Lesker, In re

• Decision Date: 24 May 1954
• Citation: 377 Pa. 411,105 A.2d 376
• Parties: In re LESKER.
• Court: Pennsylvania Supreme Court

Page 376

105 A.2d 376

377 Pa. 411

In re LESKER.

Supreme Court of Pennsylvania.

May 24, 1954.

Storey, Bailey & Rupp, William S. Bailey, G. Thomas Miller, Harrisburg, for appellant.

Saul L. Rubin, Pittsburgh, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

MUSMANNO, Justice.

On March 15, 1954, Kurt J. Lesker, indicating his residence to be 1814 Brownsville Road, Pittsburgh, filed a nomination petition in the office of the Secretary of the Commonwealth as a candidate for Republican nomination for the office of assemblyman from the 9th Legislative District in Allegheny County. On March 22, 1954, Andrew P. Burgess filed objections to Lesker's petition, asserting that Lesker lived at 4334 Brownsville Road, Brentwood Borough, was thus an inhabitant of the 15th Legislative District, and therefore disqualified from being a candidate in the 9th Legislative District.

On March 30, 1954, the Court of Common Pleas of Dauphin County, after hearing both sides, dismissed the objections interposed by Burgess, whereupon he appealed to this Court. In support of his contention that Leasker has abandoned his residence at 1814 Brownsville Road, Burgess introduced evidence to show that in applying, in 1953, for a motor vehicle operator's license and an automobile owner's registration card, Lesker stated his residence address to be 4334 Brownsville Road. Further, that in applying for a liquor license Lesker gave his home address as 4334 Brownsville Road. Also, that Lesker's listing in the telephone book carried the address of 4334 Brownsville Road, and that on the morning of March 23, 1954, Lesker was located at this address where notice of Burgess' objections was served upon him.

In reply to these allegations, Lesker testified that he had lived at 1810 Brownsville Road for 18 years and then in 1951 moved two doors away to 1814 Brownsville Road where he has resided ever since; that he maintains a four-room apartment at 1814 Brownsville Road and that for five years he has been the Repuglican chairman of the 25th Ward which embraces both 1810 and 1814 Brownsville Road. Lesker further testified that his wife's death, which occurred on December 21, 1953, had been preceded by a protracted illness and that during this period of mental distress and concern over his wife's condition, followed by her demise, he had arranged to have important mail sent to his son's home located at 4334 Brownsville Road, but that he himself never took up habitation at that address. Also, that his son bore the same name as himself, which explained the Lesker listing in the telephone book. With regard to the liquor license application, Lesker stated that the 4334 Brownsville Road address appearing on that paper was the result of a clerical error in the office of the Liquor Dealers Association, of which he was a member and officer.

Art. 2, § 5 of the Constitution of Pennsylvania, P.S., provides that:

'[Representatives] * * * shall have been citizens and inhabitants of the State four years, and inhabitants of their respective districts one year next before their election (unless absent on the public business of the United States or of this State) and shall reside in their respective districts during their terms of office.'

An inhabitant is defined in Webster's Unabridged Dictionary as 'one who dwells or resides permanently in a place, as distinguished from a transient lodger or visitor.' Further, that the general term 'implies permanent abode.' There can be no doubt that in the terminology of Pennsylvania jurisprudence, inhabitant is intended to mean the most permanent type of dweller or resident. Justice Agnew, in Fry's Election Case, 71 Pa. 302, treated this subject historically:

'Thus in the laws agreed upon by William Penn on the 5th of May 1682, the second section provides: 'That every inhabitant in the said province, that is or shall be a purchaser of one hundred acres of land, or upwards, * * * shall be deemed and accounted a freeman of the said prince, and every such person shall and may be capable of electing or being elected representatives of the people in Provincial Council, or General Assembly in said province.''

In the Pennsylvania Constitution of 1790, 'every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax, and which shall have been assessed at least six months before the election, shall enjoy the rights of an elector'.

In the Constitution of 1838, this section applying to qualifications for elector was not changed, though the term of time was reduced. The nature of residence remained as before, 'and its characteristics being unaltered, it strengthens the interpretation that 'residence' in the Constitution means home, fixed abode, domicil of the elector, as distinguished from a place of temporary sojourning.' Fry's Election Case, supra, 71 Pa. at page 309.

Coming down to the present Constitution of 1874, we find that the definition of inhabitant is one who resides permanently in a given place. This interpretation is reinforced by the fact that the final clause in the quoted Article 2, Section 5, namely, 'shall reside in their respective districts during their terms of service' is but an extension of the concept inhabitant, as much as if the clause had read: 'and shall be inhabitants of their respective districts during their terms of office.'

In the Fry's Election Case the question arose as to whether students living in Allentown while attending Muhlenberg College in that city, had the right to vote in Allentown under that section of the Constitution of 1838 which read:

'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 * * * shall enjoy the rights of an elector.'

This Court held that regardless of the period of time the students lived in Allentown, they could not vote in Allentown because their permanent abode was elsewhere. Analyzing the pertinent provisions of the Constitution on the subject, Justice Agnew pointed out:

'The Constitution provides that senators and representatives shall be inhabitants of the state, the latter three and the former four years; and the last year, inhabitants of the districts from which they are chosen. So the governor must be an inhabitant of the state seven years. Judges of the Supreme Court shall reside within the Commonwealth, and other judges, while in office, within the district or county for which they were elected. It is evident that the term 'inhabitant' or 'resident' in these clauses cannot mean one sojourning temporarily, or for some special purpose, but refers to one who has a permanent abode; the domicil of the senator, representative, governor or judge. * * *

'Therefore, when the Constitution declares that the elector must be a resident of the state for one year, it refers beyond question, to the state as his home or domicil, and not as the place of a temporary sojourn.' 71 Pa. at page 307.

There can be no doubt, therefore,...