The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-08-07
FIRST EDITIO N
THE REGISTRY LAW AGAIN.
The Status of Lodgers in Private
Boarding -Houses-A Decision
by the Court of Com
mon Pleas.

made by John {. Smith, native OF THIS state,
and a resident of this city for twenty-seyen
years, for a mandamus against the assessors OF
the Fifth ward compelling them to assess him
as a private resident, according to the new
Registry law, which was opposed on the ground
that, though the house in which he lived, south
east corner of Fourth and Spruce streets, was
private clearinghouse, yet the lower story OF
it was used as tavern, which circumstance de-
priyed him of the right to be placed upon this
list. The question was argued by MIR Sellers
for the petitioner and Mr.. Dropsie for the rs ses-
sors, and Judge Brewster, having been enabled
to consult only Judge Allison, who concurfed
in his views this morning delivered the follow
ing OpiniOn:-
In the CoUrt qf Common Pleas for the CHy and County
Of PhlodePhia Com10On"edHh eG Ttioton. John
c. Smith U.s. George CdHC ami Hector " tit.HtS.
OPINION BY JUDGE BREWSTER.
This is an application for an alternative manda-
mus. Regularly, the writ should issue and the de-
iendants demur, plead, or answer Counsel have,
however, argued it as if a demurrer had been filed,
and as they are anxious for speedy decision,
have considered the question without regard to the
form in which it has been presented.
The relator AYERS that he is a citizen that he
boards and lodges with Joseph GarwOod, at the
southeast corner of Fourth and Spruce streets, and
tina. the assessors have refused to insert his name
on the division transcript because the lower story of
the clearinghouse is occupied as tavern, which,
it is alleged, is not connected in any way with the
rest of the building lie therefore claims that he is
a "private resident actually residing with private
hOusekeeper and as such clearly entitled to regis
raton under the second clause of the twentyseventh
section Of the act approved Aprl Il, 1867 commonly
| called the Registry law.
The relaor further argues that he is not within the
prohibition of the third clause OF said section which
| excludes from registration the persons "boarding
| at any hotel tavern, sailors DOardng-hOuse
| or restaurant" 1t is evident that the question
! presented is Of great practical importance in the
execution of this law, for If we hold that man re-
| siding in private boardnghouse cannot be placed
upOn the division transcript, shall certainly sub
iect a very numerous and respectable class OF cit
! zens to serious Inconvenience. | do not see why
the proprietor OF private boardlng-house is not
| private hUusekeeper. Shall we say that the house
is not private because the head of the family boards
| his son. and if taking relative to board does
change the character of apriyae house. is it affected
by receiving stranger as lodger? 1t Will hardly be
contended that it is any the less a private
! house because it contains one such person;
and the moment that is admitted there is an end of
| this diflcultv for we cannot draw the line and say
one, two or six persons may lodge in house and it
| still be priUate, but that the moment it receives
seven it becomes p"b4c house. The true distinc-
| tiOn is perfectly well understood. The public house
is for the entertainment of all who come lawfully and
pay regularly. The bOarding-hOuse is for the accom-
mediation only of those who are accepted 9s guests
| by the proprietor. Such an establishment is as much
| private house as if there were no boarders. The
thought for the boarding included by the third
| clause is the sailors bourding4house Other board
| lighthouses are untouched by the prohibition.
It seems to be very clear that when the Legislature
excluded only the residents OF sailors boarding
houses they did not intend to Interfere with the
occupants Of other bOardng-hOuses. do not refer
in this connection to the hotel tavern restaurant
for though each of these places may be used
lodging places they are not known to the public
nor are they treated in the statute. as boarding.
! houses.
The maxms "EXpressio unius est eXclusio alte-
| rius," "ENprcssum lacit Cessare tacitum," though
| generally applied TO deeds ana instruments of
statutes See Atkinson VS.. Fell g Maule 4 Sell. 24O)
King VS.. Bell, 7. f. r., 800. King vs. Cunningham,
| 3 East, 479.
In the argument of King VS.. Woodland, East. 1855,
the Attorney ey-General, Law, and Mr.. Rancock
agreed that the mention of coal mines in the statute
Cf 43 EliZ c. q was in exclusion of all other mines,
and this was repeated by Mr.. Justice Grose
1t would seem, therefore, that All bOardng-hOuses
| arc Of
| 9th section of this act
| tavern, although sit is not connected in any way
with the rest Of the building brings the OcCupan
| OF the clearinghouse within the prohibition which
Orbids the assessors from placing on the list the
| name of any person boarding at any hotel, tavern
| sailors boarding house. or restaurant"
According to the petition, which is uncontradicted
this reator does not board at any place named in
the clause just quoted. The law does not say tha
no person shall be assessed who resides in @ build
ing any part of which shall be occupied as tavern,
| but to be excluded from the list he must actually
board at some of the places mentioned II IS very
| box from the frauds practised 10y persons who
hoard OF pretend to board at such establishments
| and that If We allow the taYern-keeper to keep
lOaTding house above his baG-rOOm in the name OF
person merely used as a cover, We may virtually
Iullify the law for all the boardcrs in that esta
| llishment will claim to be placed on the list
But we must OF course be governed by the words
before us If it were alleged that this tavern was
! connected with the bOarding-hOuse in any way the
rcatOr would occupy different position Here there
is allegation against the bona fdes Of the keeper of
the tavern the proprietor of the boardng-house or
the relator. We have nothing look at but the petit
ton. II alleges, already seen, case within the
| law and cannot decide to the contrary upon mere
suspicion unsustained by even allegation.
We do not deem il an objection to the petition that
the TelatOr Omts to alcge that his boarding house is
not sailors clearinghouse. This, as already SEEM
Is a matter of defense for the respondents, and
although every ntendmcnt is against the pleader in
the statement of his title, still he Is never required
to anticipate matter Of defense.
"lhe rule is " said Mr. Justice Ashurst in Spers VS..
Parker q T. II, l45), 'that any man who VIII bring
an action for a penalty on an act Of Parliament must
| show himself entitled under the enacting clause
but if there be a subsequent exemption, that Is q
matter OF defense, and the other party HusI SNOW II
| TO exempt himself from the penalty"
| Upon the points originally argued by cOunsel we
therefore Of OpnoE that the case s WIN the re-
| latOr, but there are difficulties IN ms Way,, Whch
| were suggested upon the motion ana Which nave
not been dlspeled by the Argument or by subsequent
| reflection.
TO hold five other meetings, and aJ any one o these
sessions the TGlatOr can present hnscll, ana upon
. making the affidavit ana submitting the proof re-
CURED he secure the insertion OF MS name upon
So too, under the 8st section upon due proof that
his claim is well founded, the relatOr can secure the
| entry of his name upon the cahVassers llsL Ihe
| insertion of his name upon any one OF these tran
scTpts secures all his rights, Tor the nnal register IS
made up Of all the lists combined
| lie has, therefore, two remedies provided 10y TINS
| very statute and failing in both he may then pos
| siby have the right to a mandamus .--
| That the existence OF another remedy IS Iatal 10
| the present application must pc very eyluShI from
| even sght examination of the authorities. In
Com. vs.. St. Mary's Church Y Blhn sou MI Justlce
Yeates collected the English cases 10 IhaJ uaIe ana
| deducCd therefTOm the following Tules = - ,.
| 1st That in order TO secure the VIII manuamus,
| there must be a specific legal rlght anu . , -
2d T6at there must adda3 that st Is an u n
| supeTable obstacle to this application thaJ the law
has provided for Mr.. Corkrin an adequate remedy"
| The same rule has been applied IN REX vs. Gus
| toms Com nissiOnprs Ad, X ELL, 8S0); Rex Vs.