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If we have given a correct definition of the term "election district," then it is clear, that no citizen has a right to vote at any election, unless he has resided in the ward, township or district where he offers his vote, at least ten days preceding such election; and it is equally clear, that he must vote in the ward, township or place where he resides at the time the election is held.* If he has lost his residence in a ward, township or district, by a removal, although he has not obtained another, still he cannot return to his last place of inhabitancy, and claim the right of voting, because the law and the constitution require that he shall vote in the election district where he shall have resided ten days immediately preceding the election; and the loss of three days' residence is as effective, as to his legal rights, as three hundred. There can be but one place of domicil, which is instantaneously acquired, and when once attained, all others are terminated; nor can any vestige of the last residence be retained for election purposes.
It has been strenuously contended, that no citizen is to be disfranchised, that the right of an elector, so dear, is not to be taken away by a mere change of residence from one side of a street to another. Perhaps, it is a sufficient reply to this argument, to say, that the constitution gives this right to an elector, on three conditions: one is, that he shall have resided in the state one year; the second, ten days in the election district where he offers his vote, immediately preceding the election; and the third, that he has paid a state or county tax within two years. Now, if a citizen violate either of these conditions, his right to vote at that election is taken away by his own act: man is a free agent for most purposes; if, therefore, he should choose not to pay a tax for two years, and deprive himself of the elective franchise, can he censure any one but himself? If it suit the convenience of an elector, or he find it for his interest, to remove from one ward to another, less than ten days previously to an election, and
* See Commonwealth v. Kuntzman, 41 Penn. St. R. 429.
thereby deprive himself of a vote, can he complain of injustice, if his vote be refused in the district he has just left, and in the one to which he has removed, but where he has not had a residence of ten days? surely not; he violates one of the conditions of the constitution, to which he has subscribed, that gave him the original right.*
This the court believe to be the law, and a proper construction to be put upon it, for the purpose of preventing any avenue to fraud or imposition being opened, and most clearly we should be doing violence to the constitution and the law, to give any other opinion. The language is clear and unambiguous, and in our opinion, admits of no other fair interpretation; it has been framed in wisdom, nor would we change its provisions if we had the power to do so. The elector has all the privileges which any reasonable being could ask; he may remove within the ten days before an election, and lose his right to give a vote, if he please-if the advancement of his interest or convenience be more dear to him than the right of voting for public officers. Any other decision might open wide the gate for illegal voting, which would sully the purity of the ballot-box; the people have endeavored, by clear statutory provisions, to protect it from fraud or dishonor, and covered it with a protecting shield, and we are not disposed to suffer its sanctity to be invaded. On the contrary, we will give every fair interpretation to the law, which is calculated to guard it with firmer bars and stronger locks, if possible; public justice demands this, from those entrusted with the administration of the law.
The next inquiry is, had Thomson lost his residence in the Sixth ward, before the day of election? It is clear, that down to the 11th of March last, he resided in the Sixth ward; that for a few days before, he had been removing his effects into Penn township; he testified, that his family slept, for the last time, in the house he had occupied in the Sixth ward, on Monday night, the 11th;
* See State v. Adams, 2 Stew. 239.
on the 12th, he gave the key of the house to the owner (although he was compelled to pay rent to the 5th of April); and the election was held on Friday the 15th of March. He further testified, that he owned a mill in the Sixth ward, and carried on his business therein as a manufacturer of plaster; that from the 11th until after the 15th, his family slept in Penn township; that neither himself nor family slept at the house he had occupied in the Sixth ward, after the 11th; that on the night of the 12th, he lodged with his family in Penn township. On Wednesday night, he said, he was at work in his mill in the Sixth ward; on Thursday, he was at the mill, and part of the time asleep, and staid at his mill for the purpose of attending to his business, and did not stay for any other purpose; was often up all night, as it was too far from his residence to go from one place to another, without interfering with his work. He also testified, that from the 11th to the 15th of March, he took his meals at different places, sometimes at his own house in Penn township, at others, in the Sixth ward, and sometimes in the Fifth ward; and the reason he assigned for taking his meals away from his own house, was, in consequence of the distance; that it was too far to go home from the mill; that his wife and children lived and slept entirely in Penn township; he said, he had always lived with them, unless separated to attend to his business. From the testimony of Thomson himself, it is manifest, that he had lost his residence in the Sixth ward of the Northern Liberties, before the 15th of March, the day of election. It is equally clear, that for all legal purposes, he had gained a residence, was domiciled in Penn township, on the 12th of March, three days before the election; he was as much an inhabitant of Penn township after the 12th of March, as if he had lived there for three years, for all but election purposes.
No principle is better settled, than that residence is a question of intention. It was decided by this court, in the case of James Casey, an insolvent debtor, that in
cases involving the question of residence, the inquiry is, the mind with which a party moves to or from a state. 1 Ash. 126. The determination of this question depends entirely upon the fact, whether the individual has gained or lost a residence. There must be an actual removal to lose a residence; a mere intention to remove, not consummated, can neither forfeit the party's old residence, nor enable him to acquire a new one; the intention must be followed by an actual removal. Hence, if there be an intention to remove, for the purpose of acquiring a new domicil, and an actual removal, with a design of effectuating that intent, then the old residence is lost and a new one is acquired; and such I conceive to be the case before us.
Thomson began to remove his effects to Penn township, before the 11th; on the morning of the 12th of March, he continued that removal; and on the evening of the 12th, we find him in Penn township, with his family, where he lodged with them, and where his wife and children have continued to reside ever since; this was three days before the election. His residence in the Sixth ward was as completely lost, on the day of the election, as though he had been absent for a year; true it is, he had not obtained the right of voting in another place, because he had not been in Penn township ten days; but whose fault was it that he lost his vote? It was his own. If he wished to continue to enjoy the privilege of an elector, he should have removed ten days before the election, or delayed the act until after the 15th of March; it was a right which he was at liberty to surrender, if he chose. His domicil was fixed in Penn township; the evidence is, that it was his intention to remove from the Sixth ward; that intention was effectuated by an absolute removal on the 12th, and for all legal purposes was complete and perfect. He could have but one domicil; his residence could be in but one place; and his residence in the Sixth ward was as completely ended, when he left that ward on the 12th of March, as if he had removed across the river to Camden.
Suppose Thomson had started, with his family and effects, for New York, in the train of cars, on the morning of the 12th of March, had arrived there the same evening, put his family into a house and continued with them during the night, and come back here on the 15th, the day of the election, I apprehend that no one would seriously contend that he could legally have given his vote. During the interval, his property in the Sixth ward would have been liable to a foreign attachment for his debts, if he had any; and why? because he was the inhabitant of another state; he was domiciled there; his intention to leave the state had been effectuated by an actual removal. The case of Lyle v. Foreman, 1 Dall. 480, is full on this point; United States v. The Penelope, 2 Pet. Ad. 450, contains the same principle.
In deciding the question of domicil, as to an elector's removing from one part of the state to another, or from one township to another, these rules are applicable. The framers of the constitution, in 1838, and the legislature, when passing the act of 1839, were perfectly aware that the question of residence was fixed by repeated decisions in this country and in England, and they intended that the elector should have a fixed, certain abode in a district, township or ward for ten days; and that he should be. permitted to vote where he then actually resided, and nowhere else. In our opinion, the residence of Charles Thomson was in Penn township when this election was held; he had no legal right to vote in the Sixth ward of the Northern Liberties, on the 15th of March last; and the officers of the election performed their duty correctly, when they rejected his vote.
Another ground presented for setting aside this election is, that one William McDonald was permitted to vote, who, it is alleged, was an illegal voter. It appears from his deposition, that he was born in this state; that he had been a sailor for twenty years; that he entered the service of the United States, went to the Mediterranean,