This was an action instituted by plaintiff, in behalf of himself and other taxpayers’ in the proposed special-tax school district to be established in Gilkey Township of Rutherford County, said district being known as the “Edwards” School District, numbered 14-3, to enjoin the commissioners of Rutherford County from declaring an election held in said district as having adopted the special tax voted upon at said election, and to enjoin said county commissioners from levying said tax.
At said election it appears that there were 23 voters registered, and that on election day, after the polls were opened, the name of ~W. C. Mitchum, who had registered, was stricken from the registration book by the judges of the election (page 21), thus leaving 22 names on the book. It appears that 12 votes were cast in favor of the special tax, but the vote of Fred Pendergrast, which was admitted to be illegal, and so found by the jury, which was cast in favor of said tax, should be deducted from said 12 votes, thus leaving only 11 legal votes having-been east in favor of said tax.
Defendants claim that the vote of J. L. Tickers, who was duly registered, should not be counted against said tax, on the ground that he had not paid his poll tax for the year 1918 on or before 1 May, 1919, and they contend that'this vote should be deducted from the registered names of voters, reducing the number of qualified registered voters, as defendants claim, to 21. Plaintiff claims that Tickers’ vote should be counted against said tax, because he tendered payment of his poll tax in ample time, and the sheriff refused to receive it.
Defendants claim that the name of "W. C. Mitchum was properly erased from the registration book, because he was not a resident of the school district when the election was held. Plaintiff claims that the election officers unlawfully and wrongfully erased Mitchum’s name from the registration book, (1) because he having been regularly registered for said election, the election officers had no right to erase his name; (2) because Mitchum was a resident of said school district, and a legally qualified voter therein; and (3) because his name had been erased without notice to him and without his knowledge, approval, or consent, after the polls had been opened, and while the election was being held.
*570"With, tbe votes of Tickers and Mitcbum botb counted as against tbe tax — neither of tbem voted, and tbeir votes would necessarily count against tbe tax — tbe result of tbe election would be a tie, and the tax would be defeated, a majority of tbe qualified registered voters not having voted for tbe tax.
1. We are of opinion, upon tbe evidence, if it is believed, tbat tbe name of W. C. Mitcbum was improperly stricken from tbe registration books. There was evidence tending to prove tbat Mitcbum bad not abandoned bis borne; tbat be was temporarily absent on business; tbat be did not move bis personal property; tbat be took only such as was necessary; tbat be bad taken a logging contract which would keep him absent several months.
Mitcbum testified as follows: “When I moved down to Bostic it was not my intention to give up my residence in tbe Edwards School District, not naturally for my temporary job; I rented tbe land expecting to come back, and did not want to lay out; I worked on tbe logging job from November up until March, when shut down and contract not finished; when they were talking of shutting down, I went to Grilkey Township and went to tbe fellow I-rented tbe land to and tried to buy out tbeir grain crop, but they would not sell; after tbe sawmill shut down I bad to go to work to support my family, but I made an effort to get back borne.” Mitcbum is corroborated, as to bis intention of leaving only temporarily, by W. H. Small, who testified: “I bad a conversation with him (Mitcbum) about tbe time be moved to Bostic; I tried to buy bis land and mules; be said be did not care to sell, and I asked to buy bis corn and household and kitchen furniture, and be said No’; tbat be was going to move a batching outfit; tbat be did not expect to be down there long, tbat it was not permanent.”
If tbe evidence is believed to be true, it indicates conclusively tbat Mitcbum did not intend to change bis residence when be went to Bostic. He went to Bostic, animum, revertendi. He was there temporarily to carry out a logging contract. He was a mere sojourner at Bostic, without tbe intention of making it a permanent borne. He could not vote at Bostic for tbat reason. 15 Cyc., 291. Domicile is tbe place where a person lives or has bis borne, and to which, when absent, he has tbe intention of returning. Hannon v. Grizzard, 89 N. C., 120; Boyer v. Teague, 106 N. C., 576; Norris v. Gilmer, 129 U. S., 315; Reynolds v. Cotton Mills, 177 N. C., 412.
We are of opinion tbat tbe court should have instructed tbe jury as requested by tbe plaintiff.
“1. Tbat if tbe jury find from tbe evidence, by tbe greater weight thereof, tbat tbe witness W. 0. Mitcbum left tbe Edwards School District for tbe specific purpose of carrying out a logging contract with tbe *571defendant, G-. E. Morgan, and that at tbe time be left said school district be bad tbe intention of returning to said Edwards School District after be bad accomplished and completed said logging contract, then tbe court charges you that tbe said "W. C. Mitcbum did not lose bis residence in tbe Edwards School District, and having paid bis poll tax for tbe year 1918, on or before 1 May, 1919, be would be a registered qualified voter in said district, and you should answer tbe second issue ‘Ves.’ ”
Tbe court directed tbe jury to answer tbe third isáue “No,” bolding that J. L. Vickers was not a qualified registered voter. Upon this issue bis Honor charged tbe jury as follows:
“The court charges you that if you believe all tbe evidence in this case you will answer tbe last issue No.’ Tbe evidence seems to be that Vickers was a soldier in tbe war; that be bad registered, and tbe question of paying poll tax arose. That tbe county commissioners and everybody bad kind feelings for every boy in service, and it was discussed by a great many of tbe commissioners, and some of them made an order that tbe boys should be exempt from poll tax. Of course they bad no legal right to make such an order. Mr. Vickers, tbe father of tbe boy, came to town for tbe purpose of paying tbe tax, and tbe court understood him to say be went to tbe sheriff, and tbe sheriff went into tbe office and looked at tbe book and told Mr. Vickers that tbe county commissioners bad exempted bis boy from paying poll tax; and Mr. Vickers told tbe sheriff be bad come to pay it and wanted to pay it, and bad come for tbe purpose of paying it, and stated be bad money in tbe bank that bis son bad sent him to pay it, and that be was ready and willing to pay it, and tbe sheriff told him tbe county commissioners bad exempted bis son. Tbe court is of tbe opinion that that was not a legal tender, so if you believe all of tbe evidence you will answer tbe third issue ‘No/ that be was not a qualified voter because be bad not paid bis poll tax prior to 1 May, 1919.”
In' our opinion, according to tbe evidence, there is a legal tender of tbe poll tax, and tbe sheriff was in error to have refused it. Tbe father bad tbe right to tender tbe poll tax for bis son, who was a registered voter, but absent in tbe service of tbe Government. Tbe father testified that be bad tbe money to pay tbe taxes ready; that be bad put in tbe money in tbe bank that day; that bis boy bad sent it to him, and that be was ready and prepared to pay it. Tbe sheriff having refused to receive it, the father was not required to go through tbe ceremony of taking out tbe money and presenting it to tbe sheriff. There is eminent authority for tbe position .that tbe absent soldier was exempted from tbe payment of poll tax in tbe opinion of tbe Attorney-General, Judge Manning, formerly a distinguished member of this Court, in an opinion of 13 April, 1920, in which he says: “This office has ruled with refer*572ence to soldiers’ who were in France or Germany, or in service in the various camps throughout the country at the time for listing poll tax in 1919, that they may vote without paying the poll tax for 1919. These soldiers, either by their sense of obligation to their native country, or by compulsion of the Federal Government, were, in their service to that country, placed in such a position that they could neither list nor pay these taxes. It would, it seems to us, be manifestly inequitable and unjust to deprive them of their right to vote under such circumstances.”
We are indebted greatly to the learned and able brief of Mr. Gallert in the preparation of this opinion.
New trial.