
    ENRIQUE GONZÁLEZ RODRÍGUEZ, Complainant, v. JOSÉ RUIZ SOLER, Defendant.
    San Juan,
    Equity,
    No. 1048.
    Motion to Dismiss.
    Spaniards in Porto Rico — Non-domicil.
    1. The question of domicil vel non is jurisdictional with the Federal court of Porto Rico and depends upon the facts of each particular case.
    Domicil- — Spaniards.
    2. The tendency in Porto Rico is for the Spaniards who are here in business to return ultimately to Spain; and the facts are to be looked at in this light.
    Domicil — Intention to Move.
    3. Where there is a definite intention to move, but the date for doing this is floating or flexible, depending upon business circumstances, local domicil does not exist.
    Domicil of Birth — Change.
    4. Where a man is born a Spaniard and there are no facts showing an intention to change, he still remains a Spaniard. Members of the Cortes are presumed to be Spaniards domiciled in Spain.
    Amendment — Jurisdiction.
    5. The plaintiff has a right to amend his bill upon proper notice, including the addition of jurisdictional facts.
    Opinion filed July 30, 1920.
    
      Messrs. Francis and De la, Haba for plaintiff.
    
      Messrs. Marlin and Jaime Sifre, Jr.} for defendant.
   Hamilton Judge,

delivered tbe following opinion:

In tbe case at bar tbe plaintiff is a Spanish subject, resident in Porto Bico, and tbe defendant is an American citizen under tbe Jones Act of 1917 extending American citizenship to Porto Ricans. A motion has been made to dismiss tbe bill for lack of jurisdiction by this court of tbe person of tbe plaintiff. The motion was beard upon evidence of tbe plaintiff himself and was submitted. During tbe course of tbe bearing tbe plaintiff moved to amend bis bill so as to show that be was and now is not domiciled in Porto Pico. This motion also was taken under advisement and tbe two motions will now be decided.

Tbe facts brought out upon tbe bearing can be best stated in connection with tbe points involved.

1. Tbe Organic Act of March 2, 1917 [39 Stat. at L. 965, chap. 145, Comp. Stat. § 3803 qq, Fed. Stat. Anno. Supp. 1918, p. 626], in § 41, gives tbis court “jurisdiction of all controversies where all of tbe parties on either side of tbe controversy are citizens or subjects of a foreign state or states, or citizens of a state, territory or district of tbe United States, not domiciled in Porto Pico.” Tbe question in this case, therefore, is whether the plaintiff, who is admittedly a Spaniard, is domiciled in Porto Pico. Tbe Supreme Court in tin; recent case of Porto Pico P. Light & P. Co. v. Mor [253 U. S. 345, 64 L. ed. 944, 40 Sup. Ct. Rep. 516] decided that tbe clause “domiciled in Porto Pico” shall be held as applicable as wrell to citizens of foreign states as to citizens of tbe United States, of any of tbe United States. Tbe question of domicil vel non depends upon tbe facts of each particular case. 9 R. C. L. 6.

2. There is a clear distinction between residence, home, domicil, and citizenship, although all have some points in common. The question usually comes up in American courts as between citizens of differtent states of the TJnion, the party in question being an American nevertheless. There is therefore no inference one way or the other growing out of citizenship. In Porto Rico, however, the question frequently arises in a different form. There are a great many French, English, Italians, and especially Spaniards, in Porto Rico, brought here by business or left over from residence under the Spanish flag. It would appear that a new element is injected into the question under these circumstances. It is a matter of common knowledge that Spaniards generally have the intention of ultimately returning to Spain. Looking at the course of business in Porto Rico, it seems to Be the fact that Spaniards remaining here from Spanish times or coming here during American times are active business men, and generally stay here for business purposes, and go back to Spain' when they have accumulated some money. The question o£ their bringing over young relatives, frequently nephews, to succeed them and carry on the business, is one of the common accusations as between Spaniards and Porto Ricans, although it is not intended by mentioning this to hold that the complaint is well-founded in all cases. This proclivity for returning to the European home is common, especially to the Latin races of Europe. The English and Germans seem more content to make, their peir-manent home away from their origiual home land, fatherland, whatever may be the fact as to the feelings they retain. The question of domicil in Porto Rico therefore womld be incompletely considered unless this element is taken into account.

3. A person’s residence is where be lives, regardless of bis intention in regard to permanence, Man being under modern .conditions such a migratory animal, there is no word for permanent residence. “Domicil” is the nearest approach, and that embraces not only residence but intention of remaining permanently. It is sometimes expressed with reference to indefinite residence. In Gilbert v. David, 235 U. S. 569, 59 L. ed. 363, 35 Sup. Ct. Rep. 164, Judge Story is quoted approvingly as saying, if a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, it is to be deemed his place of domicil, notwithstanding he may entertain a floating intention to return at some future period. Conflict of Laws, § 46. The court adds, the requisite animus is the present intention of permanent or indefinite residence in a given place or the absence of any present intention of not residing there permanently or indefinitely. In this case, therefore, permanence and indefiniteness are used interchangeably. In United States v. Chong Sam, 47 Fed. 885, it is said that actual residence with Iho intention of remaining indefinitely, not a purpose of permanent residence, is essential to the acquisition of a new domicil. It is clear that residence obtained merely for the purpose of carrying on business, for health, pleasure, or education of children, is not sufficient to constitute domicil. 14 Cyc. 841. The animus manendi alone is not sufficient, nor is physical presence sufficient. Both must unite to create domicil. Minor, Confl. L. § 62.

dYhat arc the facts on this point in the present case as to the plaintiff? In the testimony the plaintiff said in answer to the question whether he had any fixed time for leaving Porto Rico for good, that be bad not thought of It yet. In reply to tbo question, “When did yon intend to leave Porto Eico for good ?” he said, “I have not taken that determination yet.” This standing by itself might be interpreted that he had not any fixed intention to leave Porto Rico, but in this court the process of translation of question and answer from English into Spanish and vice versa must be taken' into account, and it occurred to the court that such was the case here, and the court therefore asked additional questions. The answers to these showed beyond doubt that the witness had and has a definite intention to leave Porto Rico, but that business reasons prevent his being able to fix an exact date as yet for carrying out this intention. The testimony and the manner of the witness convinced the court that this is a proper interpretation of his evidence. In other words, to use Judge Story’s expression, this is not a case of a floating intention to move. The intention is not at all floating, for it is perfectly definite. Rut for the World War it would apparently already have been carried out. Plaintiff is interested in sugar, sugar lands and factories, and on account of the high price of sugar it is probably impossible for anyone to fix a time in which it would be advisable to close up his sugar business. The same might be true of other forms of business also, for world conditions make certain forms of business remunerative; and this will continue for several seasons to come. The point that is floating, if that be the proper word in any respect, is not the intention, but the conditions rendering it possible to execute the intention. In other words, so far as the plaintiff himself is concerned, there is nothing indefinite. The indefiniteness arises from facts not within his control.

4. It is possible, however, to approach the solution of this question from another angle. Every man must have some dom-icil. No one is like Mahomet’s coffin, — suspended in the air. A rule which is of great assistance where other points are doubtful is in connection with the former domicil of the party. If it cannot be shown that a domicil has been changed, the original domicil continues. Whart. Confl. L. § 35; Anderson v. Watt, 138 U. S. 706, 34 L. ed. 1082, 11 Sup. Ct. Rep. 449. Where a domicil is proved, the burden of proving a change lies upon the one alleging the change. Desmare v. United States, 93 U. S. 605, 23 L. ed. 959. The essential fact that shows a change of abode or domicil is the absence of any intention to live .elsewhere than the new residence. Williamson v. Osenton, 232 U. S. 619, 58 L. ed. 758, 34 Sup. Ct. Rep. 442; Dicey, Confl. L. 111. In order to effect the change of domicil, there must be an actual abandonment of the first domicil, coupled with an intention of not returning to it. 9 R. C. L. § 6. The place where a person lives is taken to be his domicil until facts adduced establish the contrary, and a domicil when acquired is presumed to continue until it is shown to have been changed. Anderson v. Watt, 138 U. S. 706, 34 L. ed. 1082, 11 Sup. Ct. Rep. 449.

In the case at bar, plaintiff was born, it is true, in Porto Eico, but born when Porto Eico was Spanish, and at the time of change of flag it would seem that he was living in Spain, although he might have been in Porto Eico casually about that time. He married a Spanish lady in Spain, before and since the American occupation of Porto Eico was a member of the Spanish Cortes, representing the district of Saragossa which is at present still represented by his nephew. When he came bore in 1912 he registered himself and famity as Spaniards at the Spanish Consulate, has never voted in Porto Pico since the American occupation nor taken any part in politics directly or indirectly. Ho had lived in Spain for a number of years and returned to Porto Pico when as a matter of public knowledge it is known that there was a crisis as to the tariff on sugar; came here with the intention of setting- up his sugar business, and has remained here since most of the time because the World War made it profitable to continue that business. Nevertheless, he has not had the intention of changing his Spanish domicil. The Supreme Court in one case said that the exercise of political rights, such as voting, was conclusive evidence of domicil. This may have been obiter and has been doubted; but it is inconceivable that in a country where classes and precedents are so strict as in Spain, a man could be admitted to the Cortés, particularly to the upper branch, unless he was a Spaniard, as required by the Constitution, and also fully domiciled in Spain. Since the Spanish-American War Spain lias no colonies and is limited to the peninsula, excepting a few outlying islands. The Spanish Constitution does not seem to use the word “domicil” in speaking of members of the Cortes, but it must be held as fully implied. At the time he was a member of the Cortés, the plaintiff must be held to have been domiciled in Spain. Plaintiff still has a definite intention to return to Spain as soon as sugar- conditions admit.

5. An amendment to the bill was offered at the hearing, to the effect that the plaintiff was not domiciled in Porto Pico. It was not passed upon at the time, but was taken under submission. The plaintiff has a right to amend his bill at any time, upon proper notice, and there seems to be no reason whj* ibis should not be allowed. The motion to dismiss for lack of jurisdiction may possibly be considered as raising a question of form in this, that the bill as filed does not show Spanish ■domicil and therefore does not show jurisdiction by the court. A motion having been made to amend by inserting this allegation, it does not seem necessary to pass upon the point whether it is essential to have in the bill when filed this statement of Spanish domicil or not. In point of fact, while not originally alleged it is to be considered as now in the bill by amendment. There is no reason why jurisdictional facts should not be inserted by amendment before hearing just as any other fact.

The pleadings therefore being now correct from any point of view, the question comes up whether the evidence shows a lack of personal jurisdiction on account of nondomicil or whether domicil in Porto Pico is a proper inference. Upon «consideration of the whole evidence offered, it seems to the court that the plaintiff had before 1912 a Spanish domicil and that this has not been changed. As a result, the motion to dismiss for lack of jurisdiction must be denied.

It is so ordered.  