Commonwealth v. Kunzmann

Decision Date22 May 1862
Citation41 Pa. 429
CourtPennsylvania Supreme Court
PartiesThe Commonwealth <I>versus</I> Kunzmann.

The ten days' residence required by the constitution, is not an absolute requirement as to where the elector shall vote. It is only adding another qualification to those that were necessary under the old constitution. Under that instrument, citizens, in order to enjoy the right of an elector, were required to have a residence in the state and to have paid a tax. The new constitution adds to these, a residence in an election district.

The object of this was to require a fixed residence of at least ten days, in order to prevent electors from voluntarily voting wherever they chose, or wherever they happened to be on the day of the election. The ten days' qualification has no more to do with fixing the place where the elector should vote, than the residence in the state for one year has.

A soldier who volunteers under the military laws and is in the field under a requisition of the President of the United States, does not thereby lose his residence. That is still at the home from which he is only temporarily absent. He may possess all the qualifications of an elector, including ten days' residence in an election district, in Philadelphia county.

If he vote in camp the same as if he were personally present at the election district where he resides, all the requirements of the constitution are substantially complied with.

And if the vote deposited in camp be forwarded to the return judges, and taken into and counted in the general return, there can be no substantial difference whether his vote is so taken and counted through the intervention of the officers of his company, who are authorized by law to send it, or of the election officers of the district where he resides. The result it produces is the same, though it travels through a different channel.

The volunteer therefore, who, in the words of the Act of Assembly, exercises the right of suffrage as fully as if he were present at the usual place of election, to all intents and purposes, actually votes at such place. He is as responsible for the act, as if he were actually present at the poll of the election district where he resides, and voted there.

The view that ten days' residence in an election district, is only an additional qualification necessary to enable the citizen to enjoy the rights of an elector, and not a direction or requirement as to where the elector should exercise the right of suffrage, is sustained by the resolution of the General Assembly of this Commonwealth of April 26th, A. D. 1844: Purdon 376, pl. 48.

Under this act hundreds of persons annually offer to vote, and vote in the election districts where they have not resided ten days immediately preceding the election. The elector who has resided in an election district eight days immediately preceding an election, and who leaves that district and goes to the election district where he has not resided ten days immediately preceding the election, but only the ninth and tenth days immediately preceding said election, votes without objection under existing laws.

The legislative construction on this article of the constitution, as well as the interpretation by the people, seems to be, that the ten days' residence in the election district immediately preceding the election, means simply a residence of ten days in some election district, and not a requirement or direction as to where the elector shall actually vote.

As the constitutional provision does not require an elector actually to vote in the election district where he has resided ten days immediately preceding an election, and as he may in some cases vote in other districts, and as the legislature has provided in the one case an election district where an elector shall vote, who has removed within ten days immediately preceding an election — and such law is admitted to be constitutional — why may not the legislature enact a law to provide an election district to enable a volunteer, who is fully qualified, to exercise the right of suffrage?

An election district is the creature of the statute and not of the constitution, and where the statute creates an election district for the purpose of receiving the votes of electors qualified to vote under the laws and constitution of the Commonwealth, such enactment cannot be said to violate either the spirit or the letter of that instrument.

The law allowing volunteers in actual military service under a requisition from the President of the United States, or by the authority of this Commonwealth, on the day of a general election, to vote at said election at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong, was in force at the time of the adoption of the Constitution of 1839. Its existence must have been well known to the framers of that instrument, but they inserted no prohibition to interfere with it, but left the legislature perfectly free to provide the means for securing to the volunteers the exercise of the right of suffrage. There is no reason why the volunteer should lose this right while in the service of the country. The legislature, by enactment of the 43d section, has provided the only means of securing to them the exercise of this right; and before the court annul such a statute, they must be satisfied that it directly contravenes the express language and meaning of the constitution of the state.

George M. Conarroe and F. Carroll Brewster, for defendant in error, contended:—I. That the 43d section of the Act of Assembly passed July 2d 1839, referred to in the indictment, is unconstitutional and void, and that said section is in conflict with the 1st section of the 3d article of the constitution of this Commonwealth, which provides that "every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote ten days immediately preceding such election, and within two years paid a state or county tax which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector." The plain, common meaning of this clause is manifest. The voter must offer his vote where he resides. The constitution is expressed in words familiar to the million. Those words must have their plain, obvious, and natural meaning: 6 W. & S. 114. Constitutions require a strict construction. The words of the constitution furnish the only test to determine the validity of a statute: Sharpless v. City, 9 Harris 162; Wolcott v. Wigton, 7 Ind. 48; 9 Wheat. 188; 3 Seld. 9.

The Act of 2d July 1839, under which the right of voting by the volunteers is claimed, is a transcript of the Act of 29th March 1813, which was constitutional within the state, as the Constitution of 1790 did not require an elector to reside in a particular election district. The transcript of it, passed in 1839, was reported almost verbatim in 1834, by the commissioners to revise the civil code of this state, four years before the constitution was amended so as to require the voter to "reside in the election district where he offers to vote." The legislature, we submit, re-enacted the provisions of the Act of 1813 without noticing their repugnancy to the Constitution of 1838.

Four things are required by the present constitution: 1. That the elector be a resident; 2. That he shall have resided in an election district; 3. That his residence shall have been in the election district where he offers to vote; 4. That he shall have resided in such district ten days immediately preceding the election.

The checks and guards provided by the Election Law are nullities outside of the state limits. Opportunities for and incentives to the commission of fraud are enormously increased, and the district restriction in the present constitution was inserted expressly to prevent such frauds: Debates in Pennsylvania Convention, vol. 9, pp. 296-318. The experience of the recent elections in the camps proves the wisdom of the convention. The residence of a voter is his fixed, permanent home, from which he enlisted when he entered into the military service: Story's Confl. of Laws, §§ 50, 51; Warren v. Thomaston, 43 Maine 406; 10 Pick. 77; 1 Binn. 349, note; 1 Bouv. Inst. 99; 11 Mass. 350; Williams v. Whiting, Id. 427; Auld v. Walton, 12 Lon. Ann. 142; 8 B. Monroe 6; Thomas v. Owens, 4 Maryl. 223; McDaniel's Case, 3 Penna. Law J. 310. See also Kneass's Case, 2 Pars. 578, 81; Catlin v. Smith, 2 S. & R. 268.

II. The said 43d section does not authorize an election to be held outside of the state of Pennsylvania. The language which is relied upon as conferring such authority, merely provides that the qualified citizens in actual military service "may exercise the right of suffrage at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong." The only proper construction, it is submitted, to be given to this section, is that the right of suffrage may be exercised at such place within the state as may be appointed by the commanding officer. This is so: 1. Because upwards of twenty ...

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4 cases
  • State v. Columbian Nat. Life Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • February 1, 1910
    ...was not at the time actually or constructively within the state, or a citizen of this state. McBride v. Fidelity & C. Co., supra; Comm. v. Kunzmann, 41 Pa. 429. ...
  • Commonwealth ex rel. Hensel v. Severn
    • United States
    • Pennsylvania Supreme Court
    • October 22, 1894
    ...J. Whitehouse with him, for appellant, cited: R.R. v. Phila., 124 Pa. 219; Phila. v. R.R., 142 Pa. 484; Com. v. Green, 58 Pa. 234; Com. v. Kunzmann, 41 Pa. 429; Cooley's Lim. 178; Craig v. Church, 88 Pa. 46; Boro. v. McGee, 3 W.N. 33; Dorsey's Ap., 72 Pa. 192; Bechert v. Allegheny, 85 Pa. 1......
  • Com. v. Shook
    • United States
    • Pennsylvania Superior Court
    • December 14, 1967
    ...165 Pa.Super. 536, 69 A.2d 447 (1949). Normally a crime can be punished only within the state where it is committed. Commonwealth v. Kunzmann, 41 Pa. 429 (1862). Since the defendant's child was born in Illinois, at least superficially Illinois would seem to have jurisdiction of the bastardy......
  • McCoy v. Kalbach
    • United States
    • Pennsylvania Superior Court
    • October 14, 1912
    ... ... responsible for his acts, and a person within the ... jurisdiction of the court is entitled to the protection of ... the laws of the commonwealth. Not to be arrested without a ... proper information. I want to see the case referred to by Mr ... Niles. I would not say that was larceny in ... Delaware, so as to enable him to make proper demand for his ... return. This was followed in Commonwealth v ... Kunzmann, 41 Pa. 429, in which it is said, " There ... are insuperable objections to any criminal court in this ... state, taking cognizance of any of the ... ...

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