that language in view of the established meaning that it has acquired." tion, one favorable and one unfavorable, and while, as stated, the weight of authority elsewhere is unfavorable, nevertheless the [3] Nor do we regard the act under confavorable view is supported by such eminent sideration as unconstitutional because it limauthority that, in our judgment under At- its the power of the chancellor in the selectorney General v. McGuinness, supra, we tion of jury commissioners to the appointmust accord to the Legislature the right to ment in a given county, of a citizen, resident form its own judgment as to the constitution- therein, who shall not be a member of the ality of the provision of the act in question, same political party as the sheriff. A simiand we support the judgment so formed. In lar question was decided by this court in fine, where there are two permissible views Attorney General v. McKelvey, supra. The as to the existence of a constitutional limita- act there involved was one creating boards of tion, one unfavorable and the other favor-public works in certain cities, and provided able, to a given statute, the courts must ac- that no more than two members of any cord to the Legislature the right to hold board could be of the same political party. that view of the Constitution which supports The act was upheld as to that particular its enactment, even should the other view feature upon the reasoning of the Chief Jusseem to the court to be the preferable one. tice in the same case in the court below. The mere fact that dissentient views to a See McCarter v. McKelvey, 78 N. J. Law (49 generally accepted doctrine are held, or have Vroom) 3, at page 6, 74 Atl. 316, 138 Am. St. been expressed, does not conclude the ques- Rep. 583. tion that there are two permissible views within the meaning of this rule. The existence of such dissenting views it is merely a reason which, together with other relevant considerations, are to be taken into account by the court in the determination of the GARRISON, J. (concurring). The question question whether there are two permissible is whether the Constitution of this state sets views. In the present case, upon such con- a limitation upon the legislative power that sideration, we have determined that there was overstepped in the enactment of the are two permissible views within the mean-statute before us. The other questions urged upon our attention we deem to be without weight. The judgment under review must be reversed. that relied upon by the court below in declaring the statute to be unconstitutional, the other that relied upon by this court in sustaining the constitutionality of the statuteviews that are set forth at length in the opinions of these courts respectively. That either of these views is a permissible one is thus practically tested and demonstrated, and that such is the case is expressly decided by this court. ing of the rule stated. This same question As to the existence of such a constitutional was before us in Attorney General v. Me-limitation, there are two opposing views, one Kelvey, 78 N. J. Law (49 Vroom) 621, at page 622, 77 Atl. 94, at page 94, and Mr. Justice Swayze, who wrote the opinion for this court, says: "The fundamental principle which is controlling upon the courts in passing upon the constitutionality of a statute has been nowhere better stated than by Mr. Justice Garrison, ante, 78 N. J. Law, 346, at page 371 [75 Atl. 455 at page 461]. After reviewing the authorities, he says: "These citations, which might be indefinitely ex- Such demonstration and decision render it tended, show the existence of a well-defined unnecessary to determine which of these two though self-imposed limitation of the judicial views is the preferable one in the opinion of function of declaring legislative acts to be this court, since, regardless of such determivoid for unconstitutionality, which limita- nation, the act of the Legislature under retion is for practical purposes stated to be view cannot be declared to be unconstituthat an act will not be declared void by the tional if such act can be sustained upon a courts if its unconstitutionality is in any wise view of the Constitution that it was permissidoubtful.' He adds that the notion that able for the Legislature to take, and that such legislative act will be sustained only when a view exists is both decided and demonstratit is demonstrably constitutional in effect ed in the opinion of Chancellor Walker supplements the Constitution by requiring the speaking for this court. affirmative concurrence of all three departments of the government, where that instrument of the organic law requires but two, viz., the legislative and the executive, and thus in effect annexes to the judicial branch a quasi legislative function akin to that which the Constitution itself has annexed to the executive by the veto power.' In applying these fundamental principles to a particular case, it is important, not only to read the language of the Constitution, * This is the rule announced for this court in Attorney General v. McGuinness, 78 N. J. Law, 346, 75 Atl. 455, and followed and reaffirmed by this court in Attorney General v. McKelvey, 78 N. J. Law, 621, 77 Atl. 97. Upon this ground, which is the one last stated in the Chancellor's opinion, I base my vote for the reversal of the judgment rendered by the Supreme Court. GUMMERE, C. J., and PARKER and VRE (85 N. J. L. 583) COLGARRY et al. v. BOARD OF STREET & WATER COM'RS OF CITY OF NEWARK. with a written statement of the reasons for such action, and allowed a reasonable time in which to make written answer thereto. The record shows that all of the persons (Court of Errors and Appeals of New Jersey. removed under the respondent's resolution Jan. 15, 1914.) (Syllabus by the Court.) DIS MUNICIPAL CORPORATIONS (§ 218*) CHARGE OF EMPLOYÉS-NOTICE AND HEARING. When a municipal corporation bona fide, and in the interest of efficient and economical administration, determines to reduce the number of its employés by abolishing certain positions in its service, the employés thus removed from their positions are not entitled to notice and an opportunity to be heard in relation to such a proceeding, for neither the civil service act (3 Comp. St. 1910, p. 3795, §§ 57-63), nor the veteran act (4 Comp. St. 1910, pp. 4872, 4873, §§ 60-62), nor the board of works tenure of office act (1 Comp. St. 1910, p. 984, § 1434), protects them from such removal or discharge. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 589-598; Dec. Dig. § 218.*] Appeal from Supreme Court. Certiorari by John Colgarry and others to review certain proceedings of the Board of Street and Water Commissioners of the City of Newark. From a judgment affirming the proceedings of the Board, the prosecutors appeal. Affirmed. Arthur F. Egner, of Newark (Robert H. McCarter, of Newark, on the brief), for appellants. Herbert Boggs, of Newark, for appellee. WALKER, Ch. This case presents an appeal from the judgment of the Supreme Court affirming certain proceedings of the board of street and water commissioners of the city of Newark, which were before that court on certiorari. Certain persons employed by the board, and whose positions and employments were abolished, sued out a writ of certiorari to review the legality of the resolution which deprived them of their employment. The resolution brought up recites that certain named employés are unnecessary to the efficient and economical administration of the city, within the jurisdiction of the board, and then provides that those employés be placed on the suspended list, and that their respective salaries and wages cease, and that the several positions and employments held by them respectively be abolished and terminated. The employés, thus removed, claim the protection of the civil service act (P. L. 1908, p. 235, § 24), which provides that certain employés shall not be removed, discharged, or reduced in pay or position, or otherwise discriminated against, because of political opinions or affiliations, and, further, that they shall not be removed, discharged, or reduced until they shall have been furnished were members of the same political party, but it does not show that those who were retained were all of another political party; hence it does not appear that the prosecutors were discharged from their employment because of any discrimination against them on account of political opinions or affiliations. The appellants in this case fail to show that their employments were not abolished for the purpose of economy, and therefore, under the decision of the Supreme Court in Paddock v. Hudson Tax Board, 82 N. J. Law (53 Vroom) 360, 361, 83 Atl. 185, 186, they are not entitled to set aside the resolution of the board. As was well said in that case: "It was not the design of the civil service law to perpetuate offices regardless of the fact whether they were needed or not. The very spirit of good government intends that useless offices drawing revenue from a municipality or state should be abrogated, and it would be regarded as a betrayal of a solemn trust for a body politic to convert offices contemplated under the civil service law into sinecures or pension places." The civil service act does not provide that, when a municipal corporation proposes to reduce its working force by the abolition of certain positions in the interest of efficient and economical administration, the employés thus affected shall be entitled to notice and an opportunity to be heard in relation to such a proceeding. The case before us does not fall within the provision of the civil service act. Nor does the veteran act protect such of the appellants as are honorably discharged Union soldiers, as the abolition of their positions is not shown to be illusory, and appears to be bona fide. Stivers v. Jersey City, 70 N. J. Law (41 Vroom) 606, 57 Atl. 143. See, also, Beirne v. Jersey City, 60 N. J. Law (31 Vroom) 109, 36 Atl. 778; Harker v. Bayonne, 89 Atl. 53, Court of Errors and Appeals June term, 1913, not yet officially reported. Those who are sought to be protected by the board of works tenure of office act (P. L. 1910, p. 40) are in no better position. That act provides that no employé of a municipal board of street and water commissioners who shall have been in such employ continuously for a space of five years shall be removed, discharged, or reduced in pay or position, except for inefficiency or other just cause, until he shall have been furnished with a written statement of the reasons for such removal, discharge, or reduction, and shall have been given a reasonable time to make written answer thereto, nor until the charge or charges shall have been examined 1. RAILROADS (§ 300*)-PERMISSIVE CROSSING -CARE REQUIRED. Where a railroad company has, for many years, without objection, permitted the public to cross its tracks by a path not at a public crossing, it owes the duty of reasonable care toward those crossing on such path. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 955; Dec. Dig. § 300.*] 2. RAILROADS (§ 350*)-PERMISSIVE CROSSING -EXERCISE OF CARE-QUESTION FOR JURY. Where a person is killed from being struck by a train at a permissive crossing for people on foot, the question whether the railroad company has exercised the reasonable care required of it is ordinarily for the jury under all the evidence. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 3. RAILROADS (§ 350*)-PERMISSIVE CROSSING -DEATH OF CHILD-CONTRIBUTORY NEGLI GENCE. In an action for the death of an 11 year old boy from being struck by a train on a path constituting a permissive crossing, the question of his capacity to comprehend and guard against the peril was for the jury, though the circumstances would have warranted finding him guilty of contributory negligence as a matter of law had he been an adult. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 4. RAILROADS (§ 300*)-PERMISSIVE CROSSING -TRESPASSER. That an 11 year old boy shows a lack of good judgment in crossing one track by a path constituting a permissive crossing, before a freight train on the second track has gone entirely by, and stands a short time in the space between the tracks, waiting for the train to pass, will not make him a trespasser. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 955; Dec. Dig. § 300.*] 5. RAILROADS (§ 350*)-PERMISSIVE CROSSING DEATH OF CHILD NEGLIGENCE QUES TION FOR JURY. - In an action for the death of an 11 year old boy, struck by a train running 50 miles an hour within the limits of a borough, while he was standing between the tracks, waiting for a freight train to pass, at a permissive crossing, where at least 50 or 60 persons daily crossed the tracks, the question whether the speed of the train constituted negligence was for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] Appeal from Court of Common Pleas, Lawrence County. Trespass by Silas Lodge and wife against the Pittsburgh & Lake Erie Railroad Company, to recover damages for death. From an order refusing to take off nonsuit, plaintiffs appeal. Reversed. Argued before BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Robert K. Aiken, of New Castle, for appellants. J. Norman Martin and Norman A. Martin, both of New Castle, for appellee. POTTER, J. This is an appeal from the refusal of the court below to take off a judg ment of compulsory nonsuit. Plaintiffs' evidence tended to show that defendant's railroad, in passing through the borough of Beaver Falls, consisted of three parallel tracks running on the west side of a stream known as the Beaver river or creek. At the point where the accident occurred boys and men had been accustomed, for many years, to cross the railroad tracks in order to reach the river for bathing and fishing, and at times as many as 50 or 60 persons would cross in one day. There was a well-defined path worn on each side of the railroad and upon the cinders on the roadbed. There is an embankment five or six feet high along the side of the railroad, but it is "sort of washed out," and those crossing the tracks can easily get up and down at the river. On August 14, 1907, at about 1 o'clock p. m., a son of the plaintiffs, named Silas Dale Lodge, who was about 11 years and 6 months old, started with three companions to go to the river to swim. When the boys came to the railroad, a freight train was passing, and while waiting for it to pass, they stood between the tracks. While standing there, a passenger train came along, running at the rate of about 50 miles an hour. The last seen of Dale Lodge alive was when he was standing on the path between the two tracks. After the trains passed he was found lying dead on the path. The passenger train stopped, and backed up and took up the body. [1, 2] There was ample testimony to support a finding that the place in question was a permissive crossing for people on foot. It appeared that it had been so used for many years. That a path had been there before the railroad was built, and that this path continued in use across the railroad, as a means of access to the river at that point, and that during the months of July and August, some 50 or 60 boys and men would use that path as a crossing place each day. The rule of law applicable to such a situation was definitely stated in Taylor v. Canal Company, 113 Pa. 162, 175, 8 Atl. 43, 44 (57 Am. Rep. 446), by Mr. Justice Sterrett, who, after citing certain cases, said: "The principle clearly settled by the foregoing, and many other cases that might be cited, is that when a railroad com pany has, for years, without objection, per- if the jury so conclude, be sufficient to charge mitted the public to cross its tracks at a cer- him with contributory negligence. But we tain point not in itself a public crossing, it cannot, under the circumstances, regard his owes the duty of reasonable care towards act as a trespass upon the property of the dethose using the crossing, and whether in a fendant company. given case such reasonable care has been exercised or not is ordinarily a question for the jury under all the evidence." In the present case, the acquiescence of the defendant company for so long a period, in the crossing of its tracks at the point in question by pedestrians, amounted to a license to cross. The defendant could have withdrawn its permission to the public to use a path over the tracks at that place, but until it did so, it was bound to use reasonable precautions in the management of its trains to prevent injury to pedestrians. [3] Had this accident befallen an adult, who was at the time standing upon the tracks and waiting for a train to pass, he might, as a matter of law, very justly and properly have been held guilty of contributory negligence. But the boy who was killed was between 11 and 12 years of age. The question of his capacity to comprehend and guard against the peril he was in was for the consideration of the jury, under proper instructions from the court. Strawbridge v. Bradford, 128 Pa. 200, 18 Atl. 346, 15 Am. St. Rep. 670. This rule was quoted with approval in Kelly v. Traction Company, 204 Pa. 623, 626, 54 Atl. 482. In that case the boy was the same age as in the case at bar. In Kehler v. Schwenk, 144 Pa. 348, 359, 22 Atl. 910, 912 (13 L. R. A. 374, 27 Am. St. Rep. 633), Mr. Justice Mitchell said: "All the cases agree that the measure of a child's responsibility is his capacity to see and appreciate danger, and the rule is that, in the absence of clear evidence or lack of it, he will be held to such measure of discretion as is usual in those of his age and experience. This measure varies, of course, with each additional year, and the increase of responsibility is gradual. It makes no sudden leap at the age of 14. That is simply the convenient point at which the law, founded upon experience, changes the presumption of capacity, and puts upon the infant the burden of showing his personal want of the intelligence, prudence, foresight, or strength usual in those of such age. The standard remains the same, to wit, the average capacity of others in his condition. That this is the rule as to children under 14 is held in all our cases from Rauch v. Lloyd, 31 Pa. 358 [72 Am. Dec. 7471, to Sandford v. Railroad Co., 136 Pa. 84 [20 Atl. 799]." [4] If the jury should find that the path was a permissive crossing of the tracks, then the fact that the boy showed a lack of good judgment in starting across the path before the freight train had gone entirely by, and in standing for a short time in the space between the tracks waiting for the train to pass, would not make of him a trespasser. It may, [5] The question of defendant's negligence was also for the jury. It was for them to say whether the running of a train at the rate of 50 miles an hour, within the limits of a borough, at a point where at least 50 or 60 men and boys daily crossed its tracks, was in accordance with prudence and a reasonable regard for the safety of the public. The judgment of the court below is reversed, with a procedendo. 1. (243 Pa. 64) RAYMOND et al. v. LEISHMAN (UNION TRUST CO. et al., Garnishees). (Supreme Court of Pennsylvania. Jan. 5, 1914.) GARNISHMENT (§ 73*) - JURISDICTION OF DEFENDANT-AMBASSADOR. by Act June 13, 1836 (P. L. 580) § 44, as The writ of foreign attachment authorized amended by Act March 30, 1905 (P. L. 76), to issue against a person not residing within the whose domicile is within the state, though he is commonwealth, will lie against a nonresident an ambassador residing at a foreign court. [Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 141; Dec. Dig. § 73.*] 2. DOMICILE (§ 2*)-"RESIDENCE" AND "DOMICILE DISTINGUISHED. The words "residence" and "domicile" are not convertible terms, and the latter has the more extensive signification. Residence is often used to express different meanings according to the subject-matter. It may be said to be the dwelling place of a person and may be his permanent or temporary abode. It may mean the domicile of a person or his temporary presence in the locality. Domicile has been defined to be the place where a man has his true, fixed, ment, and to which, whenever he is absent, he and permanent home and principal establishhas the intention of returning. A man can have but one domicile for one and the same purpose places of residence. at any one time, though he may have numerous "Residence" is a word whose statutory meaning depends upon the context and the purpose of the statute, which may, as used in one statute, be fulfilled by mere business residence, and in another require domicile in the strictest and most technical sense. In ascertaining the meaning of this word in a particular statute, the legislative purpose, as well as the context, must be kept in view. [Ed. Note.-For other cases, see Domicile, Cent. Dig. § 2; Dec. Dig. § 2.* For other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. 8, p. 7788; vol. 3, PP. 2168-2179; vol. 8, pp. 7641, 7642.] 3. GARNISHMENT (§ 99*)-NATURE OF "FOREIGN ATTACHMENT. "Foreign attachment," under Act June 13, 1836 (P. L. 580) § 44, as amended by Act March 30, 1905 (P. L. 76), authorizing same, is the equivalent of a summons for the commencement of a personal action. It is a process by which to commence a personal action and compel an appearance. Cent. Dig. § 200; Dec. Dig. § 99.* [Ed. Note.-For other cases, see Garnishment, For other definitions, see Words and Phrases, vol. 3, pp. 2881, 2882.] Act June 13, 1836 (P. L. 580) § 44, as amended by Act March 30, 1905 (P. L. 76), authorizing the issuance of writs of foreign attachment, should be so construed as to effectuate its purpose, which is to compel the constructive appearance in court of a defendant who, by reason of his absence from its jurisdiction without a dwelling place therein, cannot be served with summons. 4. GARNISHMENT (8 99*)-FOREIGN ATTACH-, foreign attachment cannot lawfully be isMENT OBJECT OF WRIT-CONSTRUCTION OF sued and maintained against a resident of STATUTE. the state of Pennsylvania, and prayed that the writ be quashed and the attachment be dissolved. A rule was issued to show cause why the prayer of the petition should not be granted. The plaintiffs filed an answer to the petition and rule in which they denied the several allegations of the petition, and averred that the defendant was at the time the writ issued and for a long time prior thereto, and has been since, a nonresident of the state. [Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 200; Dec. Dig. § 99.*] 5. GARNISHMENT (8 78*)-FOREIGN ATTACHMENT NOT RESIDING WITHIN THE COмMONWEALTH." The words "not residing within the commonwealth," as used in Act June 13, 1836 (P. L. 580) § 44, as amended by Act March 30, 1905 (P. L. 76), authorizing the issuance of writs of foreign attachment, are not equivalent to "not domiciled within the commonwealth." [Ed. Note.-For other cases, see Garnishment, Cent. Dig. §§ 25, 144; Dec. Dig. § 78.*] Appeal from Court of Common Pleas, Allegheny County. Action of foreign attachment and assumpsit by Harry Raymond and others against John G. A. Leishman, defendant, and Union Trust Company and others, garnishees. From a judgment dissolving attachment, plaintiffs appeal. Reversed. A rule was entered to show cause why the writ of attachment should not be quashed and the attachment be dissolved, which rule was made absolute. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. A. Leo Weil, Charles M. Thorp, and S. Leo Ruslander, all of Pittsburgh, and Hays, Hershfield & Wolf, of New York City, for appellants. Samuel McClay, D. A. Reed, and Reed, Smith, Shaw & Beal, all of Pittsburgh, for appellee. It appears that at the time the writ was issued, and for several years prior thereto, Mr. Leishman had his domicile in the city of Pittsburgh, this state, but for 12 years before the writ issued he had been continuously absent from the state in the diplomatic service of the United States as minister and then as ambassador to different foreign countries, and was the Ambassador to the Empire of Germany, and as such was residing in the city of Berlin when the action was brought. The learned court below made the rule absolute and dissolved the attach ment, and the plaintiffs have taken this ap peal. [1] The question in the case is whether the defendant was a "person not residing within this commonwealth" at the time the writ issued within the meaning of Act June 13, 1836 (P. L. 580) § 44, as amended by Act March 30, 1905 (P. L. 76), which provides as follows: "A writ of foreign attachment, in the form aforesaid, may be issued against the real or personal estate of any person not residing within this commonwealth, and not being within the county in which such writ shall issue at the time of the issuing thereof, in all actions ex contractu and in actions ex delicto for a tort committed within this commonwealth." The learned court below held that, in contemplation of the act, "residence" is synonymous with his domicile in this state, the writ would not lie against him. We do not think this conclusion is sustained either by reason or by the weight of authority. MESTREZAT, J. The plaintiffs are engaged in business as bankers and brokers in the cities of New York, Paris, and London. They brought this action of foreign attach- "domicile," and that, as the defendant had ment in assumpsit against John G. A. Leishman to recover $70,010.95, which they alleged to be a balance due them on account of the purchase and sale for him in the city of London, in the latter part of the year 1912, of certain stocks, bonds, and securities. | The defendant caused an appearance de bene esse to be entered, and on March 15, 1913, presented a petition to the court below aver ring that he is a citizen and resident of the state of Pennsylvania and for many years has been and still is a resident of the city of Pittsburgh; that he never abandoned his residence in the said state nor adopted a permanent residence in any other place; that he is at the present time the Ambassador of the United States of America to the Empire of Germany and is temporarily residing in the city of Berlin; that he had been advised by counsel that the writ of [2] "Residence" is often used to express different meanings, according to the subjectmatter. Long v. Ryan, 71 Va. (30 Grat.) 718. It may be said to be the dwelling place of a person and may be his permanent or temporary abode. It may mean the domicile of the person or his temporary presence in the locality. Domicile has been well-defined to be the place where a man has his true, fixed, and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. It is acquired by residence with the intention of remaining in the locality. A person may have his domicile in one state and be engaged in business in another and thereby ac |