Powell v. Spackman

• Decision Date: 06 June 1901
• Citation: 7 Idaho 692,65 P. 503
• Parties: POWELL v. SPACKMAN
• Court: Idaho Supreme Court

65 P. 503

7 Idaho 692

POWELL v. SPACKMAN

Supreme Court of Idaho

June 6, 1901

ELECTIONS-CONSTITUTIONAL CONSTRUCTION.-A constitutional provision which provides that "for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence.... while kept at any almshouse or other asylum at public expense," 'preserves the voting status of the inmates of a soldiers' home at the time of their entry thereto, and such inmates cannot acquire, by reason of their presence in such soldiers' home, and while kept at public expense, the right to vote in the county and precinct in which such institution is located.

CONSTITUTIONAL CONSTRUCTION.-Where the language of a constitutional provision is plain and free from ambiguity, the ordinary signification of the words employed, as used in common parlance, must be considered, and the intent of the provision gathered from the words themselves, giving to them their usual meaning and signification.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with instructions. Costs of appeal awarded to the appellant.

Henry Z. Johnson, John J. Blake and Hawley & Puckett, for Appellant.

It will be seen from the agreed facts that the sole question presented for decision in this case involves the right of the inmates of the soldiers' home to gain a residence therein for voting purposes. Appellant insists that the votes cast at said election by the inmates of said institution are illegal and void, and invokes in his behalf the provisions of our constitution, article 6, section 3, which are as follows "For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of this state or of the United States, nor while engaged in the navigation of the waters of this state, or of the United States nor while a student of any institution of learning nor while kept at any almshouse or other asylum at the public expense." This provision of our constitution is similar to a like one to be found in the constitutions of many states, notably New York Michigan, Kansas, Pennsylvania and California, in all of which states, except California, it has been held that the inmates of the soldiers' home of those states, respectively, were not entitled to vote in the precinct where the home was located. (Silvey v. Lindsay, 107 N.Y. 55, 13 N.E. 444; Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Rep. 631, 50 P. 600; Wolcott v. Holcomb, 97 Mich. 361, 56 N.W. 838, 23 L. R. A. 215; Registration in Erie, Pa., County Court, Co-op. Dig. 1899, vol. 7, p. 2039; Matter of Goodman, 146 N.Y. 284, 287, 40 N.E. 769; Matter of Garvey, 147 N.Y. 117, 41 N.E. 439.)

Wyman & Wyman, for Respondent.

Under the common-law rule no one becomes a voter merely "by reason of his presence or absence" at a particular place, independent of any constitutional provision. ( Budd v. Holden, 28 Cal. 124; Devlin v. Anderson, 38 Cal. 92; Putnam v. Johnson (1813), 10 Mass. 488; Biddle v. Wing, Cl. & H. El. Cas. 504 (an early case in Congress cited in 10 Am. & Eng. Ency. of Law, 2d ed., p. 604); Bedigo v. Grimes (1887), 113 Ind. 148, 13 N.E. 700; Schaffer v. Gilbert, 73 Md. 66, 71, 20 A. 434; Vanderpool v. O'Hanlon (1880), 53 Iowa 246, 36 Am. Rep. 216, 5 N.W. 119; Paine on Elections, sec. 69; Dennis v. State of Florida (1879), 17 Fla. 389; Opinion of Justices (1843), 5 Met. (Mass.), 587; Hannon v. Grizzard (1883), 89 N.C. 115.) Residence in the legal sense is to be determined by the intent and act of the party. He cannot have two homes at once. It is a question of fact, and the intention is evidence of the fact. Mere actual residence, however prolonged, will not constitute legal residence unless accompanied with the intention of making the place a home. (Paine on Elections, sec. 47; McCrary on Elections, 4th ed., sec. 97; Story on Conflict of Laws, p. 44, sec. 46, subds. 7, 8, 13; Darrah v. Bird, 3 Ore. 229 at 233; 10 Am. & Eng. Ency. of Law, 2d ed., 598, 599.) Section 5, article 6 of the constitution, therefore, merely furnishes a rule of evidence by which their prima facie right to vote in and claim as their legal residence the precinct where the home is situated "by reason of their presence" there is taken away, but they must prove their right by other evidence, as was done in this case by evidence showing that they had abandoned their former homes, and made the soldiers' home their actual and permanent residence with the bona fide intent so to do," etc., the intent being evidence of the fact. (Fry's Election Case, (1872), 71 Pa. 302, 10 Am. Rep. 698, quoting Judge King from 1 Ashm. 126; Vanderpool v. O'Hanlon, 53 Iowa 246, 36 Am. Rep. 216, 5 N.W. 119; Lankford v. Gebhart, 130 Mo. 633, 51 Am. St. Rep. 585, 31 S.W. 1127; Darrak v. Bird, 3 Ore. 229; Wood v. Fitzgerald, 3 Ore. 568; People v. Holden, 28 Cal. 124.) Plaintiff merely showing that these persons were inmates of the soldiers' home is no evidence to show that they were not qualified voters. Plaintiff must affirmatively show some other facts from which it could be determined affirmatively that they were illegal voters, as the presumption is that anyone who votes is a legal voter. (Darrah v. Bird, 3 Ore. 229, 10 Am. & Eng. Ency. of Law, 2d ed., 835c; McCrary on Elections, 4th ed., sec. 466a; In re Green, 5 F. 145.) The constitution adopted by the state of Idaho in 1890 is taken from the constitution of California, and the decisions of that court upon what those provisions of the constitution meant were adopted with those provisions. This rule, that "by adopting a statute from a sister state the construction of the statute by the courts of the latter state is also adopted, is a general rule that is universally recognized. " (Flood v. McClure, 3 Idaho 587, 32 P. 255; Brown v. Bryan, 5 Idaho 145, 51 P. 1001; Sutherland on Statutory Construction, sec. 256, 337.) And this, of course, applies to the constitution, which is but the law by the people, as the statutes are laws enacted by the legislature, and this is particularly true of election laws. (See 10 Am. & Eng. Ency. of Law, 2d ed., subd. 2, p. 588, tit. "Elections.")

QUARLES C. J. STOCKSLAGER, J., concurring. SULLIVAN, J., Dissenting.

OPINION

QUARLES, C. J.

This action was commenced by the appellant, who is an elector of Ada county, to contest the election of the respondent, Hester M. Spackman, to the office of county superintendent of public instruction of said county, and who received a certificate of election to said office; whereas it is claimed by appellant that Miss Helen Coston was elected to said office, and should have received certificate of election thereto. A stipulation of facts was filed, and the case decided upon the same by the lower court. It is agreed in the stipulation that forty inmates of the soldiers' home, situated in soldiers' home precinct, in said county, voted for Miss Spackman, including which forty votes the votes of Miss Spackman was two thousand two hundred and ninety-nine and that of Miss Coston two thousand two hundred and ninety. It is also stipulated that these forty inmates never resided in said county except in said soldiers' home, the eighth paragraph of the stipulation being in words and figures as follows: "That at least forty of the said persons above referred to, and whose names are set forth in plaintiff's complaint, will testify that they abandoned their former residences and places of abode with no intention of returning thereto, and took up their residence in said soldiers' home in said soldiers' home precinct, Ada county, Idaho and thereafter resided and continued to reside therein with the intention of permanently remaining and residing there; and that each of said persons were, at the time of said election, and for six months prior thereto had been, residing at and as inmates of the soldiers' home in said Ada county, state of Idaho; and that at all times during their residence there the said soldiers' home was established under the laws of the state of Idaho and maintained at the public expense. That all of said persons above referred to were duly and regularly admitted to said soldiers' home under the terms and provisions of the act entitled 'An act to establish a soldiers' home,' passed at the second and fifth sessions of the legislature of the state of Idaho and approved March 2, 1893 [Sess. Laws 1893, p. 91], and February 9, 1899 [Sess. Laws 1899, p. 190], respectively, and hereinbefore referred to; and during all the time of their residence in said Ada county they were maintained in the said soldiers' home at the public expense." Judgment was given in favor of Miss Spackman, the respondent, from which judgment this appeal was taken.

This cause is to be determined upon a construction of article 6 of our constitution, especially section 5 of said article, which is as follows: "For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the state, or of the United States, nor while engaged in the navigation of the waters of this state or of the United States, nor while a student of any institution of learning, nor while kept at any almshouse or other asylum at public expense." Section 2 of said article of the constitution, as amended; provides that: "Except as in this article otherwise provided, every male and female citizen of the United States, twenty-one years old, who has actually resided in this state or territory for six months, and in the county where he offers to vote thirty days next preceding the election, if registered as provided by law; is a qualified voter." Section 3 of said article provides that parties who are...