While a person may have several residences, he can have only one domicile at a time. Croop v. Walton, 199 Ind. 262, 157 N.E. 275; Restatement of Conflict of Laws, secs. 9, 11. This court holds that the orphans court of one county has no authority to probate the will of a testator who had his domicile in another county. Shultz v. Houck, 29 Md. 24, 27; Brafman v. Brafman, 144 Md. 413, 415, 125 A. 161.
See Yarborough v. Yarborough, 290 U.S. 202, 211, 54 S.Ct. 181, 78 L.Ed. 269 (1933) (distinguishing between the temporary residence of a child in a state, where she had been taken by a parent, and the child's legal domicile). "Domicile," on the other hand, was characterized by the person's intention to live and make a home in a particular place. Croop v. Walton, 199 Ind. 262, 157 N.E. 275, 277 (1927). Now, our Supreme Court uses the terms "residence" and "domicile" synonymously in certain circumstances.
However, in this case, whether Bruns maintained the Plainfield rooming house 365 days per year is not germane to the disposition of the issue of liability under the MVET statute. What is germane is whether the facts of this case show that Bruns occupied the Plainfield rooming house for at least 183 days per year pursuant to the MVET statute. Under the MVET statute, a person can maintain a residence in Indiana for 365 days; however, to be liable under the MVET, it must be shown that the taxpayer lived in Indiana for at least 183 days per year. In Croop v. Walton, 199 Ind. 262, 157 N.E. 275 (1927), the Indiana Supreme Court dealt with facts similar to those in the case at bar. Croop was not based on an excise tax but rather on taxes on certain intangible property consisting principally of corporate stock in a Michigan furniture manufacturing company.
We have interpreted residence to mean domicile in a variety of other circumstances. State ex rel. Flaugher v. Rogers (1948), 226 Ind. 32, 77 N.E.2d 594 (school admission); Croop v. Walton (1927), 199 Ind. 262, 157 N.E. 275 (taxpayer residency); State ex rel. White v. Scott (1908), 171 Ind. 349, 86 N.E. 409 (eligibility of county office holders); Maddox v. State (1869), 32 Ind. 111 (voter eligibility). IV. The Meaning of Domicile
However this court has recognized long ago that where property is not subject to taxation, the assessment thereof for such purpose is void and may be restrained by injunction irrespective of the existence of other rights. In Croop v. Walton (1927), 199 Ind. 262, 157 N.E. 275, where the issue raised was the propriety of injunctive relief, this court stated that: "If the omitted property is subject to taxation and the amount assessed is erroneous, the taxpayer has the `right to appeal,' under the statute quoted, and he also has the right to file a claim for a refund under Section 14376, . . . but where the property is not subject to taxation the assessment is void, and its collection can be restrained by injunction, regardless of the right to appeal or to file a claim for refund."
Mechanics Bank v. City of Kansas, 73 Mo. 555; Valle v. Ziegler, 84 Mo. 214; North St. Louis Gymnastic Society v. Hudson, 12 Mo. App. 342, 85 Mo. 32; Exposition Driving Park v. Kansas City, 174 Mo. 425; Turnverein v. Hagerman, 232 Mo. 693. (5) The right to injunction is supported by general authorities. 1 High on Injunctions (4 Ed.), sec. 530, p. 504; 61 C.J., sec. 1426, p. 1081; Grisard v. Rose Lawn Cemetery Assn., 19 P. 766; Walker v. Hays, 127 Okla. 124; Croop v. Walton, 199 Ind. 265; Smith v. Osburn, 53 Iowa 474; Nashville Labor Temple v. Nashville, 243 S.W. 78; Ryan v. Louisville, 133 Ky. 718; Ill. Central Railroad Co. v. Hodges, 113 Ill. 325; Pittsburgh A. M. Ry. Co. v. Stowe Township, 252 Pa. 155; Wytheville v. Johnson, 108 Va. 589; Staunton v. Mary Baldwin Seminary, 39 S.E. 596; Elmhurst Fire Co. v. New York, 213 N.Y. 91; People ex rel. v. Tax Commission, 246 N.Y. 326; Portland University v. Multnomah County, 50 P. 534; National Metal Box Co. v. Readsboro, 111 A. 388; State ex rel. v. Hannibal St. J. Ry. Co., 97 Mo. 355; Cooley on Taxation (4 Ed.), sec. 1058. (6) The local assessors cannot repeal the franchise. Washington University v. Rowse, 8 Wall. 440; Given v. Wright, 117 U.S. 656. (7) This suit was based upon and set up the former decree as a cause of action.
Appellant makes no showing whatever that any complaint was made at the time said stock was listed for taxation either by an application for a rehearing or that any appeal was taken as required by the refund statute. Appellant claims that the listing of the stock in the Pittsburgh, Fort Wayne and Chicago Railway Company was void, for the reason said company was an Indiana corporation and that said company had paid the taxes on said stock, and an appeal to the circuit court was unnecessary, and cites in support of this proposition Croop v. Walton (1927), 199 Ind. 262-265, 157 N.E. 275; Parkinson v. Jasper County Telephone Co. (1902), 31 Ind. App. 135, 67 N.E. 471; Senour, Treasurer v. Ruth (1894), 140 Ind. 318, 39 N.E. 946; Board v. Tincher Motor Car Co. (1913), 56 Ind. App. 49, 104 N.E. 876; Buckingham v. Kerr (1918), 68 Ind. App. 290, 120 N.E. 422; Board, etc., v. Western Electric (1926), 198 Ind. 417, 153 N.E. 177. It is not necessary for us to decide whether the tax levied upon the stock owned by decedent in the domestic railroad company was void or otherwise, for the conclusion as far as this case is concerned would be the same. It will be noted that all the cases above cited, except the cases of Board v. Tincher Motor Car Co., supra, and Board, etc., v. Western Electric, supra, are suits to enjoin the collection of alleged illegal taxes. It was said by this court in the recent case of Board of Commissioners of Marion County v. Millikan (1934), 207 Ind. 142, 151, 190 N.E. 185, where the identical question was considered, that:
Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360; Granite Trading Corp. v. Harris, 4 Cir., 80 F.2d 174, 176; Coca-Cola International Corp. v. New York Trust Co., 24 Del. Ch. 163, 8 A.2d 511, 524; Bragg v. Bragg, 32 Cal.App.2d 611, 90 P.2d 329, 330. Croop v. Walton, 199 Ind. 262, 157 N.E. 275, 278, 53 A.L.R. 1386; McDowell v. Friedman Bros. Shoe Co., 135 Mo.App. 276, 115 S.W. 1028, 1033; United States v. Knight, D.C.Mont., 291 F. 129, 133. Here, the taxpayer by his own testimony regarded Denver as his permanent home and he had a definite, present intention of returning to Denver, when he had acquired sufficient experience and background to qualify him, in his opinion, actively to participate in the management of the Gates Rubber Company. The event upon which his return was dependent was one he reasonably anticipated would occur and was not an indeterminate or floating intention.
This doctrine maintains, generally, in the absence of a statute or of peculiar facts forcing a different conclusion. Cooley, Taxation, 4th Ed., ยง 440; Union Refrigerator Transit Co. v. Commonwealth of Kentucky, 1905, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150, 4 Ann.Cas. 493; Buck v. Beach, 1906, 206 U.S. 392, 27 S.Ct. 712, 51 L.Ed. 1106, 11 Ann.Cas. 732; Blodgett, Tax Commissioner of the State of Conn., v. Silberman, 1928, 277 U.S. 1, 48 S.Ct. 410, 72 L.Ed. 749; Croop v. Walton, 1927, 199 Ind. 262, 157 N.E. 275, 53 A.L.R. 1386. No such statute has been called to our attention and no such facts are disclosed by the stipulation. It must, therefore, be concluded that the situs of the stocks and bonds sold by the appellee was in this state, where he was domiciled.
Domicile means the place where a person has his true, fixed, permanent home, and principal establishment, and to which place he has, whenever he is absent, the intention of returning. State Election Bd. v. Bayh (1988), Ind., 521 N.E.2d 1313; Croop v. Walton (1927), 199 Ind. 262, 157 N.E. 275. Domicile is of three kinds: domicile of origin or birth, domicile by choice (which has for its true basis or foundation the intention of the person), and domicile by operation of law. Id.