(dissenting). I am not able to agree with the conclusion reached by the majority that a person who is placed on probation after having been convicted of crime, may, during the probationary term, effectively change his legal residence so as to gain legal settlement at a new location.
A probationer, like a prisoner in a penal or corrective institution, is held in the legal custody of the authorities. In-the case of the probationer such custody is constructive. With the prisoner, the custody is actual. In the matter at bar¡ Joseph Davidson in his application for probation was obliged to agree that: “I shall remain in the legal custody of the State Department of Public Welfare, Division of Corrections, until informed in writing that I am discharged from further supervision.” Wisconsin Administrative Rules-and Orders (1942 ed.), p. 351, Rule 1 Corr.
The statutes provide that in case the conditions of probation are violated, the current probation and all subsequent consecutive probations shall be revoked. Sec. 57.01 (1), Stats. Except as provided in sec. 57.025 (probation in Mil*550waukee county) every probationer in the custody of the department (Department of Public Welfare) shall be subject to the control of the department under regulations applicable to paroled persons. Sec. 57.02.
Since a probationer is in the legal custody of the state, he is necessarily under disability and is restrained in the exercise of choice. A probationer is entirely subject to the direction of the department at all times during the term. The granting of permission to a probationer upon his request to work and live in a place other than that where he had resided and pursued an occupation before probation, in legal effect is not to be distinguished from the granting of leave to one who is in a penal or corrective institution to change quarters or work there. Either of such arrangements may, of course, be permitted by the grace of the custodian, but it is subject to modification or termination at the pleasure of the custodian at any time. While it may be said that such change involves a certain amount of volition on the part of the probationer or prisoner, nevertheless the change, if permitted, is the result of direction on the part of the custodial authority.
Probation is a substitute for imprisonment. It is a conditional suspension of sentence. It is applied on the theory that if'allowed to retain his liberty, and be at large among the people under regulations and supervision, the convicted person will not engagq in a criminal course of conduct. See People v. Robinson (1931), 253 Mich. 507, 235 N. W. 236. Probation merely grants grace to a guilty person with the evident purpose of helping him to reform, and he is not a free man but is subject to restraint and conditions imposed by the court during his temporary freedom. The probationary period may be compared to a sentence term, as each is in reality an expiation of the crime. State ex rel. Gordon v. Zangerle (1940), 136 Ohio St. 371, 26 N. E. (2d) 190. The probationer is not a free man, but is subject to surveillance, and to such restrictions as the court may impose. Cooper v. United States (5th Cir. 1937), 91 Fed. (2d) 195, 199.
*551Change of residence in so far as it affects legal settlement must be voluntary. In 17 Am. Jur., Domicil, p. 606, sec. 27, it is said:
“To acquire a domicil of choice there must be a voluntary change of residence by a person free from restraint and capable of acting for himself. As a general rule of law, persons under legal disability or restraint or persons in want of freedom are incapable of losing or gaining a domicil by acts performed by them under the control of others.”
In Millett v. Pearson (1919), 143 Minn. 187, 189, 173 N. W. 411, it was said:
“As a general rule of law persons under legal disability or restraint or persons in want of freedom are incapable of losing or gaining a residence by acts performed by them under the control of others. There must be an exercise of volition by persons free from restraint and capable of acting for ••themselves in order to acquire or lose a residence. A person imprisoned under operation of law does not thereby change his residence.”
It thus appears that since any exercise of choice by a probationer to change his place of living during the term can result only as a matter of grace on the part of the custodial authority, and that since such change, if made, is actually by direction of the authority, it cannot'be said that the change is voluntary. If a probationer is not able to acquire or lose a domicile by any change on his part while in legal custody of the department, his residence remains as it was when probation commenced.
The appellant, Marathon county, maintains that if Joseph Davidson’s residence was not voluntary in Milwaukee county, which was the place to which he moved with his family during the probationary term, with permission of the department, then his technical residence in Marathon county was not voluntary either, for the reason that he could not exercise choice in changing it, and, therefore, he could not gain legal *552settlement in Marathon county during the term. It is true that Davidson left Marathon county immediately after he was placed on probation, and it is conceivable that he did not intend to return to Marathon county. The fact is that he did not return. However, under the authorities referred to herein, it appears that he did not have'the capacity to change his residence from Marathon county while he was on probation despite any intention that he may have had to do so, and despite his absence from that county during the term.
Legal settlement under sec. 49.02 (4), Stats., depends, among other conditions, upon continued residence for at least a year without participation in public aid. Davidson had not acquired settlement in Marathon county during his residence there before he was placed on probation because of the aid which he had received. However, during the probationary period his residence there, which he could not change, did continue for more than a year without his receipt of aid. He was not in a position to repudiate legal settlement in Marathon county, nor was there any way whereby Marathon county could stop legal settlement from ripening. Legal settlement follows as of course when the qualifications therefor exist.
Counsel for Marathon county have proposed the hiatus theory — a suspended period — a break in the connection — with reference to the ability of a probationer to acquire or change legal settlement during the probationary term. They suggest that the situation is analogous to that of a citizen who when moving from one place to another may be deprived of voting privileges. However, in such case the citizen may not be entitled to vote in the place of his new residence because he has not resided there for a sufficient period of time. He may not, of course, vote at the place of his old residence because he had given that up. For instance in sec. 6.51 (5), Stats., it is declared: “If a person removed to another state with an intention to make it his permanent residence, he shall be considered and held to have lost' his residence in this state.”
*553There is no similarity of such situation in the matter at bar. Here the residence is continued at the place where it existed when probation was imposed. The legislature has not provided that qualifications for legal settlement are to be suspended during the period in which a person is on probation. I am obliged to conclude, as did the trial court, that while probation destroys the ability to initiate a change of legal settlement, it does not prevent the consummation of change commenced before probation.
The judgment of the lower court ought to be affirmed.
I am authorized to state that Mr. Chief Justice Fairchild joins in this dissent.