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our courts, and approved and fostered by our be reversed. But there is no such practice." people. While the ground rents from their na- Miller's Eq. Procedure, p. 319, note 4. ture are usually of a fixed value, the leasehold Who is a nonresident is a mixed question of interests are more or less fluctuating. In many, law and fact. The petitioner states in his peand indeed in most, cases, they have largely in-tition "that he has lately been in Scandinavia creased in value with the growth of the city. for a year and a half for the purpose of studyAnd most extensive and costly improvements ing philology, and is now in the city of New have been and are daily made by owners of such York for the purpose of using libraries there sitinterests on grounds thus leased."

uated, but that your petitioner has never aban

doned his residence and citizenship in the state Again, in the case of Myers v. Silljacks, 58, of Maryland." It therefore appears that he has Md. 319, speaking of leases of this character, been out of the state at least a year and a half.

The petition does not say when he expects to Judge Alvey said:

return to Maryland, or whether he intends to “We all know that estates dependent upon return at any certain time, and it may be that leases, like the one before us, are exceedingly he intends to remain out of the state indefinitecommon in this state, and particularly so in the ly. If he has been out of the state for a year city of Baltimore. Both the reversionary free and a half, with no intention of returning,"or hold and the leasehold estates are the subjects with the intention of returning at some indefiof daily transfers and assignments, and they nite time in the future, as circumstances may constitute a considerable portion of the substan- dictate or permit,” he is a nonresident, within tial wealth of the people. While the one estate the meaning of section 123 of article 16 of the is subject exclusively to the law that governs Code of Public General Laws of 1904, and may real property, the other is mainly controlled by be proceeded against as such, notwithstanding the law that governs personalty; the one estate he may not intend to abandon his domicile in passing by descent, and being subject to the law this state; for, as was said in Dorsey v. Kyle, of partition among heirs, while the other is the 30 Md. 512, 96 Am. Dec. 617: “In contempla subject of administration, and is governed by tion of the attachment law, the domicile may be the law that directs distribution of the person in this state, while the actual residence is in ana! estate. Both estates alike are the subjects other.". The term "non resident,"_in section 123 of mortgage and judgment liens, and are con- of article 16 of the Code of Public General stantly being sold and transferred in the en-Laws of 1904, means a "person who doth not forcement of such charges. It is of the utmost reside in this state” as defined in the law relatimportance, therefore, that the tenure be main ing to attachment. Dorsey v. Dorsey, 30 Md. tained with entire certainty ; that the true re- 531, 96 Am. Dec. 633; Miller's Eq. Procedure, lation of the parties to the property be at all p. 160. § 123. times fully recognized, so that their exact rights In the case of Dorsey v. Dorsey, supra, the may be known and enforced, and that third par- defendant stated in his petition that he left his ties may know how to deal with respect to those home in Maryland to visit his wife, who was rights."

then sick at her father's in Winchester, Va.,

with the intention of returning in a few days; And again, in the case of Worthington v. but owing to the position of the armies about Lee, supra, the court said that the above cases Winchester and Harper's Ferry he was unable fully state the reasons why this court “bas ap of the Civil War, although at all times intend

to do so, and was forced to wait for the close plied a more liberal doctrine to these cases ing to return. While he was absent from the than that applied in the English courts; and state he was proceeded against as a nonresident, it has done so with special reference to the and the court held that he was a nonresident, peculiar nature and condition of the local ti. In the case of Risewick v. Davis, 19 Md. 82,

within the meaning of the provision of the Code. tles that exist in the city of Baltimore." With-in disposing of an exception to evidence offered out detracting from the great weight and re

to show the intention of the defendant to return spect to which the authorities cited by appel- said: "Residence and domicile are sometimes

to the state at some indefinite time, the court lants are justly entitled, we must adhere to distinct things. In the Matter of Thompson, 1 the previous decisions of this court, and hold Wend. (N. Y.) 43, it was decided that residence that the lease in question did not place the out of the state, for the purpose of being sub

ject to foreign attachment, did not import_that property extra commercium, and that the domicile should be out of the state also. Frost rights of the parties under the covenants v. Brisbin, 19 Wend. (N. Y.) 14, 32_Am. Dec. therein are “not open to any of the objections 423. In Haggart v. Morgan, 5 N. Y. 428, 55 against perpetuities."

Am. Dec. 350, the defendant offered to prove

that at the time of taking out the attachment It follows, from what we have said, that he was not a nonresident, but a resident of the the decree of the court below must be af. city of New York; that he had been absent firmed.

about three years, attending a lawsuit at New

Orleans, and returned in the spring of 1818. Decree affirmed, with costs, and cause re

The judge excluded the evidence, on the ground manded.

tbat the offer itself showed the debtor to be a

nonresident, within the spirit of the act. In Supplemental Opinion.

the case at bar the defendant had been absent

four or five years, and non constat but he might Since the filing of the opinion in this case, be absent as many years longer. The evidence, our attention has been called to the agreement being foreign to the issue, should have been exof counsel and the certificate of the clerk of the cluded." circuit court of Baltimore City, filed in this Mr. Poe says: "It may be stated, as the recourt on the day of the argument, whereby it sult of the authorities, that where a citizen of appears that the petition and motion of Lee M. this state. domiciled here, goes abroad on busiHollander was set down for hearing by the ness or pleasure for a brief period, without any plaintiff. In the case of Paul v. Nixon, report intention of abandoning or changing his domicile, ed in a note to Jones v. Magill, 1 Bland, 177, and with a fixed purpose to return at a defiChancellor Hanson said: "If, indeed, the de- nite or specified time, retaining and intending fendant was entitled to have the case set down to retain, in the meantime, both his domicile for final hearing on bill and answer, it must be and political citizenship, he cannot properly be on terms similar to those of the complainants treated as a nopresident, within the meaning of setting down, viz., that everything contained in the attachment law, simply because of his temWhere, however, he leaves the state and remains The ordinance is as follows: absent for any considerable period, without any in tention of returning, or with the intention of that shall do or cause 'to be done, and every

"Sec. 3. Every person, firm or corporation returning at some indefinite time in the future, as circumstances may dictate or permit, he will owner of land who shall permit or 'suffer to be be liable to be proceeded against as a nonres

done, on said land within this town, any work ident, notwithstanding he may not have acquir- or labor of any kind whatsoever in or about the ed a fixed residence in any other state or coun- without a permit, shall be fined not less than

construction or reconstruction of any building try." 2 Poe's P. & P. (3d Ed.) $ 506.

On the facts stated in the petition, we think two or more than twenty dollars or be impristhe plaintiff had a right to proceed against the and every day's violation of any of the provi

oned not exceeding ten days for each offense; petitioner as a nonresident, and that, therefore, sions of this chapter after the service of the there was no error in the order of the court warrant issued on the first complaint thereof overruling the motion to quash the proceedings against him. As we have said, the plaintiff had shall be deemed a separate offense and shall subno right to have the matter set down for hear-ject the offender to the penalties herein before

enumerated.” ing on the petition and answer; but, as it appears he did so, we must assume that it was

It is conceded that the town of Lincoln has done with the petitioner's consent, and he, therefore, has no right to complain if the motion was no special statutory authority to enact buildproperly disposed of on the facts stated in his ing regulations, and that the validity of the petition.

ordinance must depend upon the concluding

paragraph of section 21, C. 40, Gen. Laws (29 R. I. 340)

1896, which is as follows: STATE 1. CREPEAU.

“And, generally, all other ordinances, regula(Supreme Court of Rhode Island. Dec. 29, tions and by-laws for the well-ordering, manag; 1908.)

ing and directing of the prudential affairs and

police of their respective towns not repugnant MUNICIPAL CORPORATIONS (8 624*)-ORDINAN to the Constitution and laws of this state, or CES_VALIDITY-BUILDING REGULATIONS. of the United States."

An ordinance providing that every person, firm, or corporation doing or causing to be done, There are two objections to this ordinance, and every owner of land permitting to be done, either of which is fatal to its validity. The any work in or about the construction or reconstruction of a building, without a permit, shall first is an entire lack of legislative authority be fined, etc., and making every day's violation to enact building regulations, inasmuch as of the ordinance after service of the warrant is the statute above cited clearly does not consued on the first offense a distinct offense, is fer such authority, and the second is the void for want of legislative authority; Gen. Laws 1896, c. 40, $ 21, authorizing towns to practically unlimited power assumed by the pass ordinances for the ordering of the pru- town council in this ordinance, such as was dential affairs and police of their town, notihus characterized in State v. Tenant, 110 N. repugnant to the Constitution and laws of the state or of the United States, not authorizing C. 609, 612, 14 S. E. 387. 388, 15 L. R. A. 423. the ordinance.

28 Am. St. Rep. 715: (Ed. Note.-For other cases, see Municipal "It is equally clear that, if an ordinance is Corporations, Cent. Dig. 8 1375; Dec. Dig. passed by a municipal corporation which upon § 624.*]

its face restricts the right of dominion which Rosanna Crepeau was convicted of violat- question, not according to any general or uni

the individual might otherwise exercise without ing an ordinance, and her motion in arrest of form rule, but so as to make the absolute enjudgment has been certified to the Supreme joyment of his own depend upon the arbitrary Court. Motion granted.

will of the governing authorities of the town or

city, it is unconstitutional and void, because it Charles R. Easton, for the State. Edwara fails to furnish a uniform rule of action and

leaves the right of property subject to the desW. Blodgett, for defendant.

potic will of aldermen, who may exercise it so

as to give exclusive profits or privileges to parBLODGETT, J. The complaint in this ticular persons.” case charges a violation of a certain ordi

In like manner, in Bostock v. Sams, 95 Md. nance of the town of Lincoln, in these words 400, 413, 52 Atl. 665, 668, 59 L. R. A. 282, 93 and figures, viz., that the respondent “did Am. St, Rep. 394, the court says: then and there, on the tenth day of May, 1907, permit and suffer to be done on her by the proviso in question, a power to control

"Notwithstanding the delicate power conferred land, within said town, work and labor in or the citizen in the exercise of important and valabout the construction of a building without uable rights of property, the power is conferred a permit, against an ordinance of Lincoln in the most vague and general terms, and an aforesaid, being section 3 of chapter 8 of unlimited and unregulated discretion is given to

an agency of the city government thereunder. said ordinances, and against the statutes and No standard is set up according to which this the peace and dignity of the state"; and, after judgment is to be exercised, nor means providbeing adjudged guilty, the respondent has ed by which it is to be instructed or controlled, moved in arrest of judgment on the ground exercise in any particular case.”

and the citizen is left helpless to question its that the town is without legislative authority to enact the ordinance in question, without

And in this case the court held that a statotherwise questioning the sufficiency of the utory provision that the city of Baltimore cbarge, and the case has been certified here might enact "such ordinances as it may deem under the provisions of section 478, Court expedient in maintaining the peace, good and Practice Act 1905.

government, health and welfare of the city of •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Baltimore" was insufficient to authorize the, the mortgage, with such deduction for interest building regulations then before the court. for the anticipated payment, or allowance for See, also, City of Newton v. Belger, 143 Mass. be ascertained and allowed by the court to

damages for such anticipated payment, as may 598, 10 N. E. 464.

which the execution is returnable, and the balThe decision of the court, therefore, is that ance shall be applied to the payment of the the ordinance in question is ultra vires and amount due on the execution.” void, and that the motion in arrest of judg.

A proper construction of the foregoing ment should be granted; and the papers in statute is determinative of the case. In our the case will be sent back to the district court opinion, the various sums which the judgof the Eleventh judicial district, with this ment creditor claims that he is entitled to decision certified thereon.

retain out of the money obtained from the

sale of the mortgaged property levied upon :29 R. I. 339)

by him constitute a portion of "the amount MCKENNA BROS. v. BROWN, Constable.

due on the execution," which amount is to be (Supreme Court of Rhode Island. Dec. 28,

paid out of the balance of the proceeds of 1908.)

sale remaining after payment of the amount EXECUTION (8 323*)—SALE-PROCEEDS-MORT- due on the mortgage. As there is no such GAGES-'AMOUNT DUE ON EXECUTION." balance of such proceeds, there is no fund

The expenses of an execution sale of mort- out of which such payment can be made. We gaged property is a part of the "amount due on the execution,” which amount is required by therefore decide that the plaintiffs are enCourt and Practice Act 1905, $ 629, to be paid titled to recover the full amount received out of the proceeds of the sale after payment for the property sold by the defendant, with. of the mortgage debt; and when the proceeds out any deduction, and with interest from the of an execution sale of personalty are insuffiçient to pay the mortgage debt the mortgagee date of the writ. is entitled to recover from the levying officer the The papers in said case, with our decision full amount of the sale, without any deduction certified thereon, are remitted to the district for such expenses. [Ed. Note. For other cases, see Execution, rection to enter judgment for the plaintiffs

court of the Sixth judicial district, with diCent. Dig. $ 957; Dec. Dig. $ 323.*]

upon the decision. Action by McKenna Bros. against Samuel Brown, constable. Case certified to the Supreme Court from the district court on agreed

(29 R. I. 365) statement of facts. Judgment for plain- RUHLAND v. WATERMAN, Town Clerk, tiffs.

et al. Joseph H. Gainer, for plaintiffs. John I. (Supreme Court of Rhode Island. Dec. 29, Devlin, for defendant.

1908.)

1. INTOXICATING LIQUORS ($ 25*)-LOCAL OPPER CURIAM. This case was certified to

TION-STATUTES-INVALIDITY. this court from the district court of the Sixth authorizing the submission at general election

The proviso in Gen. Laws 1896, c. 102, § 4, judicial district upon the following agreed in cities and towns of the question whether liqstatement of facts:

uor licenses shall be granted, if "a number of "The defendant, a constable in and for the qualified electors, equal in cities to 10 percentum county of Providence, on the 230 day of June, and in towns to 15 per centum of the vote cast 1908, 'attached the stock and fixtures of a bar. ing, shall petition therefor, etc., is void for un

for general officers at the election next precedSavastano, on which the plaintiffs held a chat certainty because it fails to establish a basis tel mortgage of $1,000. Said mortgage was words "qualified electors' are uncertain in mean

of mathematical computation, and because the made January 28, 1908, and was recorded in ing, and because the manner of ascertaining the the record office in Providence January 30, 1908, within five days from date, was proper in fact that the petitioners for a vote are qualified

electors is uncertain. form, and was given for an actual cash consideration of $1,000. The plaintiff in the writ of

[Ed. Note.-For other cases, see Intoxicating attachment against Savastano obtained" judg- Liquors, Cent. Dig. $ 31; Dec. Dig. $ 25.* ] mant and execution, and the defendant levied 2. STATUTES ($ 205*)–CONSTRUCTION-INVAsaid execution on above-described chattels, and LIDITY OF PROVISO-EFFECT. sold same at public auction. The sale brought Where the proviso to a section of an act is about $147. The plaintiffs claim, under section void for unconstitutionality or other reason, 629, Court and Practice Act 1905, that the en- nevertheless, though not enforceable, such invaltire amount received at sale should be turned id proviso cannot be disregarded in giving the over to them in satisfaction, as far as it will interpretation of the section. go, of their mortgage. The plaintiff in the writ

[Ed. Note.-For other cases, see Statutes, of attachment claims that under the statute, Cent. Dig. § 282; Dec. Dig. § 205.*] which provides that the proceeds of the sale shall be applied to the payment of the amount 3. INTOXICATING LIQUORS ($ 25*)-LOCAL OPdue on the mortgage,' he is entitled to retain

TION-ELECTIONS-STATUTES. the actual expense of sale, auctioneer's fee, $5,

Gen. Laws 1896, c. 102 (entitled "Of the advertising, $14, and rent of store where goods Suppression of Intemperance") § 4, authorizes were sold, $5, and pay the balance to the mort- the submission at general elections in cities and gagee."

towns of the question whether liquor licenses

shall be granted, and provides that no vote shall The statute above referred to reads as be taken on the question, unless a number of follows:

electors equal in cities to 10 per centum and in

towns to 15 per centum of the vote cast for gen“Sec. 629. The proceeds of the sale shall be eral officers at the preceding election shall petiapplied to the payment of the amount due on tion therefor. Held, that the section, when considered in the light of the history of liquor legis-, turning board, showing the number of ballation especially as to local option, continues the lots cast at the election held November 5, local option features of former statutes, and 1907 (being "the election next preceding”), makes this law applicable throughout the state under one general rule, and that the proviso is that the total number of votes (excluding in form void for uncertainty does not affect the blank and defective ballots) cast for general law.

officers was as follows: [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. $ 31; Dec. Dig. $ 27.*]

Whole State. Cranston.

For Governor. 4. INTOXICATING LIQUORS ($ 25*)-LOCAL OP

66,106

2,252

For Lieutenant Governor... 64,168 TION-STATUTES-VALIDITY.

2,181

For Secretary of State...... The provision in Gen. Laws 1896, c. 102,

64,015

2,183 $ 4, providing for the submission at general

For Attorney General...... 64,022

2,195 elections in cities and towns of the question

For General Treasurer...... 63,734

2,163 whether liquor licenses shall be granted, iş a

Totals complete provision, though the proviso thereof,

.....322,045

10,974 declaring that no vote shall be taken on the question unless a number of electors petition

Using these figures as the basis of computherefor, is stricken out because uncertain in tation, the 15 per centum required in the meaning.

town of Cranston would be either 48,307 sig(Ed. Note.-For other cases, see Intoxicating natures on the basis of the whole state) or Liquors, Cent. Dig. § 31; Dec. Dig. § 25.*]

1,647 signatures (on basis of Cranston alone). 5. STATUTES ($ 181*)–CONSTRUCTION-INTEN- On the former basis the number of signatures TION OF LEGISLATURE. The court in construing a statute must as

required would be more than twice as many certain the true intent of the Legislature. as the whole number of ballots cast at that

(Ed. Note.-For other cases, see Statutes, election in Providence, and on the latter basis Cent. Dig. § 259; Dec. Dig. § 181.*]

more than 70 per centum of the total num

ber of ballots cast in Cranston alone at that Petition by Lewis Ruhland for certiorari to review the action of Daniel D. Waterman,

election. The petitioner thereupon further making a certificate to the Secretary of State contended that, under either of these methWrit granted.

ods of computation, the petitions to the town

clerk would be insufficient to warrant the Edward D. Bassett, John W. Hogan, Ar- town clerk's action in certifying to the Secrethur P. Sumner, and Philip S. Knauer, for tary of State, as above set forth, for want of petitioner. William B. Greenough, Atty. a sufficient number of names. Another sugGen., for Secretary of State. Benjamin W. gestion offered to the court by counsel for Grim, for respondent Waterman.

respondents in this and other similar pro

ceedings was that the town clerk or city PARKHURST, J. In this cause the court clerk would be justified in taking the vote on the 23d day of October, 1908, filed a re- for governor in a town or city as the basis of script (71 Atl. 1).

computation; and it appeared, as to the town The first question that arises upon the pro- of Cranston and some other towns as to viso above quoted (Gen. Laws 1896, c. 102, which evidence was offered, that this method 4) is as to the meaning of the words "unless of computation was in fact used; it being a number of the qualified electors equal in argued that this, being the highest number cities to ten per centum, and in towns to of votes cast for any one of the general offifteen per centum, of the vote cast for gen-ficers, might fairly be regarded as indicating eral officers at the election next preceding, the vote cast for general officers,” and, at shall petition the city or town clerk therefor all events, as furnishing a safe basis of comat least twenty days prior to said election"; putation, as it would result in requiring a and this question subdivides into two others, larger number of signatures than would be riz.: (1) How shall the city or town clerks required under other methods to be hereafter determine the number of qualified electors mentioned. Other suggestions were that the necessary to a valid petition? (2) How shall average of the votes cast for the several genthe city or town clerks ascertain whether eral officers or the lowest number of votes the names appearing upon the petitions are cast for any general officer be taken as the the names of “qualified electors"?

basis of computation. It thus appears that The basis of computation as to the requir- five different solutions of the mathematical ed number of petitioners is a fixed percent problem set by the language under discusage of the "vote cast for general officers at sion were offered to the court for its conthe election next preceding”; and it was con- sideration. The court was not able to accept tended before us by the petitioner's counsel any of these solutions, for the plain reason that the only possible construction of these that they were not in accordance with the words must be either the sum of all the votes statute. The words are: "The vote cast for cast for each general officer in the whole general officers at the election next precedstate, or, at least, the sum of all the votes ing." It is plain that these words are not cast for each general officer in the particular equivalent either to the "sum of all the votes town or city where the electors petitioned the cast for each general officer in the whole clerk. Now, it appears from the printed “of- state," or to the "sum of all the votes cast ficial count,” etc., prepared by the state re- for each general officer in the town or city,”

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etc., and the results of such a construction | tions by the voting lists used at the last elecas worked out above show upon their face tion or by the voting lists made up at the that it would be a forced and unreasonable last canvass-meeting prior to the receipt of construction. It is equally evident that the the petition, and shall he require that the words under discussion are not equivalent to names on the petition shall be exactly the "the vote for Governor,” “the average of the same in all respects as to full names, abvotes cast,” or “the lowest number of votes breviations of Christian names, initials, and cast."

residences as appear on the voting list, so What, then, do the words “the vote cast for that he may prima facie be satisfied of the general officers” mean? After full argument identification and qualification of the signers and mature deliberation, we are forced to by comparison with the voting lists, and say that they have no meaning under our shall he reject all names other than those present methods of election. It is apparent which appear in identically the same form from reference to the above tabulation of and with the same residence as they appear “the votes cast for general officers” in the on the voting lists, or shall be use his own whole state, and in Cranston, at the “next knowledge and judgment as to accepting preceding election,” that each of the general names which do not appear upon the voting officers had a different number of votes. lists in the same form or do not appear at There are no means by which we can find all, determining for himself whether the any certain and particular number which can signatures are those of electors actually qualbe said to be “the vote cast for general of- ified at the time of signing the petition, or ficers." It might have been possible under our may he satisfy himself by inquiry or by takformer manner of voting before the Austra-ing or accepting evidence by affidavit or lian ballot came into use, and when, perhaps, otherwise as to the validity of the signaonly two political parties contested the elec- tures? It was earnestly contended by countion, that the result of an election might sel for the petitioner in this cause that the have shown the same number of votes cast town clerk must be governed solely by the for each general officer on the Republican voting lists in his custody or accessible to ticket and the same number of votes cast for him as the only record evidence of the qualeach general officer on the Democratic ticket; ification of voters, and that he should acand so it might have been possible to say cept as valid signatures only those which that “the vote cast for general officerg" un

were written in the same identical form as der such a state of facts would have been the sum of the votes cast for the two tickets. But appeared upon such voting lists, rejecting all this state of facts would have been only a

such as appeared in different form, whether possibility even in the past, because it is well by initials, abbreviation of Christian names,

different residences, or otherwise.

It apknown by all that even then the inalienable right of the voter to “split," "scratch," or peared in evidence that the town clerk used “scatter” was freely exercised. It is fully his own judgment as to accepting such sig. manifest, therefore, that the person who natures, relying upon their identity with the drafted the proviso in question and the Gen- names upon the voting lists in many, pereral Assembly which passed it failed to es-haps in the majority, of cases, but also retablish a basis of mathematical computation, lying in case of discrepancy upon his judg. and that this court is unable so to construe ment or knowledge of the signatures and the proviso in this regard as to give it mean- electoral qualifications. It is plain upon a ing. It is therefore void for uncertainty in

mere statement of these difficulties that it this respect.

would be practically impossible for this court There is also another uncertainty in the to define what is meant by the words "qualiproviso, in that it uses the term "qualified fied electors," as used in this proviso, so as electors” as the persons who may petition to derive from the language of the statute the town clerk or city clerk, and requires an intelligible general rule to be applied that they petition “at least twenty days prior throughout the state. Inasmuch, therefore, to said election." At once the question as we find it impossible to so construe the arises: “Qualified” when? Must they have words under consideration as to derive therebeen "qualified electors” at the next preced- from any rule, either as to the basis of coming election, or may they be persons whose putation of the number of names required to names have been placed upon the voting lists make a valid petition, or as to the method by at the last canvass meeting prior to the filing which the town clerk or city clerk shall de of the petition, or may they be persons who termine that the signers of the petition are may be qualified to vote at the next election, 'qualified electors," we are compelled to say although their names do not as yet appear that the proviso above set forth in full is upon the voting list, but may be placed there, void for uncertainty. if proper steps are taken prior to the elec- The final question that arises is whether tion? Again, a further question arises. How the fact that this proviso is void for uncer. shall it be ascertained that the petitioners tainty renders void the whole of section 4, are qualified electors? Shall the town or c. 102, or whether the proviso may be struck city clerk be governed in his decision as to out and the remainder of section 4 be allow

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