are indispensable: First, residence in the new locality; and, second, intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains. These principles are axiomatic in the law upon the subject." Mitchell v. U. S., 88 U. S. 350. The United States Supreme Court, therefore, has held that domicile is something more than residence. But the word in the statute now under consideration is "resident", and this citation is only for the purpose of distinguishing the word "resident", from the word "domicile." The law, however, does not say that all persons must have either a residence or a domicile. There is the status of the transient, to which the State or Government owes the least possible duty. The authorities in this connection, in placing such a per son, say: "In general, it may be said that the term 'resident' or 'residence' imports a fixed abode for the time being, as contradistinguished from a place of temporary sojourn, and that a mere transient is not a resident. Am. & Eng. Ency. of Law, Vol. 24, p. 698, and cases thereunder. The above are cited as representative and good authority for the definition of the terms first mentioned under this sub-heading. The department does not propose to formulate its opinion upon the basis of general law, and you are, therefore, respectfully referred to several cases in which there is an analogous situation and in which the United States Supreme Court has defined the word "resident" and has distinguished between the "resident" and the "transient." Your particular attention is called to the opinion by Mr. Chief Justice Fuller handed down in 1891, which has to do with the interpretation of the word "resident" in the New York Statute of Limitations at that time. It was contended that certain absences from the State were never with the intention of remaining away, except for temporary purposes of pleasure or business, and that there was one absence in Iowa and Wisconsin on business, which lasted between fifty and ninety days. The Court held, as a matter of law, that all the absences referred to should be accumulated and not taken as a part of the period of limitation, which being done, the statutory bar was ineffective. The question in this case is whether under the New York law defendant was properly held to have departed from and resided out of the State of New York by reason of these absences. The Court said that 66 "To reside out of the State' meant the taking up of an actual abode or dwelling place elsewhere, and not a mere temporary sojourn for transient purposes. "The inquiry is as to the meaning of the words as used. If 'resident' were always synonymous with 'domicile', or even with 'inhabitancy', there would seem to be no room for contention; but if the language here was intended to express something less than domicile or inhabitancy, then the proper definition must be arrived at in view of that intention and the subject-matter to which the words were applied, and we are of the opinion that 'to reside out of the State' comprehended something more than alighting at a place in travel or in pursuit of temporary objects, and such we understand to be the result of the decision by the courts of New York." Barney v. Oelrichs, 138 U. S. 532. The Court then goes into the law of the State of New York, citing a number of cases to the effect that "inhabitancy" and "residence" do not mean precisely the same thing as "domicile", but that they mean a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere temporary locality of existence. In the instant case claimant lived in the State of New York for the thirty-seven years he was in the United States. Your attention, however, is particularly called to the following expression of Chief Justice Fuller: "But mere presence was not tantamount to residence under the statute, nor mere absence equivalent to residence elsewhere." Barney v. Oelrichs, 138 U. S. 536. So we have here a decision of the United States Supreme Court rendered by a Chief Justice, interpreting the words in a New York Statute "to reside out of the State", and we find that there is a distinction between one who is a transient temporarily sojourning at a particular place and one who has taken up an actual abode or dwelling place. The Courts hold that in order to reside out of the State of New York there must be an absence other than a temporary absence, which would include excursions for pleasure or business with contemplated return to the State of New York. |