Wolcott v. Holcomb | Cases | Westlaw

I cannot concur in the proposition that article 7, § 5, of the constitution of this state should be so construed as to deprive a citizen of his right to choose his *370 own residence, or to compel him to avail himself of the privileges of asylums or schools, at the cost of a citizen's privileges, by requiring him to retain a former residence, unaccessible, and to which he does not intend to return. It should not be assumed that those who inhabit almshouses or asylums are unworthy people, or that they have no interest in elections, or that they are disqualified from discharging the duties of the citizen understandingly and properly. It cannot be claimed that these men are disfranchised because, under the section, no one is denied the right to vote at his residence. Inmates formerly residing in the township where the asylum is situated do not lose their residences by reason of being such inmates, and, clearly, others retain their residences and the right to vote at their former domiciles, if they choose to do so. The only reason given for the construction contended for is that these classes are undesirable voters at the place of the asylum; that they pay no taxes, do no work for the benefit of the municipality, and have no interest in local affairs. The same may be said of many persons in all localities, and was probably as true of these before their admission as after. It is as true of those admitted from the locality of the asylum, who may vote under this section, as of those who come from a distance, who may not vote, under this construction. It never has been a requisite to electoral rights that the citizen should pay taxes, do work for the benefit of the municipality, or evince interest in municipal affairs. Nor does the right depend upon a wise, or even honest, exercise of the privilege of the ballot. Doubtless, there are many whose votes could be dispensed with, to the profit of all local municipalities, and the state as well, but the electoral franchise is based upon broader principles. There is no man so poor or low that he is not richer and manlier for his political equality, and *371 the ballot is essential to the protection of the rights of all classes. Immediately a class or race is disfranchised, its members are deprived of an equal chance with their fellows. This proposition is so important a **841 part of the foundation of our institutions that it should not be eliminated or weakened by any unnecessary construction of a constitution based upon civil liberty and political equality. Under this construction, a student who goes to our state university for a term of years, abandoning his residence, taking his family with him, residing in a house of his own, with no intention of living elsewhere after his education shall be finished, cannot gain a residence there, or lose his former one. It cannot be said that he is an undesirable voter, that he has no interest in local concerns, or that he is not a taxpayer there. The true construction of this section should be just what its language imports, i. e. that being kept in an almshouse, or attendance at college, or service in the employment of the United States, or the navigation of the lakes or high seas, does not work a change of residence, against the intention or desire of the individual. I have an acquaintance, the intelligent master of a great lake steamer, who is at home only occasionally; who comes home the day before election to vote,–a right which this section secures to him,–though absent most of the year. Will it be said that he cannot change his residence so long as his employment continues? It would seem that these things cannot have been intended, and that the rule indicated is the reasonable one, viz. that the section was designed for the benefit of, and to enlarge and protect the rights of, these classes, not to deprive them of privileges common to all. The opinion of the late Mr. Justice Campbill is in accord with this view, as appears from a dictum in the case of Warren v. Board, 72 Mich. 401, 40 N. W. Rep. 553, where he cites this section after stating that: *372 “Our own constitution is full on this subject, where it lays down expressly, what would perhaps be implied, that certain continuous presences or absences shall have no effect on elective residences.” And he adds: “These provisions do not prevent such persons from becoming residents, if such is their purpose, and if they are able to choose.”

The case of Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. Rep. 444, which is relied upon as authority by counsel for respondent, is reconcilable with this view, and does not appear to go to the extent of holding the doctrine contended for. In that case, a vote was rejected because the voter did not show himself to be a resident of the township. His vote being challenged, he answered as follows: “I answer that I reside in the town of Bath, for the reason that I was admitted an inmate of the New York Soldiers' and Sailors' Home, in this town, by the authorities thereof, in the year 1880, and have remained such inmate from that time to the present, with the intention, at all times, of making my residence in said institution, so long as I shall be permitted to remain such inmate. At the time of my admission to said institution, I was an honorably discharged soldier of the United States, and a resident and voter of the city of New York. I therefore answer that I am a resident of the town of Bath. In becoming an inmate of said institution, I intended to change my residence from the city of New York to the fifth election district of said town of Bath.” It will be observed that after stating the facts of his former residence, and his admission to the Soldiers' Home, and his intention of making his residence in said institution as long as he should be permitted, he argues, “I therefore answer that I am a resident of the township of Bath.” The opinion says: “It is obvious that his narration of an intention to change his residence to Bath, and his assertion that he resided in Bath, can be accepted only as conclusions from the circumstances detailed in connection with them. They were his conclusions, and the defendants, in view of his whole statement, were not bound by them. They were bound by *373 the facts stated, and were required to say, upon those facts, whether the plaintiff was qualified in the necessary particular; and, undoubtedly, they were to determine the question at their peril. The constitution, in the section referred to supra, specifies the qualifications necessary to the elective franchise, and provides who shall have the right to vote; and one duly qualified cannot be deprived of that right by an inferior tribunal. But the constitution also provides (article 2, § 3:) ‘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 United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison.’ And the decision of the inspectors of election was that, in their opinion, the intending voter was in Bath as a mere inmate of the institution, and for a temporary purpose, and not as a resident of the voting district, or with intent to make the town a fixed or permanent place of residence, and so it would seem. His presence there was eleemosynary in its character. He was there as a dependent, because he had no means of support, or relatives to maintain him, and liable to be discharged whenever the board of trustees were satisfied that he was of sufficient ability or means to support himself. Rules and regulations of the home. As to the home, he was a beneficiary, and nothing else. As to Bath, his residence was a beneficiary's residence, and no other. His relations were not with the village, but with the institution, which was situated within its borders. His intention to remain was conditioned upon, and limited to, the duration of the charity which he enjoyed. His intention to remain in Bath depended upon his expectation to remain at the home. This gave no **842 residence, for he was there only in the character of a beneficiary, for a temporary purpose. His only intention, in going to Bath, was to be an inmate of the home; and it was only as such inmate that his residence was to be continued. He was not there as a citizen changing his residence, but as an object of well-bestowed and deserving charity. He was, as is clear upon his statement, present in Bath, and at the institution, because he was then kept (that is, supported) at public expense. ‘I reside in Bath,’ he says, ‘for the reason that I was admitted to the home as an inmate.’ He *374 continues there with the intention of making his residence in the institution ‘so long,’ he says, ‘as I shall be permitted to remain an inmate.’ These reasons satisfy the conscience of the plaintiff, and enable him to say that he was a resident of Bath; but, in reality, they bring the case within the prohibition of the constitution. He could not gain a residence by being an inmate, which means nothing more than his presence in the home; and, excluding that, there is nothing in the case to show that a residence in Bath had been acquired. It follows that he has not lost the right to vote in the place of his legal residence,–New York,–for the provision of the constitution in question also declares that he shall not lose his residence by reason of such presence in the institution. As to that city, he is to be regarded as temporarily absent, and his residence as a citizen still therein. We have no doubt that the institution in question is within the purview of the constitutional provision (article 2, § 3) above referred to. It is an asylum supported at the public expense, and its members are within the mischief against which that provision is aimed,–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.” If this language should create the impression that the section of the constitution does more than to negative an implication of a change of domicile from the fact of residence in the institution, the next paragraph of the opinion settles the question, clearly showing that the court did not intend to hold that inmates of a soldier's home could not acquire a residence in the locality of the home, and, to my mind, clearly implying that, had the voter stated that he entered said home with the intention of abandoning his former domicile, and making a new one in the locality of the home, the decision would have been different, and that, instead of supporting respondent's contention, the case contains a plain dictum to the contrary. It is as follows: *375 “But the question in each case is still, as it was before the adoption of the constitution, one of domicile, or residence, to be decided upon all of the circumstances of the case. The provision (article 2, § 3) disqualified no one, confers no right upon any one. It simply eliminates from those circumstances the fact of presence in the institution named, or included within its terms. It settles the law as to the effect of such presence, and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere. We think, therefore, the question submitted by the parties, viz. ‘Did James Silvey gain a residence in the town of Bath, so as to entitle him to vote at said town meeting, by reason of his presence as an inmate of said institution?’ should have been answered in the negative; and it is so answered by this court. In my opinion. the writ should issue as prayed.