Berry v. Wilcox

• Decision Date: 19 February 1895
• Docket Number: 6052
• Citation: 62 N.W. 249,44 Neb. 82
• Parties: DENNIS C. BERRY, APPELLANT, v. H. G. WILCOX, APPELLEE
• Court: Nebraska Supreme Court

62 N.W. 249

44 Neb. 82

DENNIS C. BERRY, APPELLANT, v. H. G. WILCOX, APPELLEE

No. 6052

Supreme Court of Nebraska

February 19, 1895

APPEAL from the district court of Lancaster county. Heard below before TUTTLE, J.

AFFIRMED.

Abbott Selleck & Lane, for appellant, cited: Fry's Election Case, 71 Pa. 302; Dale v. Irwin, 78 Ill. 170; Vanderpoel v. O'Hanlon, 53 Iowa 246; Pedigo v. Grimes, 13 N.E. [Ind.], 703; Biddle v. Wing Clarke & Hall, Digest of Contested Elections, 504 Barnes v. Adams, 2 Bartlett, Cases of Contested Elections, 760.

Atkinson & Doty, contra, cited: Behrensmeyer v. Kreitz, 135 Ill. 591; Dale v. Irwin, 78 Ill. 170; Paine, Elections, secs. 69, 70; Sturgeon v. Korte, 34 Ohio St. 535; Putnam v. Johnson, 10 Mass. 487; Lincoln v. Hapgood, 11 Mass. 350; Sanders v. Getchell, 76 Me. 158.

OPINION

IRVINE, C.

At an election held in the city of University Place, in Lancaster county, April 7, 1891, Berry and Wilcox were candidates for city clerk. The whole number of votes cast was 116, of which Wilcox received sixty-three and Berry fifty-three. Berry instituted this proceeding to contest the election on the ground that illegal votes had been received on behalf of Wilcox sufficient to change the result. In the county court there was a judgment for the incumbent, from which the contestant appealed to the district court, where a hearing was had with the same result, and the contestant now appeals to this court. The parties entered into a stipulation in regard to the facts, and this stipulation constitutes the only evidence in the case. From the stipulation it appears that seventeen votes were cast for Wilcox by students of the Wesleyan University, which has its seat in University Place. The result depends upon the right of these students to vote, and their right depends solely upon the question of their residence in University Place, it being conceded that they had all other qualifications of voters.

The facts as to the residence of these students appear from the stipulation as follows: "That they had been attending Wesleyan University and living in University Place from the commencement of the school year, some time during the month of September, 1890; that their main purpose in going to and remaining in University Place was to attend said university for the purpose of obtaining an education; that all the said students had, previous to and immediately preceding the time they went to University Place for the purpose of attending the university, resided with their parents in different parts of the state of Nebraska, but were not dependent upon said parents for their support; that each of the said students expected to remain at said University Place during such time as their studies demanded until they had completed their college course; that none of the said students remained at said University Place during the vacation, but went wherever they could secure employment; that all of said students were uncertain and undecided as to their future course or place of residence upon the completion of their college course; that they did not have any special residence in view; that said students were all unmarried men without any business relations or connections at any other place, and that they were not engaged in any other business than that of attending the university; that none of said students were under parental control and that they regarded University Place as their home; that none of said students had at the time of voting any intention of removing from University Place before the completion of their studies, and that when they took their summer vacation they expected to return to the university upon the opening of the term." It is upon the foregoing facts that the question of their residence must be determined.

Our attention is called to chapter 26, section 32, Compiled Statutes, which provides that the judges of election and registrars of voters, in determining the residence of a person offering to vote, shall be governed by certain rules established in that section. But section one of article seven of the constitution prescribes the qualifications of voters: "Every male person of the age of twenty-one years or upwards belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward, for the term provided by law, shall be an elector," etc. It is the constitution, then, which requires residence as a qualification for voting, although the legislature may fix the term of residence required in a county, precinct, or ward. What constitutes residence within the meaning of the constitution is, therefore, a judicial question and not one for the legislature. The question is, what did the word "reside" mean when the constitution was adopted, not what the legislature may say it shall mean. This is very clear. The constitution says likewise that "every male person," etc., shall be an elector. It would be clearly incompetent for the legislature to extend this provision to females by passing an act declaring that in determining who are male persons, judges of election shall consider both men and women such. We do not say that the section referred to has no force; merely that it cannot be accepted as in anywise enlarging or limiting the provisions of the constitution. We do not even say that the rules prescribed by that section are not correct rules for determining the question of residence; but if they are so, it is because there are only declaratory of the previous law and not because the legislature has adopted them. We therefore proceed with the inquiry without any special reference to this statute. The generally accepted definition of "residence," when the term is used with reference to the qualification of voters, is synonymous with "domicile,"--"that place * * * in which his habitation is fixed, without any present intention of removing therefrom." (Story, Conflict of Laws, 43.) The older cases and some of the modern ones require as an essential element the animus manendi , and construe this term as meaning an intention of always remaining. The supreme court of Iowa must have adopted this rule in the case of Vanderpoel v. O'Hanlon, 53 Iowa 246, 5 N.W. 119, for in that case it was held that a student at the state university was not a resident of Iowa City, although he did not know what he would do after he graduated, and was not aware that he would leave Iowa City. The case referred to is one of the latest cases in which this extreme view is taken, and the opinion cites with approval the Opinion of the Judges, 5 Metc. 587, and Fry's Election Case, 71 Pa. 302. The former case we shall refer to later. Fry's Election Case is a carefully considered case, and its...