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(Acquisition of domicil.)
in force at the time of its adoption; and secondly, pari passu with those now in force, because the constitution plainly permits the legislature to prescribe, at all times, the subjects and rates of taxation. Assessment, at the adoption of the constitution of 1838, and as the statutes now exist, requires the assessor to take an account of the names and surnames of all the taxable inhabitants within their respective wards, townships and districts, and of the real and personal estate of the taxables. The locality of personal property for taxation follows the domicil of the taxable.
Domicil is defined to be a fixed dwelling, or a permanent abode, with a present intention to remain for an indefinite period of time, and is usually the place where a person is engaged in some business, profession or occupation, from the pursuit of which is ordinarily derived the means of support for himself, and where he exercises his civil and political rights. Civil and political rights, on the one hand, confer the privilege of voting, and on the other, impose the obligation of paying taxes, and enjoin the performance of municipal duties. By a residence in a particular district, so as to acquire a domicil therein, every taxable citizen becomes liable to assessment and taxation, liable to assume the offices of constable or assessor, to serve as a juror, and formerly to be enrolled amongst and to be mustered with the militia; in short, he assumes and becomes liable to perform all the municipal duties which commonly devolve upon the inhabitants of that district. The mere act, therefore, of residing in a place for a specific purpose and for a definite time, with no permanent intention of remaining, of making it the seat of property and of incurring a full and unequivocal assumption of municipal duties, does not constitute a residence, within the constitutional meaning of that word. The words "having resided in the state one year, and in the election district ten days immediately preceding the elec
(Acquisition of domicil.)
tion," as found in the constitution, therefore, are to be held as synonymous with having a domicil therein.
Which one of those students who have exercised the privilege of voting, can say, or does say in his testimony, that he came to the Muhlenberg college with the intention of making it his permanent home, his domicil? or that he is here even with a present intention of becoming a resi dent of this city, so as to be subject to taxation by making it the seat of all his personal property, and of taking upon himself a full liability to perform all the municipal duties which devolve upon the permanent residents or inhabitants of this city? Which one was assessed by the assessor, when the permanent citizens were assessed? When did it ever occur to the assessor, while making the usual spring assessments, or to the students themselves, that they were residents of this city, so as to be liable in their persons and personal estates, to assessment and taxation for state, county, school and city purposes? Who, among them, is here with a present intention to assume the office of constable or assessor, to act as a juror, or to make this city the seat of his property? These and the like inquiries are very pertinent, because the rule of law has been, repeatedly, if not universally, declared to be, that a person's domicil is to be determined by his residence at a particular place with positive or presumptive proof of continuing it an unlimited time, and is the conclusion of law on an extended view of facts and circumstances. Guier v. O'Daniel, 1 Binn. 352 n.; United States v. The Penelope, 2 Pet. Ad. 450; 19 Wend. 11; Moore v. Darrall, 4 Hagg. Eccl. 346; Code Civil, Art. 103; Tanner v. King, 11 La. 175; 5 Met. 587; Somerville v. Somerville, 5 Vesey, Jr. 750; Casey's Case, 1 Ash. 126.
The determination of a voter's residence, is therefore a question of fact, and in most cases, one of easy solution. Where the voter is a married man and has been residing in the district ten days or more before the election, with his family, following some profession or occupation, with a
(Acquisition of domicil.)
present intention to make it his home and to remain for an indefinite time, he will have acquired a residence within the meaning of the constitution. Unmarried men who have fully severed the parental relation and who have entered the world to labor for themselves, usually acquire a residence in the district where they are employed, if the election officers be satisfied they are honestly there pursuing their employment, with no fixed residence elsewhere, and that they have not come into the district as "colonizers," that is, for the mere purpose of voting, and going elsewhere as soon as the election has been held. The too frequent practice of importing voters into a district where population is centralized, ten days or more before the election, apparently to meet this requirement of the constitution, for the sole purpose of controlling the election of that district, is a fraud upon its citizens, and whenever the election officers are clearly satisfied that such is the intention of the elector, it becomes their plain duty and right to reject his vote. The mere fact, therefore, that the elector is willing to swear, and does swear, that he considers the district his home, is not sufficient to entitle him to vote, if the facts and circumstances satisfy the election officers that his permanent home or domicil is elsewhere. A person can have but one domicil, but he may have a residence for a specific time and purpose apart from his domicil.
Very few, if any, students while residing at the college, acquire a new home or change of domicil, and they are, therefore, not entitled to vote. In the early history of our colleges, while the true meaning of the state constitution was fresh in the minds of the framers of that instrument, it was never pretended, that the student acquired a residence at the college so as to become a qualified elector, to be liable to taxation and to the performance of municipal duties. In those days, when the purity and freedom of elections prevailed, the parental home or the locality from whence the student came, was universally accepted as the
(Acquisition of domicil.)
district in which he was entitled to vote. In the commonwealth of Massachusetts, where some of the earliest colleges were founded, in the case of Putnam v. Johnson, 10 Mass. 495, which was decided in 1813, it is said, "that under-graduates of an university never yet had claimed a right to vote for senators, in the town where the university is situated." Such, I apprehend, was the prevailing opinion of the citizens, as well as of the students, up to a recent period, in this state.
To determine the right of a student to vote, it is said in 5 Met. 589, that "where a student has his domicil of origin at a place other than the town where the institution of learning is situated, and he goes there for the sole purpose of obtaining an education, it would not, of itself, give him the right to vote, because it would not necessarily change his domicil, but in such case his right to vote in that place would depend upon all the circumstances connected with such residence. If he has a father living, if he still remains a member of his father's family, if he returns to pass his vacations; if he is maintained and supported by his father; these are all circumstances repelling the presumption of a change of domicil; so, if he has no father living, if he has a mother or other connections with whom he has before been accustomed to reside, and to whose family he returns in vacations, if he describes himself of such place, and otherwise manifests his intent to continue his domicil there, these are all circumstances tending to prove his domicil unchanged."
A careful examination of the testimony leads to the conclusion that none of these students, whose votes are contested, were qualified electors at the last October election. The names of all appear upon the extra-assessment, while most of them were residing at the college when the annual assessment was taken, and none of them swear that they came here with any other intention than of obtaining a collegiate education, and of going elsewhere after their graduation; all are registered in the matriculation book
(Acquisition of domicil.)
as belonging to the homes from whence they came; some are under the pupilage of their parents, receiving all their support from them, and in no sense whatever are they emancipated from the parental domicil; whilst others, partly support themselves, and go elsewhere or usually to their homes during the vacations, but they are here with no intent to remain an indefinite time or to acquire a new domicil. Students being here for the sole purpose of being educated, and not coming animo manendi, but intending to go elsewhere as soon as graduation takes place, do not fall within the same category with unmarried men who seek employment from point to point, as opportunity offers. The student is in a preparatory condition, in a state of tutelage, and non-productive, not yet able or willing to enter the world to engage in business, or in the productive pursuits of life, nor fully prepared to assume civil and political rights and duties. The unmarried man who has severed the parental relation, becomes a laborer, producing for himself, and thus adds to the productive wealth of the community in which he resides, being willing not only to enjoy political privileges, but also to assume and to discharge political and civil duties.
This ruling imposes no greater hardship upon the student than is visited upon many others engaged in the various pursuits of life at points away from their domicils. In Chase v. Miller (ante 234), it is said, that four of the supreme judges, found themselves holding a term of court at Pittsburgh during each presidential election, and although they were there more than ten days before the holding of the election, it could not be pretended that that place could become their residence so as to entitle them to vote. Again, it is known as part of our history, that members of the cabinet, senators and members of congress, heads of departments and clerks, who reside at Washington almost the entire year (and many of them with their families), and are there for an indefinite term of years, return at each annual election to their native.