Redstone Township. Each of the four

Election law Improper registration of voters When names should be stricken from registry-Acts of May 29, 1891, P. L. 134, and May 16, 1895, P. L. 75.

The court will order stricken from the registry list names entered therein by the assessor without personal application and with postoffice and occupation given but no further information.

Men employed on state road contracts within an election district for more than two months before the election are not entitled to vote unless they have become bona fide "residents," and the mandatory requirements of the law must be followed as to their registration. "Residence" means a permanent home without any present intention of removing therefrom. A man does not lose or acquire residence by employment merely; nor can he be made a qualified voter by paying taxes for him and assessing him where he is temporarily employed without action in his part as to taking up a new residence.

Proceedings to purge and correct Registry List of false and fraudulent registrations. C. P. of Fayette Co. December Term, 1914, No. 226.

sessor for election purposes, &c., and Mr. E. F. Woodward is such Assistant Assessor for election precinct No. 4, and as such made registration of the voters of his district in May, 1914, showing about 234 voters on his list, and at the Presidential election there were cast 122 votes in this precinct. All told, there are now on the list about 370 names.

Some time before September 1st and 2d, 1914, which dates the Assistant Assessor was required to be at the polling place, Mr. Krepps, the Township Assessor, came to the Assistant Assessor, who says that Mr. Krepps stated that the County Commissioners "had sent him. to get the book; he said he was the Assessor and he said they sent him there to get my book to help him out," whereupon the Assistant Assessor delivered his Registry List book to Mr. Krepps, who retained it for several days, and when it was returned the Assistant Assessor found that upwards of 60 names had been entered thereon, noting after each nothing but postoffice and occupation. With one exception, the names so entered, while the book was in the possession of Mr. Krepps, are irregular, and from a legal standpoint it is clearly our duty to declare them false and fraudulent and strike them from the Registry List of Redstone Township election precinct No. 4. This one made personal application to the Assistant Assessor.

Another lot of names on the Registry List, regarding which complaint is made, is composed of names entered by the As

W. J. Sturgis, of Reppert, Sturgis & Morrow, contra.

secured from two sources, viz.:

1. The assistant mine foreman from Brier Hill coke works brought a list of four or five or a half-dozen, and asked

This is another proceeding under the Act of May 29, 1891, P. L. 134, as amended by the Act of May 16, 1895, P. L. 75, for purging and correcting the Registry List of Redstone Township election precinct No. 4.

Mr. Sol G. Krepps is the Assessor o

Assessor did, without personal application or any information other than the name, postoffice and occupation.

2. A Mr. Higinbotham brought a list of names of men employed on a stateroad contract in this election precinct in he vicinity of Brier Hill, advising that a fellow on the state road had handed im those names and asked him to bring

them over," requesting that they be entered on the Registry List, which was done by the Assistant Assessor without personal application and noting nothing but the name, postoffice, occupation and date of entry.

The names in 1 and 2 above are so entered and intermingled that the Assistant Assessor cannot separate or specify them other than that they came to him from one or the other of the above-noted sources; and in view of the fact that they are all improperly on the list and, in law, false and fraudulent, that fact is not material.

Regarding the names in list 2 above, a question is involved that has been given some attention by the press throughout the state, viz.: whether men so employed on state-road contracts who have been working in the district for more than two months before the election have a right to vote in such district of course, assuming that they are otherwise qualified.

66

In this instance the names of the men so employed were entered on the Registry List (a) without personal application from any of them, (b) without noting "Voter," "age," N." "D. I.," "I. N.," "R," or "C. V." after each name, (c) without noting whether they are housekeepers or boarders, (d) without noting names of employers, (e) without noting names and residences of known residents of the district who furnished information as to their qualifications as voters; all of which matters are required by law in such cases. If question had not been raised, doubtless every such name entered as aforesaid would have been included in the County Commissioners' alphabetical list to the election officers. The names of these men indicate that most, if not all, of them are foreigners, so personal application and sixty days' working or residence in the district would not entitle such men to be registered; if they had not been voters in the district for at least two years immediately preceding the election, they must exhibit to the Assessor their naturalization certificates and have the letter "N" noted after each name on the Registry List.

As to registration, the Act provides that the Assessor shall enter on his book only those "that he shall find upon careful and diligent inquiry to be bona-fide residents of his district," and on his list he shall note the names of persons "who have moved into the election district to reside since the last general election," and "the assessor shall, in all cases, personally ascertain by careful and diligent. inquiry of the voter or of some known resident of the election district in which the voter claims the right to vote upon what ground such person so assessed claims to be a legally qualified voter," and in all such cases as these, “where any person claims to vote by reason of naturalization, he shall exhibit his certificate thereof to the Assessor . . . the name shall be marked with the letter N'." There is in the Registry List book a special column for noting each of the matters mentioned in this and the paragraph last preceding, none of which plain, specific, mandatory and imperative provisions of the Act were complied with in these cases.

"The qualifications of a voter in Pennsylvania are fixed by the Constitution, which is the supreme law and which requires that a male citizen desiring to vote shall reside in the state one year (or if having previously been a qualified elector or native-born citizen of the state, he shall have removed therefrom and return, then six months) immediately preceding the election.' He shall have re

sided in the election district where he shall offer to vote at least two months

If

immediately preceding the election. twenty-two years of age or upwards, he shall have paid within two years a state or county tax, which shall have been assessed at least two months and paid at least one month before the elect on." Coudersport Registry List, 23 C. C. R., 419.

What do we understand by "bona-fide residents" or "to reside" as used hereinabove in this connection? It means to dwell permanently, to have a settled abode, dwelling or home; a place where a man's habitation is fixed without any present intention of removing it therefrom. Residence indicates permanency

of occupation as distinct from lodging | or boarding or temporary occupation, and, in a statute, the Supreme Court of Maryland says, residence means the fixed home of the party.

We do not think anyone will seriously contend that strangers coming into a district, employed on a public-road contract. come there to reside or are bona-fide residents of the district, they certainly do not come in the list of permanency of occupation," but come among those included in "lodging or boarding or temporary occupation," not having a "fixed home" in the district.

A man does not lose or acquire residence by employment merely. It is a well-known fact that a prominent c'tizen of this town has been employed for almost or quite a quarter of a century in Harrisburg, yet he has retained his residence in Uniontown and comes home to

vote.

Earnest party men have no right to assume that men so employed expect and intend to make the place of their employment their residence and permanent home, and if they have them registered and assessed, and pay or cause to be paid taxes for them, that does not make them legally bona-fide residents and legally qualified voters in the district. Nothing short of such action on the part of the man himself and a good-faith compliance with all the formalities of the law would give him such right.

Persons might be so employed for years and not become bona-fide resiCents, and have no intention of coming into the district to reside there, and, without a careful and diligent inquiry and the noting of the same as required by law, we think and find as a fact that being so employed any length of time does not give such employee a legal residence such as to entitle him to be registered and vote, regardless of how many people might be able and willing to swear that such person had had a physical existence or place to stay in such district the length of time necessary to give him the right to vote if he had been a bona-fide resident or had moved into the district to reside there, in the sense of making it his home.

We think the presumption warranted that American-born citizens and foreigners who have been naturalized, engaged in such work, have a legal residence somewhere when they enter on such employment, and such residence is not changed by such employment without more than merely living in the district while engaged on such work.

A most vicious condition might develop from allowing men who did not have a bona-fide residence in the district, and men employed such as these are, to vote. For instance, suppose, as in this case, 70 to 75 such men should be registered and permitted to vote, and some important local or county office was to be filled, they might have the balance of power, and the will of the majority of the bona-fide residents be defeated by the votes of men who were not such bona-fide residents, or in fact by men who were in the district but not there to reside or make it their home, and who would have no real concern in the matter one way or the other.

They are not entitled to vote in the district where they are employed unless they are there as bona-fide residents, to reside in the sense above noted, and election officers must not allow them to vote nor deliver ballots to them without strict. compliance with the spirit as well as the letter of the law.

From the testimony submitted in this case, it clearly appears that there are on the list the names of several who are minors, some who are not, and never have been, resident of the district, and quite a number of foreigners who have. not been naturalized, one of whom says he has been only "six months from old country," and another only one year.

It is inconceivable that such conditions as are established in this case could be the result of anything but a bold, open, notorious attempt on the part of some one or more persons to pad the Registry List with names of men who were not qualified voters for the purpose of stuffing the ballot-box with false, fraudulent, irregular and illegal votes.

ORDER OF COURT. — Now, October 16, 1014. this matter came on for further hearing; and now, October 20, 1914,

upon and after due consideration, and for reasons set forth in opinion herewith and opinion at No. 145, December Term, 1914, it is ordered and directed as follows, viz.:

1. (a) That the names entered on the Registry List of Redstone Township election precinct No. 4, by Sol G. Krepps, or by some one else while said book was in his possession and custody, viz., Adam Adams (and 62 others named in order filed);

(b) That the names entered on said Registry List book by the Assistant Assessor, Sept. 1st and 2d, 1914, from lists furnished and delivered to him (a) by the Assistant Mine Foreman of Brier

Hill and (b) by Mr. Higinbotham, viz., Alphonse John (and 71 others named in order filed), be and the same are hereby stricken from the Registry List of Redstone Township election precinct No. 4. 2. That E. F. Woodward. Assistant

Assessor of Redstone Township election precinct No. 4. proceed forthwith to correct said Registry List accordingly.

3. That the County Commissioners shall not include any of the said 135 names (being 63 in (a) and 72 in (b) above) in, but must omit and exclude all of them from the alphabetical list which they shall have prepared and delivered to the officers of the election for Redstone Township election precinct No. 4.

September 26, 1914. Opinion by HASSLER, J.

On April 29, 1904, the plaintiff entered a judgment against the abovenamed defendants for $2,000 to April Term, 1904, No. 20. The note upon which it was entered is dated April 2, 1904. This judgment was revived on April 4, 1910, to January Term, 1910, No. 841, by amicable scire facias dated April, 1910. Execution was issued on the latter judgment on March 28, 1914, by virtue of which the personal property of both the above-named defendants was levied on by the sheriff.

On March 31, 1914, P. W. McLaughlin, one of the defendants, presented his petition to this Court asking to have the judgment opened. In it he alleges that he did not sign either the note upon which the judgment was entered, except as a witness, nor the amicable scire

The

facias, but that on both his name has been forged, and that he had no knowledge that a judgment had been entered against him until the sheriff levied upon sented his petition to this Court. his property three days before he preplaintiff in his answer denies these allegations. In the depositions taken the petitioner is corroborated by his father, the other defendant in the judgment. The plaintiff is not corroborated. Under these circumstances it is well settled that the defendant is entitled to have the judgment opened so that the question of the genuineness of his signature may be passed upon by the jury.

We therefore make absolute the rule to open the judgment so that it may be ascertained whether P. W. McLaughlin signed the judgment note upon which judgment was entered and the amicable scire facias upon which it was revived.

shut in upon the track and entrapped in front of the train. He was not looking toward the plaintiff's car, although he

Wiley v Philadelphia & Reading Railway

Co.

tributory negligence.

tance. We think the Court's charge, so far as it referred to the defendant's duty under the facts of the case, was correct, and that the question of defendant's negligence, in the absence of contribu

Motion for judgment non obstante veredicto. C. P. of Montgomery Co. March Term, 1913, No. 28.

William P. Young, for plaintiff.

Evans & Dettra, for defendant.

RYAN, P. J., 7th judicial district, specially presiding.

On May 5, 1912, about 11:40 o'clock in the forenoon, the plaintiff's automobile was struck and damaged by a descending safety-gate of the defendant as plaintiff was attempting to cross the defendant's tracks at the intersection of Hanover and Queen Streets, in the Borough of Pottstown. According to the plaintiff's testimony, he approached the crossing at a speed of ten miles an hour. He was following a team and was about ten or twelve feet from it as he neared the railroad. As he approached the tracks he saw the gateman at the point from which the gates operated, but with his back toward plaintiff. Plaintiff, when ten or twelve feet from the crossing, sounded his horn and attempted to pass to the left of the team ahead of him. A train was approaching at the time, and the gateman started to lower the gates to shut off the crossing. He was watching another team which was about leaving the tracks on the farther sire, and was so manipulating the gates at that point with reference to the team that it might not be struck by them or

tiff, woull have been for the jury. It was clearly the duty of the gateman to so operate all the gates, as he lowered them, as not to bring them in co tact with passing vehicles, and he should have watched all points where there was danger of such an accident: Hudson v. Lehigh Valley R. R. Co., 54 Pa. Superior Ct., 107. The Court's instructions to the jury as to the plaintiff's duty under the circumstances, we think, also constituted a correct statement of the law. It said: "This will lead you to a consideration of what was the duty of the plaintiff under the circumstances, because there were duties devolving upon him at that time which he was bound to observe, as well as duties devolving upon the defendant. It is in evidence that he was familiar with this crossing. He had been there before numerous times, as the Court remembers his testimony; at any rate, he was acquainted with the locality. He was bound, therefore, to bear in mind as he approached the crossing the fact that those gates were lowered from time to time. It was his duty to look out for signals that the gates were being lowered, and to keep his automobile at such a

speed as would make it possible for him to have it under such control as would enable him to stop and avoid contact between the descending gates and his vehicle. His failure to observe these precautions would be evidence of contributory negligence." We think the Court should have gone further and declared such failure on plaintiff's part to have been contributory negligence per se. The evidence was undisputed that the plaintiff approached the crossing at such a speed that, although he heard the warning signal of the descending gate while he was eight or ten feet from it,