Langhammer v. Munter

Page, J., delivered the opinion of the Court. This is an appeal from an order of the Court of Common Pleas of Baltimore City, dismissing the petition of the appellants praying that the names of James Bosley and Charles Williams be stricken from the registry of voters of the fifth precinct of the first ward of Baltimore City. At the hearing the petitioners' produced the registry of voters of the precinct and ward, and read in evidence so much of the contents thereof as related to the registration of the persons alleged by the petition to be improperly registered. The appellants’ counsel,, however, contend that these entries can only be used for the purpose of showing what the appeal is from, and are not evidence to be regarded by the Judge in determining whether the register has acted properly. We cannot adopt this view. The duty of a register of voters under our statute is not merely ministerial. It is his duty to interrogate the party applying for registration under oath, touching his right to register; and if, after this primary examination of the applicant, and of such other evidence * * as may be immediately accessible, he is in doubt, he may adjourn his determination to a subsequent day, when he must proceed to determine whether the applicant is a qualified voter or disqualified. He is thus compelled to take evidence, weigh its force and effect, and finally to “determineand it is from this determination that anyone who thinks himself agrieved may appeal to one of the Judges of the Supreme Bench of Baltimore City (if the election precinct is in Baltimore City.) The appeal is by petition, and with it shall be filed certified copies of all the entries in the registry of voters relating to the subject-matter, and if, in the opinion of the Judge, the petition and exhibits show a prima facie cause of complaint, he orders the proceedings provided by the Act. After answer is made and [524] evidence adduced, the Court is required to consider, in making up its determination, the petition (which includes the entries), the answers and such testimony, for or against the petition, as may be offered, and from the whole case thus made up, decide whether the party is or is not a qualified voter. These entries are not only the sworn statements of the applicant, but also the deliberate findings of an officer charged with the public duty of determining their correctness, and as such should not be disturbed until their falsity has been established by sufficient evidence. Adopting this principle, in the case we are now considering, what does the proof establish ? There is no evidence assailing such entries as show that James Bosley is white, twenty-five years of age, and has resided in Baltimore City twenty-five years, and in the ward four years. There is no sufficient evidence to controvert the entry with respect to his residence (the nature of which, as proven, will be hereinafter examined) in the precinct. The proof that his name does not appear upon the police census of registered voters, is too uncertain to be entitled to much weight. The fact that Bosley was a sea-faring man, might fully account for his absence at the time the census was taken; even if it be assumed that the police performed their work with perfect accuracy. It was proved by the testimony of Charles A. Eisenreich, that he resided at 2225 Essex street (the place Bosley had stated as his residence in the ward and precinct); that neither of the alleged voters had ever lived there, but that he knew them, and, in the month of August, 1894, had permitted them, at their request, to sleep for two nights in his kitchen; that they had asked him to permit them to register from his house,, and he had replied that he did not object, if it was not contrary to law; that the alleged voters were two young men who “followed the water,” and he supposed they were then down the bay dredging. He did not know whether they had any permanent home; thought they had not, and if they had, he did not know where it was. He had known [525] them for some years, and on one or two previous occasions they had, in like manner, slept at his house for a night or two at a time, but never longer. ■ It was also shown that subpoenas had been issued for each of the parties, and returned by the sheriff non est. This is a full statement of all the evidence in the cause. We have stated it particularly with reference to James Bosley, but what has been said is equally applicable to the case of Charles Williams. Under these circumstances the appellant contends that neither of these men is a qualified voter and entitled to be registered. This depends on the meaning of the word “ residence,” as used in the first section of Article I of the Constitution, when applied to the particular proof in this case. What constitutes “residence” within the meaning of this section and Artiele of the Constitution, has frequently been the subject of judicial decision, in this State and elsewhere. It has often been held to be equivalent to the word “home,” in the sense of a house, to which one, whenever absent, intends to return. It undoubtedly carries with it an element of permanence, differiug, however, widely in special cases. “ The word ‘ home ’ suggests relations differing in breadth and strength, though not in kind, when applied on the one hand, to a farmer who has resided since his birth, and expects to reside until his death, on the same spot, and on the other hand to the clergyman whose home may change in two years, or to the railroad laborer whose home may change in two months.” Paine on Elections, 46; Chase v. Miller, 41 Penn. St. 204; Lincoln v. Hapgood, 11 Mass. 350; Story on Conflict of Laws, sec. 43. “ Temporary absence, with a continuous intention to return, will not deprive one of his residence, though it extend through a series of years,” Cooley Const. Lim. 600; Fry's Election case, 71 Penn. St. 302; norwill a sojourn, however prolonged, with the purpose of returning, be sufficient to acquire a residence. There must be the act of abiding, without the intention of removing therefrom. Story on Conflict of Laws, sec. 41, etseq. In other words, there must be, to constitute residence, an “ actual home in the sense of [526] having no other home whether he intends to reside there permanently, or for a definite or indefinite length of time.” Shaeffer v. Gilbert, 73 Md. 71. Residence, therefore, is a question depending upon fact and intention, and if so, it may be applicable to a particular spot, or to a whole country. A person who wanders from country to country, with no intention of remaining fixedly anywhere, acquires no new residence. On the other hand, one who confines his wanderings to a particular country or locality, but declines to fix himself upon some particular spot, can very properly be said to be a resident of that country or locality. Home, domicile or residence, may therefore include a spot or a wide area. Each of these words may be applied either to a house, a precinct, a ward, a county or a State. Dicey on the Law of Domicile, page 55, et seg. “ It is obvious that * * * State residence and the district residence are of the same nature, and whatever is necessary to constitute the one, is essential to define the other.” Dry’s Election case, 71 Pa. St. 306. The framers of our Constitution have in the 1st section of Article. 1 clearly recognized these applications of the word residence. That section prescribes as the qualification of a voter, that he shall be a resident of the State for one year, and a resident of the district six months. There is no requirement that the proposed voter shall have some particular spot, which he calls his home; provided he makes his home (in.the sense of having no other home), anywhere, or in however many places, for the required times, within the limits of the State and the voting district. Probably it was borne in mind that numbers of citizens, through misfortune or otherwise, were without dwelling places, but there is no evidence to be found in any part of the Constitution that these were to be denied the privilege of the elective franchise. On the contrary, it seems to have been the purpose to confer the right of suffrage upon every male citizen who has attained the age of twenty-one years, only requiring, for wise reasons, that every such person [527] shall have resided in the State one year, and in the voting district six months. When the General Assembly came to provide by law for a uniform registration of voters, as required by the fifth section of Article 1st of the. Constitution, it was careful to prescribe such regulations as should prevent abuse and fraud in the exercise of this great privilege. The city of Baltimore having been divided u into small precincts, officers of registration are provided for each, and large powers are given them effectively to discharge the duties imposed upon them. For the purpose of clearly identifying the person applying to be registered, the officers of registration are to ascertain his name, color, age, place of birth, place of residence by street and number (if any), the time of his residence in the city and ward, and enter the same in the proper column of books prepared by the State and furnished them for that purpose. Fraudulent conduct on the part of the registers, or of other persons in or about the registration of voters, is made a misdemeanor, punishable on conviction with heavy penalties. And in addition to all this, if any person, whether he be the person applying to be registered or any other person, shall think himself aggrieved by the action of the Officer of Registration, there is given the right of appeal to a Judge of the Supreme Bench. If these safeguards should prove ineffectual to prevent the fraudulent practices which the counsel for the appellant seems to apprehend, it will be for the Legislature to devise and enact other provisions to accomplish the most desirable object of securing absolutely pure elections. But whatever may be done, no restrictions can be imposed that will require other or different qualifications for voting, than those prescribed by the first Article of the Constitution of the State. (Decided February 28, 1895.) Order affirmed.