MCDANIELS' CASE.

In the Court of Quarter Sessions of Philadelphia.

MARCH SESSIONS 1844.

(REPORTED 3 PENNSYLVANIA LAW JOURNAL 310.)

[Election districts.]

An election district is any part of a city or county, having fixed boundaries, within which the citizens residing therein must vote; as, for example, a ward in the city of Philadelphia.

To constitute a change of residence from one election district to another, there must be an actual removal.

To reject an illegal vote, it must appear for whom it was polled; it cannot be taken from the majority candidate, unless proved to have been polled for him.

This was a petition contesting the election of the assessor of the Sixth ward of the Northern Liberties; the grounds of contest are fully stated in the opinion of the

court.

Goodman, for complainants.

H. M. Phillips, for respondent.

PARSONS, J., delivered the opinion of the court. This case arises on a petition presented by the requisite number of electors of the Sixth ward of the Northern Liberties, asking us to set aside the election for assessor, held on the 15th of March last, upon the ground that the officers conducting said election rejected the vote of one Charles Thomson, who, it is alleged, was a qualified voter of said ward. It appears from the petition and return, that William Jacobs received 313 votes for the office of assessor, and that William McDaniels received 312 votes for the same office; and it is contended, and, in fact,

(Election districts.)

proved, that Thomson, a man who claimed to be an elector, offered his vote for McDaniels and it was rejected; hence, it is asserted by the complainants, had this vote been received, the votes would have been even, therefore, there was no election by the people. The decision of the case mainly turns upon the question, whether Charles Thomson had a legal right to vote in the Sixth ward, from whence this complaint is made. It is clear, from the evidence, that Mr. Thomson had been an inhabitant of this ward, for at least twenty years past, that he owned real estate there, and had paid a county or state tax within the last year; but it is now contended that, about three days before the election, he had removed into Penn township, and therefore, had lost the right of voting in the Sixth ward.

In the discussion of this case, various questions of law have been raised by counsel, which are deemed of some importance; these we will first dispose of. It is contended, that admitting Thomson removed out of the ward three days before the election, as he had not resided in another for ten days prior to the day when the votes were to be cast for township officers, and obtained no residence therein, he had still a right to vote in the ward where he had last resided, at any election, until he acquired his right to vote by a ten days' residence; that the right of suffrage is not to be lost by a mere change of residence; that the elective franchise, once acquired, is not taken away by a simple removal from one township to another, till a place of residence has been obtained which gives him the enjoyment of this invaluable right to the citizen; while on the other side it is contended, that each county is an election district, and the removal from one ward or township to another, gives to the elector a right to vote wherever his residence is, although he has not been within the same ten days.

A correct solution of these questions depends principally upon a construction of the first section of the third article

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of the constitution, and the 63d section of the act of 2d July 1839, passed immediately after the adoption of the constitution and based upon it. That part of the constitution referred to is in these words: "in elections by the citizens, every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote, ten days immediately 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 rights of an elector." The 63d section of the act of 1839 is as follows: "no person shall be permitted to vote at any election as aforesaid, other than a white freeman of the age of twenty-one years or more, who shall have resided in this state at least one year, and in the election district where he offers to vote, at least ten days immediately 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."

The term "election district," as employed in the constitution and the act above quoted, may be defined to be, any part of a city or county, where its boundaries are fixed by law, either by legislative enactment, or by the adjudication of a court, or other authority to whom this power is delegated, where the citizens, within the boundaries thus established, assemble to vote for public officers, whether their authority is local, or they are to act in governing the affairs of the state or nation. This construction of the law, I think, is fully sustained by a reference to various acts of assembly which were in force when the new constitution was adopted, and which have since been passed.

The act of the 15th of April 1834, relating to townships and township officers, provides that each township in the state may sue and be sued by its known and designated name; it also gives authority to the citizens within the boundaries thereof, annually to elect one assessor, a con

(Election districts.)

stable and other officers that are mentioned in the act, who are to perform certain duties relating to the good government of the township. Other acts of assembly authorize every borough to elect an assessor, divide boroughs into different wards for that purpose, and give the citizens power to elect numerous officers for a proper regulation of their municipal affairs; others give authority to the electors of the various wards in cities to elect assessors, constables, &c., where the territory embraced within such wards has been designated by law. Hence, we decide that these are "election districts;" and it was in reference to such legally-constituted parts of counties or cities, that it was intended those words should apply; it is an expression in common use, and perfectly understood by the people, as denoting any such portion of territory, whether coming under the name of township, borough, ward or district; nor was it intended by the law-making power, to have a more extended application, as I think is manifest from other parts of the act of the 2d of July 1839.

The 51st section of that act provides, that "the election for assessors in the several townships, wards and districts in this commonwealth, shall be conducted under the same regulations as are herein before provided." In this section the term "district" is used; so also in other sections of the same act which will soon be mentioned, and that, in connection with wards and townships, and not designed to have a more extended signification-not intended to embrace a whole city and county. And a residence of ten days was not to be in any part of a city or county, but must be in some "election district," where the citizens had a right to assemble and vote for public officers, and where none could vote but those who had been domiciled within those designated boundaries, for at least ten days immediately preceding the time of holding an election.

Other sections of the act contain almost the same expressions, and denote a similar application, and at all times appear to have relation to election purposes. The

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3d section provides, that the qualified citizens of the several wards, districts and townships shall meet, in every year, at the time and place of holding the election for constable of such ward, district or township, and then and there elect, as hereinafter provided, two inspectors and one judge of elections. The 6th section declares, that the judges of the election, within the limits of their respective wards, districts or townships, shall have power, and are hereby required to decide on the qualification of any person claiming to vote at an election, &c. The 7th section of the same law provides, that when any township has been or shall be divided in forming an election district, the qualified citizens of each part of such divided township shall severally elect, in the manner, and at the time and place aforesaid, two inspectors for each of said several election districts, and shall also elect one person to serve as judge of elections in each district, to perform the duties enjoined by the 6th section of the act.

I am aware that a city or county is authorized by law to elect one or more representatives to the state legislature, a senator or a member of congress; and in some statutes, this is called an election district. It is an election district for that special purpose, but it would be more proper to call it a representative, senatorial or congressional district, and in common conversation, it is generally so denominated; it cannot be said, with any propriety, that it is such an election district as is referred to in the constitution. Would any one seriously contend, that an elector could vote in any part of the county, by reason of his residence in it, simply because it was entitled, under the enumeration of its inhabitants, to elect two members of assembly and a member of congress? If so, then we may call the whole state an election district for the election of a governor (and a man could vote in any part of the commonwealth), with the same propriety, that a city or county is to be denominated an election district, under the constitution or the act of 1839.