1. A domicile once existing continues until another is acquired,
and, where a change thereof is alleged, the burden of proof rests
upon the party making the allegation.
2. A., whose domicile was, and continued during the war to be,
at New Orleans, went into or remained within the territory embraced
by the rebel lines, engaged actively in the service of the rebel
government, and, while so engaged, purchased certain cotton, which,
upon the subsequent occupation of that territory by the military
forces of the United States, was seized, sold, and the proceeds
paid into the Treasury.
Held that his purchase of the
cotton was illegal and void, and gave him no title thereto.
3.
Mitchell v. United
States, 21 Wall. 350, reaffirmed and applied to
this case.
On the 26th of June, 1867, Alphonse Desmare, of New Orleans,
La., filed his petition in the Court of Claims to recover the value
of five hundred and fifty-six bales of cotton, alleging that, in
the year 1863, he was the owner of that number of bales, then at
Opelousas, in the Parish of St. Landry, La.; that, in April, 1863,
said cotton was taken and captured by officers of the United States
Army, by whom, under the orders of General N. P. Banks, commanding
the Department of the Gulf, it was shipped to New Orleans, sold,
and the proceeds placed in the Treasury of the United States.
The court below found, as matters of fact:
1. The claimant, before the war, had his domicile in the City of
New Orleans, La., where he resided, and was a partner with one
Laforest, under the style of Laforest & Desmare, commission
merchants, and he was residing there also on the 19th of January,
1866. There is no evidence of any change of said domicile, or of a
dissolution of said partnership; nor is there any evidence as to
where the claimant was on the 27th of April, 1862, when the United
States military forces took possession of New Orleans, or before
that date, during the war, of
Page 93 U. S. 606
afterward, until October, 1862, when it is proved he was in the
Parish of St. Landry, La., purchasing the cotton, which is the
subject of this action, and acting as agent of the rebel government
for the exchange of Confederate bonds for Confederate notes, for
which latter purpose he had an office at Opelousas in said parish.
Said parish was within the rebel lines until April, 1863, when it
was taken possession of by United States forces under General
Banks.
2. Between the 1st of October, 1862, and the month of April,
1863, the claimant, in person, purchased within said parish, of
different persons, two hundred and sixty-eight bales of cotton, and
paid for the same in Confederate money. All of said cotton was
seized by officers of the United States upon the entry of their
military forces into said parish was turned over to agents of the
Treasury Department, sold, and the net proceeds, to the aggregate
amount of $51,456, are now in the United States Treasury.
3. Said claimant and one Dupre, jointly and personally,
purchased within said parish, March 3, 1863, eighty-four bales of
cotton, for which they gave their notes, with security. These notes
were paid after the war, one-half by the claimant and one-half by
said Dupre. This cotton was seized by officers of the United States
in April, 1863, was turned over to Treasury agent and sold, and the
net proceeds thereof, to the amount of $16,128, are in the United
States Treasury.
4. The claimant has failed to prove that any other cotton owned
by him was seized by officers or agents of the defendants.
The court thereupon concluded, as matters of law:
1. The claimant's domicile, found to have been in the City of
New Orleans before the war and not proved to have been changed, is
presumed to have continued and been in that city when the purchases
of cotton were made by him within the rebel lines, as set forth in
the findings.
2. The claimant's domicile being in the City of New Orleans, he
is presumed to have been there personally until he is proved to be
elsewhere, and the claimant, not showing that he was absent from
the place of his domicile when the city was captured, April 27,
1862, it is presumed he was there at that time,
Page 93 U. S. 607
and subsequently crossed the federal lines about the time he is
proved to be in the Parish of St. Landry.
3. The purchases of cotton by the claimant, under the
circumstances set forth in the findings, were void as against the
law and public policy of the United States, and he acquired no
title to the cotton thereby.
The plaintiff's petition having been dismissed, he appealed to
this Court.
Page 93 U. S. 609
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The judgment of this Court in
Mitchell
v. United States, 21 Wall. 350, is decisive of this
case. It is unnecessary to repeat what was there said. The subject
of domicile in some of its
Page 93 U. S. 610
aspects was carefully considered. We shall avail ourselves of
its rulings without again specially referring to it. The findings
of the Court of Claims furnish the facts we are to consider, and we
cannot look beyond them. For the purposes of this case they import
absolute verity and conclude both parties.
Before the breaking out of the late civil war, the appellant was
domiciled in the City of New Orleans. He was a member of a
commercial partnership there. There is no proof of any change of
domicile subsequently. A domicile once existing continues until
another is acquired. A person cannot be without a legal domicile
somewhere. Where a change of domicile is alleged, the burden of
proof rests upon the party making the allegation.
The cotton covered by the claim in the present case was all
purchased by the appellant in the Parish of St. Landry, in the
State of Louisiana, between the 1st of October, 1862, and the 1st
of April, 1863. That territory was then within the rebel lines. The
appellant was there acting as the agent of the rebel government in
exchanging its bonds for Confederate notes. His office, as such
agent, was at Opelousas, in that parish.
On the 6th of April, 1862, Admiral Farragut reached New Orleans
with his fleet. On the following day he demanded of the mayor the
surrender of the city. No resistance was offered. On the 1st of May
transports conveying the troops of General Butler arrived. On the
following day their landing was completed. The military occupation
of the city by the United States than began, and it continued
without interruption down to the close of the war. On the 6th of
May, the commanding general issued a proclamation (prepared and
dated on the 1st), whereby it was declared that "all rights of
property of whatever kind will be held inviolate, subject only to
the laws of the United States." The Nonintercourse Act of July 13,
1861, 12 Stat. 257, and the President's proclamations of the 16th
of August, 1861, 12 Stat. 1262, of the 12th of May, 1862, 12 Stat.
1262, and of the 2d of April, 1863, 13 Stat. 731, need not be
particularly adverted to. They have been so often considered by
this Court in previous cases, that the public and the profession
are familiar with them. The Parish of St. Landry
Page 93 U. S. 611
was also subjugated by the arms of the United States in April,
1863. The cotton in question was thereupon seized, and subsequently
sold, and the proceeds paid into the Treasury of the United States,
where they remain. Those proceeds are the subject of this
litigation.
Upon the issuing of General Butler's proclamation, the legal
status of New Orleans and its inhabitants, with respect to the
United States, became changed. Before that time the former was
enemies' territory and the latter were enemies, in all respects as
if the pending strife had been a public war between the United
States and a foreign belligerent, and the city had been a part of
the country of the enemy, although he conflict was in fact only a
domestic insurrection of large proportions. The city was blockaded,
and the property of its inhabitants, wherever found at sea, was
seized, condemned, and confiscated as prize of war. General
Butler's proclamation was proof of the subjugation of the city and
the reestablishment of the national authority. The hostile
character of the territory thereupon ceased, and the process of
rehabilitation began. The inhabitants were at once permitted to
resume, under the regulations prescribed, their wonted commerce
with other places, as if the state had not belonged to the rebel
organization.
The Venice, 2
Wall. 258. But they were clothed with new duties as well as new
rights. It was a corollary from the new condition of things, that
they should obey the inhibition of trade with the localities still
under the ban of the President's proclamation of the 16th of
August, 1861. In this respect, they were on the same footing with
the inhabitants of the loyal states, abiding in such states and
with the citizens of such states and foreigners then sojourning in
New Orleans. It was not a penal infliction, but was intended for
the benefit of the nation in the prosecution of the war. It was a
burden incident to the effort the government was making to put down
the insurrection. It was the plain duty of the appellant to obey
the injunction. Instead of doing so, while his domicile, in the
view of the law, was and continued to be at New Orleans, he went or
remained within the rebel lines, engaged actively in the service of
the rebel government, and was so engaged when and where, as he
alleges, he acquired the ownership of the cotton in question.
Page 93 U. S. 612
His contracts for the cotton were clearly illegal and void, and
gave him no title. Such has been the ruling of this Court in an
unbroken series of adjudications.
Coppel
v. Hall, 7 Wall. 548;
United
States v. Lane, 8 id. 185;
United
States v. Grossmeyer, 9 Wall. 72;
United
States v. Montgomery, 15 Wall. 395;
United States v.
Lapine, 17 Wall. 602;
Mitchell
v. United States, 21 Wall. 350.
The result is the same as if the purchases had been made by an
agent of the appellant, sent by him from New Orleans, instead of
having been made by himself in person.
To hold otherwise would give a premium to a law-breaker, and
involve the anomaly of conceding to the offender rights and
immunities denied to all the citizens to the loyal states.
Judgment affirmed.
