Eau Claire County, Appellant, v. Milwaukee County, Respondent, 24 Wis. 2d 292

Currie, C. J. The issue on this áppeal is whether the evidence at the hearing before the department established as a matter of law that Mrs. Carden had gained a legal settlement, under sec. 49.10 (4), Stats. 1955, in Milwaukee at the expiration of the one-year period beginning April 27, 1956, when she first commenced to reside there. In two well-considered decisions of this court authored respectively by Mr. Justice (later Chief Justice) Brown and Mr. Justice Wingert it was held that the term “residence” as used in sec. 49.10, Stats. 1955, was the equivalent of domicile. Carlton v.

Department of Public Welfare (1956), 271 Wis. 465, 468, 74 N. W. (2d) 340, and Marathon County v. Milwaukee County (1956), 273 Wis. 541, 544, 545, 79 N. W. (2d) 233. To acquire a domicile, a person must establish a dwelling place with intention of making it his home. Marathon County v. Milwaukee County, supra, at page 545. Implicit in the decision of the department in the instant case was the determination that Milwaukee constituted Mrs. Carden’s domicile from April 27, 1956, to March 31, 1957, when she left that city and went to Eau Claire taking with her all her personal belongings except the TV set.

This is because such decision makes it clear that, if the department had found that she had possessed an unequivocal intent to return to Milwaukee to reside during her absence from the city for the period of March 31, 1957, to April 27, 1957, it would have found she had established a legal settlement in Milwaukee for the purposes of sec. 49.10 (4), Stats. 1955. This is in keeping with the well-recognized principle that though both personal presence and intention are required to establish a domicile, a temporary absence with intent to return does not affect a change of domicile. Miller v. Sovereign Camp W. O.

W. (1909), 140 Wis. 505, 508, 122 N. W. 1126; 17A Am; Jur., Domicil, p. 214, sec. 23. There is an equally well-recognized principle that a domicile once established continues until it is superseded by a new domicile. Will of Eaton (1925), 186 Wis. 124, 133, 202 N. W. 309; Seibold v. Wahl (1916), 164 Wis. 82, 85, 159 N. W. 546; Miller v. Sovereign Camp W. O. W., supra, at page 509, 122 N. W. 1126; 17A Am. Jur., Domicil, p. 207, sec. 17; 28 C. J. S., Domicile, p. 30, sec. 13 a. It is highly significant that Mr. Justice Wingert’s opinion in Marathon County v.

Milwaukee County, supra, declared (p. 545) : “A domiciliary residence once established is not lost until a new one is acquired. Will of Eaton, 186 Wis. 124, 133, 202 N. W. 309; Restatement, Conflict of Laws, p. 47, sec. 23.” Thus it is immaterial whether, during Mrs. Carden’s absence from Milwaukee from March 31 to April 27, 1957, she had an unequivocal intent to return to Milwaukee to reside so long as she did not acquire a new domicile elsewhere during that twenty-seven-day period.

The evidence adduced at the hearing is wholly insufficient to support a finding that she had gone to Eau Claire at this time with intent to establish a permanent residence there. Accordingly by April 27, 1957, she had maintained her domicile or residence for one year in Milwaukee and obtained legal settlement there under sec. 49.10 (4), Stats. 1955. This legal settlement continued to the time that Eau Claire county supplied the relief for which reimbursement is sought. It is conceded that under our present public-assistance statutes Mrs. Carden would not have acquired a legal settlement in Milwaukee.

The 1959 legislature repealed and recreated sec. 49.10, Stats. 1955, by enacting ch. 102, Laws of 1959. Among the changes made thereby was the addition to sec. 49.10 of sub. (12) (

c) which provides, “ ‘Residence’ is the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence shall be prima facie evidence of intent to remain.” This 1959 change in the statute has no application to the instant controversy because the relief was supplied to Mrs. Carden in 1958. Because Mrs. Carden had her legal settlement in Milwaukee at the time plaintiff Eau Claire county furnished her with relief, plaintiff county was entitled to reimbursement therefor.

By the Court. — Judgment reversed with directions to the circuit court to reverse the order of the department and remand to that agency for the entry of a proper order ordering defendant county to reimburse plaintiff. This statute provides in part as follows: “Every person (except as otherwise provided in this section) who resides in any municipality one whole year without receipt of aid under this

chapter gains a legal settlement therein; . . .” The stated exceptions to this quoted provision are immaterial to the instant controversy.