(dissenting). This case was tried on the issue of whether Goldie Carden had the necessary intention to maintain a residence in Milwaukee county for one whole year so as to gain a legal settlement under sec. 49.10 (4), Stats. The majority opinion holds that a person who no longer has an intention to make Milwaukee her residence and is not physically present in the county nevertheless gains a legal settlement in that county if she has not acquired a domicile elsewhere. The cases previously decided by this court do not so hold.
The question is simply the meaning of the language “who resides in any municipality . . . one whole year” in sec. 49.10 (4), Stats. In construing sec. 49.10, this court as *298early as Waushara County v. Calumet County 1 stated the meaning of residing or residence for legal settlement purposes was governed by the same principles which determine residence for divorce and voting purposes. This concept of residence was affirmed in Milwaukee County v. State Department of Public Welfare.2 Two months later in Carlton v. State Department of Public Welfare3 relied on by the majority, this court in considering the nature of the intention necessary for residence to ripen into a legal settlement stated it was “residence with the present intent of making the place one’s home,” and in that context equated residence with domicile as generally used by the courts. The opinion stressed that “resides” meant more than “lives in” or exists and nothing short of actual abode with intention of permanent residence would fulfil the statute. This intention to remain in a fixed habitation is necessary to establish domicile which the court said is the meaning of “resides” in the statute. The statute requires such residence for one whole year which to me requires the actual intention to exist for one whole year, not for a fragmentary period of time sufficient to qualify for the establishment of a domicile. The majority substitutes for this requirement a rule of conflicts of law that once a person has acquired a domicile he does not lose it until he acquires another.
Marathon County v. Milwaukee County 4 relied on by the majority, did not decide this point as relating to legal settlement. The issue in that case was whether a person had a legal settlement in Marathon county. He had resided there four months, and then moved to Milwaukee where he lived some four years. The disputed point over which the court was divided was whether or not a person on parole had the *299legal capacity to formulate an intent to change his residence. This court held a residence could and had been established in Milwaukee by the parolee before his Wausau residence ripened into a legal settlement. The well-known rule a domiciliary residence once established is not lost until a new one is acquired has no application to the statutory requirements for establishing a legal settlement so as to render a county liable for public assistance. I cannot agree that sec. 49.10, Stats., means one can establish legal settlement by counting as part of the one-year period the time during which the person neither has the intention to remain nor any physical presence in the county.
It is significant that sec. 49.10 (7), Stats., provides every legal settlement continues until it is lost by voluntarily acquiring a new one in this state or by voluntarily residing for one whole year elsewhere than in the municipality or county in which such settlement exists. This section does not speak in terms of losing or acquiring a domicile but of one whole year residence. This language prevents the importation of the law of domicile and conflicts of law into the statute by reference and analogy. In my opinion the evidence sustains the conclusion of the department that Mrs. Carden did not have the requisite intention to gain a legal settlement for “one whole year” and I would affirm.
(1941), 238 Wis. 230, 298 N. W. 613.
(1955), 271 Wis. 219, 72 N. W. (2d) 727.
(1956), 271 Wis. 465, 74 N. W. (2d) 340.
(1956), 273 Wis. 541, 79 N. W. (2d) 233.