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§ 463a. “Resident in Any State.”

We have explained generally the privileges and immunities of the people belonging to the Commonwealth, and accounted for the absence from the Constitution of any express declaration or reference to such privileges or immunities; we now come to the consideration of those privileges and immunities created by and dependent upon State laws which are the only ones coming within the purview of sec. 117. This section as drawn prohibits the imposition of disabilities and discriminations by a State against the people of another State. It would be impossible, however, to grasp the significance of this prohibition without some consideration of the privileges and immunities with respect to which such disabilities and discriminations may be enacted.

STATE PRIVILEGES AND IMMUNITIES.—In the exercise of its reserved powers each State will have exclusive authority to legislate concerning the rights, privileges, immunities, and obligations of the people. In fact the whole domain of civil liberty, except that assigned to the Federal authority, is subject to the jurisdiction of the State. A complete enumeration of the matters belonging to that domain, and dependent upon State law, would be too complicated and too lengthy to present, but a fair summary has been given by an eminent American Judge:—

“The privileges and immunities of State citizenship are all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the citizens of other States, may be mentioned as some of the principal privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental. (Per Washington, J., in Corfield v. Coryell, 4 Wash. C.C. 380.)

“Other Judges, while approving of this general enumeration, have been careful to say that they deem it safer and more in accordance with the duty of a judicial tribunal to leave the meaning to be determined in each case upon a view of the particular rights asserted therein. And especially is this true when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are


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of such a character that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief.” (Cooley's Const. Law, p. 207.)

Such being some of the fundamental privileges and immunities within the power of a State to confer, we are now in a position to consider the nature of the limitations imposed by sec. 117. This section provides that a subject of the Queen resident in one State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. Its object is to establish a sort of inter-state reciprocity in the enjoyment of privileges and immunities created by and dependent upon State laws. This reciprocity is secured by the inhibition that a qualified resident in one State shall not, in his dealing or connection with another State, be liable to any disability or discrimination which would not be applicable to him if he were a qualified resident in that other State.

Residence is an elastic word which may be modified by the context. (Exp. Breull, re Bowie [1888], 16 Ch. D. 484; Lewis v. Graham [1888], 20 Q.B. D. 780.) Its ordinary meaning is the place where a person lives; that is, where he usually eats, drinks, and sleeps, or where his family or servants eat, drink, and sleep. (Per Bayley, J., in Rex. v. North Curry [1825], 4 Barn. and Cress. 959; and see Notes, pp. 477, 776, supra.) In this section, “a resident in any State” means a person who permanently lives in a State; one who is not a mere visitor or sojourner; one who by his continued residence in a State has become identified with it and is regarded as one of its people.

The privileges and immunities contemplated by this section are those which belong to resident subjects of the Queen in a State. The States are not forbidden to impose disabilities and make discriminations in laws relating to aliens. It is assumed that the resident subjects of the Queen will be the most favoured people and the special object of State consideration and solicitude. Hence the Constitution interposes and as a matter of national policy seeks to secure equality of treatment, in all the States, for subjects of the Queen resident in any State of the Commonwealth.

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