Merrill v. Shearston
| Decision Date | 02 April 1923 |
| Docket Number | 10578. |
| Court | Colorado Supreme Court |
| Parties | MERRILL v. SHEARSTON. |
Error to Adams County Court; G. A. Garard, Judge.
Contest of election by Ben Shearston against Walter P. Merrill. Judgment for contestor, and contestee brings error and asks for a supersedeas.
Supersedeas denied, and judgment affirmed.
Paul W. Lee, of Fort Collins, and J. Paul Hill, of Brighton, for plaintiff in error.
Harry S. Class and Harry Behm, both of Brighton, for defendant in error.
This is an election contest involving the office of the county treasurer of Adams county. The plaintiff in error was declared elected on the face of the returns. The defendant in error contested the election, and the matter was heard in the county court of Adams county, finding and judgment for the contestor. The contestee brings error and asks for a supersedeas.
The question for determination is as to the right of the inmates of the Fitzsimons Hospital to vote in precinct 23 of Adams county. This hospital was constructed and is maintained by the United States government for the treatment of soldiers and exsoldiers afflicted with tuberculosis. It appears from the evidence, quoted in the briefs, that there were, at the time of the election in question, between 1,100 and 1,200 patients in the hospital; that they are under the control of the United States Veterans' Bureau; that they may be sent, at any time, by the government medical authorities, to any other hospital in the district, and will be discharged and removed from the hospital whenever they are deemed cured. How many of these patients voted does not appear, but it is conceded that, if the patients of the hospital who voted, and who were held not qualified to vote were in fact not qualified, the judgment is correct. The right of the nurses and civil employees of the hospital to vote is questioned, but we do not find it necessary to pass upon that question. There is no dispute as to the facts.
Defendant in error relies upon article 7, § 4, of the Constitution which reads as follows:
'For the purpose of voting and eligibility to office, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while in civil or military service of the state, or of the United States, nor while a student at any institution of learning, nor while kept at public expense in any poorhouse or other asylum, nor while confined in public prison.'
Defendant in error contends that a hospital, such as this, falls within the term 'asylum' as used in the constitutional provision in question. Webster defines asylum as 'an institution for the protection or relief of some class of destitute, unfortunate or afflicted persons.' In Lawrence v. Leidigh, 58 Kan. 594, 50 P. 600, 62 Am.St.Rep. 631, the word, as used in the Kansas Constitution, is defined as 'an institution for the protection and relief of the unfortunate.'
Inmates of soldiers' homes are generally entitled to stay there indefinitely, and there would be much more reason for holding that they might acquire a voting residence, at such home, than there would be in the instant case, as to the patients. Yet in Silvey v. Lindsay, 107 N.Y. 55, 13 N.E. 444, and Wolcott v. Holcomb, 97 Mich. 361, 56 N.W. 837, 23 L.R.A. 215, it was held that the word 'asylum,' in a constitutional provision like that under consideration, included a soldiers' home; and that inmates thereof did not, by residing in such home, acquire a domicile, and a right to vote in that district. In both cases it was held that residence in such an institution partook of the character of the institution, and was likewise eleemosynary, that the inmates have no connection with local municipal government, and that they were there only in the character of beneficiaries, for a temporary purpose. The cases recognize that the purpose of the provision is to prevent the control of municipal affairs by persons who have no pecuniary interest in them. In one case it is said on this subject:
'This provision of the Constitution is aimed at the participation of an unconcerned body of men in the control through the ballot box of municipal affairs in whose further conduct they have no interest, and from the mismanagement of which by the officers their ballots might elect they sustain no injury.' In re Cunningham et al., 45 Misc. 206, 91 N.Y.S. 974.
The reasoning in these cases applies with full force to the facts of the instant case. The patients in the hospital have no interest in the affairs of Adams county, and yet they might, by their united votes, determine a matter of great local interest.
We cite these cases only upon the meaning of 'asylum' and as establishing principles, which, whether or not applicable to soldiers' homes, are certainly applicable to hospitals, which have none of the characteristics of a home.
Under the authorities, an inmate of an asylum, or a student attending school, is not, by this constitutional provision, prevented from becoming a voter in the place where the school or asylum is situated. The holding is solely that the right to vote is not gained by a mere residence at the place; but, if it exists, it must be shown by acts entirely distinct from such residence. In re Barry, 164 N.Y. 18, 58 N.E. 12, 52 L.R.A. 831.
In 20 C.J. p. 72, it is said of this question:
'The facts to establish a change of residence must be wholly independent and outside of his presence in the district as a student, and should be very clear and convincing to overcome the natural presumption.'
This is the law announced in Matter of Goodman, 146 N.Y. 284, 40 N.E. 769. See, also, Matter of Garvey, 147 N.Y. 117, 41 N.E. 439.
Regardless of this constitutional provision, the patients in this hospital are not, under the statute (section 2146, R. S. 1908), entitled to vote. According to that section a voter's qualification includes a residence of one year in the state, 90 days in the county, 30 days in the city or town, and 10 days in the ward or precinct. Presence in the hospital, under the circumstances shown, does not, under the decisions of this court, constitute residence such as is required by the statute.
In Sharp v. McIntire, 23 Colo. 99, 46 P. 115, in discussing this statute, we said:
In Jain v. Bossen, 27 Colo. 423, 62 P. 194, it is...
To continue reading
Request your trial
-
State Farm Mut. Auto. Ins. Co. v. Progressive N. Ins. Co.
...and it turned on the definition of residence in the Election Code for the purposes of voter registration); Merrill v. Shearston, 73 Colo. 230, 214 P. 540, 541 (1923) (this was an election case where the issue was whether hospital inmates could vote). State Farm does not explain why the goal......
- City of Brighton & Cirsa v. Rodriguez
-
Rothfels v. Southworth
...306; Powell v. Spackman, 7 Idaho 692, 65 P. 503, 54 L.R.A. 378; State ex rel. Wendt v. Smith, Ohio App., 103 N.E.2d 822; Merrill v. Shearston, 73 Colo. 230, 214 P. 540; 18 Am.Jur. 224, Sec. 66; 29 C.J.S. Elections Sec. 25; McCrary on Elections, 4th Ed., Sec. 89; Paine on Elections, Sec. 62;......
-
Israel v. Wood
...this is exactly what has been done. In other words, the Constitution is not merely overlooked; it is nullified. 4. In Merrill v. Shearston, 73 Colo. 230, 214 P. 540, there were involved certain votes cast by inmates of the Fitzsimons General Hospital, which of course differs widely from a p......