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In the Quarter Sessions of Lehigh County, Pennsylvania.


(REPORTED 28 Legal Intelligencer 229.)

[Acquisition of domicil.]

Residence, within the meaning of the constitution, as a legal qualification of an elector, is synonymous with domicil, and means the place of a person's permanent abode.

A student at college, who has a domicil of origin, and resides at the institution for the sole purpose of education, does not thereby acquire the right to vote in the district in which the college is located.

The election officers are not concluded by the oath of the person offer. ing to vote, as to the question of domicil; they have a right to determine the point from all the facts and circumstances of the case.

This was a proceeding to contest the election of George R. Roth and George Fry to the office of common councilmen of the Second ward of the city of Allentown. The facts are fully stated in the opinion of the court.

Wright, Harvey and Stiles, for the contestants.

Wood and More, for the respondents.

LONGAKER, P. J., delivered the opinion of the court. The question involved is, whether or not certain students of Muhlenberg college, who voted in the Second ward of this city, at the October election, were qualified electors. Their qualification is denied, upon the allegation that they had not obtained a residence within that ward, as prescribed by the constitution of this commonwealth. The constitutional provision is as follows: "in elections by the citizens, every white freeman of the age of twenty-one years, having resided in the state one year, and in the election district where he offers to vote, ten days imme

(Acquisition of domicil.)

diately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the right of an elector:" "white freemen, between the ages of twentyone and twenty-two, being citizens, and having a residence as aforesaid, shall be entitled to vote without the payment of taxes." What, then, is residence within the constitutional meaning? is it synonymous with domicil, or is it used in a more restricted signification?

The word residence occurs in several statutes, and has received judicial interpretation, but unfortunately, the constitutional signification of this word has never been judicially declared by the supreme court of this commonwealth. The statutory signification (in Commonwealth v. Graham, 51 Penn. St. R. 258, a case arising under the statute of limitation barring a criminal prosecution) is said to be, "to dwell permanently for any length of time-to have a settled abode." In Commonwealth v. Jones, 12 Penn. St. R. 371, a proceeding by writ of quo warranto, alleging that the defendant, when he was elected mayor of the city of Philadelphia, was a non-resident, by reason of exercising the office of president of Girard college, and in the discharge of the duties thereof, residing at the college, in the then county of Philadelphia, the office having been conferred by the city, it is said, by Chief Justice Gibson, "the doctrine seems to be, that if the office were irrevocably conferred for life, the law fixes the domicil at the place where the functions are to be performed, but that if it be temporary or revocable, the presumption is against a change." (Phillimore on Domicil 61-2.) "The residence of a federal officer in the District of Columbia was never thought to operate so as to forfeit his residence at his last domicil." 12 Penn. St. R. 371. In Guier v. O'Daniel, 1 Binn. 349 n., it is held, that a domicil may be defined, a residence at a particular place, accompanied with positive or presumptive proof of continuing it an un

(Acquisition of domicil.)

limited time, and is the conclusion of law, on an extended view of facts and circumstances.

In the United States courts, the word residence has received frequent judicial construction. In Cooper v. Galbraith, 3 Wash. C. C. 546, it is held, that "residence and domicil are synonymous." In United States v. The Pene-. lope, 2 Pet. Ad. 450, it is said, that "an inhabitant or resident is a person coming into a place with an intention to establish his domicil or permanent residence, and actually executing that intention, by taking a house or lodg ings, opening a store or the like." In White v. Brown, 1 Wall., Jr., 217, it is held, that "in order to acquire a domicil of choice, the fact of residence must be coupled with an intention to abide an indefinite time, or to make the place a home."

An intention to remain permanently or for some indefinite time, is essential to make the place of a party's residence his domicil. State v. Daniels, 44 N. H. 383. Absence from one's domicil for a temporary purpose with an animus revertendi will not change a domicil. Risewick v. Davis, 19 Md. 82. A student at a college does not change his domicil by his occasional residence at the college. Granby v. Amherst, 7 Mass. 1. The intention to abandon a domicil, and an actual residence at another place, if not accompanied with an intention of remaining there permanently, or at least for an indefinite time, will not produce a change of domicil. Jennison v. Hapgood, 10 Pick. 77. In Roosevelt v. Kellogg, 20 Johns. 208, where there was a plea of discharge under the insolvent act, it was held, that the words "resident and inhabitant were synonymous." 2 Kent's Com. 431, n. (citing also 8 Wend. 140; 4 Wend. 603), declares that the words "inhabitancy and residence mean a fixed and permanent abode, a dwelling-house for the time being, as contradistinguished from a mere temporary locality of existence." In Frost v. Brisbin, 19 Wend. 21, it is said, "to constitute residence within the legal meaning of the term, there must be a settled or fixed abode, an

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(Acquisition of domicil.)

intention to remain permanently, at least for a time, for business or other purposes." It will thus be seen that the authorities in this state, in the United States courts, and in the courts of our sister states, preponderate almost unanimously in favor of the construction, that residence is synonymous with domicil.

It is true, that only one of the many authorities cited involved directly the residence of a student (Granby v. Amherst, 7 Mass. 1); and that, not upon the privilege of voting, but upon the question of a pauper's settlement. Some of these cases involved the distribution of a decedent's estate, some the seizure of property under the attachment laws, others the right of discharge from arrest for the non-payment of debts, and one the privilege to hold and exercise the office of mayor of the city of Philadelphia. Questions involving personal liberty, the right to office, and the seizure and distribution of property, are quite as important as, if not paramount to, the question which determines the residence of an elector.

It is quite remarkable, that of all the adjudicated cases cited by the learned counsel on either side, but one has been found which involved the right of a student to vote, while residing in the district for the purpose of pursuing his studies, and that is the case of Putnam v. Johnson, 10 Mass. 488, decided in 1813. That case decides, "that Israel W. Putnam, a student at the theological institution of Andover, being of age, and otherwise qualified according to the constitution, and being also emancipated from his father's family, is entitled to vote." An examination of this case shows that Putnam was twenty-five years old, that he graduated at Dartmouth College in 1809, that he then went to Salem and resided there as a student-at-law until April 1813, that while at Salem in 1810 and 1811, he was assessed, paid taxes and voted, that since his graduation he had supported himself, acquired property and was separated from his father's family, that in April 1813, he changed his intention, by abandoning the law and going

(Acquisition of domicil.)

to the Andover theological seminary to prepare himself for the ministry. This case was decided under the following clause in the constitution of Massachusetts: "To remove all doubt concerning the word inhabitant in this constitution, every person shall be considered as an inhabitant, for the purpose of electing or being elected into any office or place within this state, in that town, district or plantation where he dwelleth or hath his home." Some time prior to 1844, the constitution of Massachusetts was amended, making the elector's qualification an act of residence, and in that year, upon an address from the house of representatives (5 Met. 689), inquiring as to the right of a person to vote who resided at a public institution for the sole purpose of obtaining an education, the justices of the supreme court said: "Inhabitant,' mentioned in the original constitution, and, 'one who has resided in the district,' as expressed in the amendment, designate the same person, and both of these expressions, as used in the constitution and amendment, are equivalent to the familiar term domicil, and therefore the right of voting is confined to the place where he has his domicil, his home or place of abode." "His residence will not give him the right to vote at the college, if he has a domicil elsewhere." Chase v. Miller, 41 Penn. St. R. 420 (as a dictum), declares that "the primary signification of the word residence, as used in the constitution, is the same as domicil, a word which means the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights."

A full review of these decisions leads to the conclusion, that the constitutional qualification of the elector, as regards his residence, means domicil. This construction is highly favored by the context of the constitutional clause, wherein it prescribes not only residence, but assessment and the payment of taxes. As regards these latter qualifications, the constitution is to be primarily interpreted in pari materia with the assessment and tax laws

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