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Bob Ferguson

AGO 1956 No. 252 - Apr 24 1956
Attorney General Don Eastvold


"Domiciliary residence" means domicile.  The legislature intended the 1953 act to be retrospective.  The director of public institutions may not refuse the return of Washington residents confined in mental institutions without the state of Washington.
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                                                                   April 24, 1956

Dr. Thomas A. Harris
Department of Institutions
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 252

 Dear Sir:

             Your letter of April 11, 1956, previously acknowledged, requested our opinion on three questions affecting the deportation of nonresident insane persons and return of Washington residents committed to mental institutions in other jurisdictions.  Your questions are as follows:

             1. What interpretation is to be given to the words "domiciliary residence" found in RCW 71.04.280 (1955 Supp.)?

             2. Did the legislature intend the 1953 act to be a retrospective statute which would extend the rights of insane persons confined at that time and allow them to qualify as Washington residents, although they could not have so qualified under the wording of the 1921 law?

             3. Has the director of public institutions discretionary powers in the matter of the return to Washington of persons confined in mental institutions in other jurisdictions?

              [[Orig. Op. Page 2]]

            Our answer to question 1 is found in the analysis; question 2 is answered in the affirmative; and question 3 in the negative.


             1. The word "domiciliary" is defined in Black's Law Dictionary, fourth edition, page 572, as follows:

             "Pertaining to domicile; relating to one's domicile.  Existing or created at, or connected with, the domicile of a suitor or of a decedent."

             Domicile is defined in the same works as:

             "That place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. . . ."

             Our supreme court in Sasse v. Sasse, 41 Wn. (2d) 363, 366, made the following statements:

             "The domicile, once established, continues until it is superseded by a new domicile. . . .  The fact of temporary absence from the domicile, of itself and without any intention to change domiciles, does not result in its loss or change."

             In re Lassin's Estate, 33 Wn. (2d) 163,168, presented a factual situation wherein a person went to and remained in Alaska for a period of eighteen months because of work.  Our court said that this had no effect upon his domicile in Washington and cited supporting cases.

             We conclude that a person is a "domiciliary resident" of the State of Washington when there is evidence that he has established his domicile in this jurisdiction, and that he so remains until there is clear evidence that he intended to and did establish a new domicile.  This opinion also  [[Orig. Op. Page 3]] conforms to the wording of paragraph 2, RCW 71.04.280 (1955 Supp.).  The same paragraph also provides that time spent in a mental institution does not affect a person's residence.

             2. The legislature clearly intended that those persons previously confined and unable to avail themselves of the benefits of being Washington residents under § 2, chapter 158, Laws of 1921, be included among those affected by the 1953 act.  A reading of RCW 71.04.280 (1955 Supp.) finds the following wording:

             ". . . return of any resident of Washingtonnow or hereafter confined in a hospital for the insane, feeble‑minded, or epileptic in another state. . . ."  (Emphasis supplied.)

             It is evident that, at the time of enactment, the legislature meant to include residents of Washington already in mental institutions in other states, as well as those subsequently committed.

             3. We are of the opinion that the act does not vest in the director any discretionary powers.  The word "may" as used in RCW 71.04.280 (1955 Supp.) does not indicate that the director may or may not permit the return of a Washington resident.  It merely authorizes the director to give written permission if that is necessary for the purpose of, as the statute states, "facilitating the return of such persons."  It is but one authorized method of carrying out the mandate of the statute.  Every citizen of the State of Washington has a vested right to the protection and privileges afforded by the constitution and statutes of this state.

             We hope the foregoing analysis will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General