#### George Helle v. Deerfield Township.

1. Road Labor—Liability Under the Statute.—The statute (R. S., Chap. 131, Sec. 83. Hurd’s Ed. 1899, p. 1483) provides that every able-bodied male inhabitant above the age of twenty-one and under the age of fifty years (with certain exceptions), shall be required to labor on the highways in their respective road districts not less than one nor more than three days in each and every year.

3. Same—Definition of the Term ‘ ‘ Inhabitant. ”—The term ‘ ‘ inhabitant ” is defined in law to be one who has a legal settlement in a town, city or parish, and is synonymous with the word “ resident,” which is more generally used in this country and probably better understood.

3. Same—Who is a Resident, a Question of Fact.—The question as to whether a person is or is not a resident of a certain road district, so as to be liable to taxation therein, is one of fact for the jury.

4. Same—Evidence that a Person Voluntarily Submitted to be Taxed in Another District, When Competent.—On the trial of the issue as to whether a person is a resident of a road district so as to be liable to taxation therein for road purposes, it is competent for the jury to consider the fact that such person had voluntarily submitted to be taxed and paid his tax in another township where he claimed a residence with his father.

Action for a Penalty, for a failure to labor on the highways or pay commutation. Appeal fro'm the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding.

Heard in this court at the May term, 1901.

Reversed and remanded.

Opinion filed September 11, 1901.

O. J. Boyer, attorney for appellant.

Chipeefield & Chieerfield, attorneys for appellee.

Mr. Justice Weight

delivered the opinion of the court.

This was a suit against appellant to recover the penalties provided by statute for a failure to work upon the roads or commute the same, in District 3, Deerfield Township, Fulton County. The trial by jury resulted in a verdict of guilty, and a penalty of $4 was assessed against appellant, for which the court gave judgment against him, after overruling his motion for a new trial, and to reverse this judgment he prosecutes this appeal to this court.

Appellant was assessed for road labor in District 3, Deer-field Township, where he' had a saw mill. While working *643at his saw mill, he was unmarried, and lived in a tent a part of the time, and boarded part of the time, but claimed his residence with his father in Cass Township of the same county, and was assessed and paid poll tax in the latter place, which the court, on objection, excluded from the evidence, and held, in the presence and hearing of the jury, “ the way the proof stands now I will have to hold that the defendant was an inhabitant of Deerfield Township at the time these lists were made up and was not a resident of Cass.” The statute (Chap. 121, Sec. 82) provides that every able-bodied male inhabitant above the age of twenty-one years and under the age of fifty years, with certain exceptions, shall be required to labor on the highways in their respective road districts, not less than one nor more than three days in each and every year; and by a subsequent section (101) it is provided that every person assessed and duly notified, as provided by law, who shall not commute, or who shall refuse or neglect to appear, shall forfeit to the town for every day’s refusal or neglect the sum of two dollars.

The vital issue in this case was of which district appellant was an inhabitant, and which of the districts in question was his district, within the meaning of the statute. The word “ inhabitant ” is to be given its ordinary significance as used in the statute. Webster defines inhabitant to mean one who dwells or resides permanently in a place, as distinguished from a transient lodger, or visitor; as, an inhabitant of a house, a town, a city,county or state (Law); one who has a legal settlement in a town, city or parish; a permanent resident. We thus see that an inhabitant is synonymous with resident, the latter word being more generally used in this country, and probably the better understood. It was therefore a question of fact to be determined by the jury, from all the evidence in the case, of which district appellant was a resident, and for the purpose of the statute the district of which he was a resident would be his district, as it is not to be understood, unless the meaning was plain to the contrary, that the legislature intended the inhabitant *644should be assessed in more than one district. It was therefore prejudicial error for the court, as it did by its ruling that we have already noticed, to take this question away from the jury. The question of residence being one of fact to be decided by the jury, it is also largely one of intention of the party concerned, and in this particular it was competent for the jury to consider the fact that appellant had voluntarily submitted to be taxed, and paid the same in Cass Township, where he claimed his residence with his father, and it was error for the court, as it did, to exclude such evidence.

In so far as the rulings of the court upon instructions given or refused are inconsistent with the views herein expressed they were erroneous.

For the errors indicated the judgment of the Circuit Court will be reversed and the cause remanded for a new trial. Reversed and remanded.