*

township. This is the general rule; and for the more convenient determination of the right to vote, and to prevent fraud, it is now generally required that the elector shall only exercise within the municipality where he has his residence his [* 600] right to participate in either local or general elections. Requiring him to vote among his neighbors, by whom he will be likely to be generally known, the opportunities for illegal or fraudulent voting will be less than if the voting were allowed to take place at a distance and among strangers. And wherever this is the requirement of the constitution, any statute permitting voters to deposit their ballots elsewhere must necessarily be void.1

A person's residence is the place of his domicile, or the place where his habitation is fixed, without any present intention of removing therefrom.2 The words "inhabitant," "citizen," and "resident," as employed in different constitutions to define the qualifications of electors, mean substantially the same thing; and one is an inhabitant, resident, or citizen at the place where he has his domicile or home. Every person at all times must be considered as having a domicile somewhere, and that which he has acquired at one place is considered as continuing until another is acquired at a different place. It has been held that a student in an institution of learning, who has residence there for purposes of instruction, may vote at such place, provided he

1

1 Opinions of Judges, 30 Conn. 591; Hulseman v. Rems, 41 Penn. St 396; Chase v. Miller, ib. 403; Opinions of Judges, 44 N. H. 633; Bourland v. Hildreth, 26 Cal. 161; People v. Blodgett, 13 Mich. 127; Opinions of Judges, 37 Vt. 665; Day v. Jones, 31 Cal. 261. The case of Morrison v. Springer, 15 Iowa, 304, is not in harmony with those above cited. So far as the election of representatives in Congress and electors of president and vice-president is concerned, the State constitutions cannot preclude the legislature from prescribing the "times, places, and manner of holding" the same, as allowed by the national Constitution, art. 1, § 4, and art. 2, § 1, and a statute permitting such election to be held out of the State would consequently not be invalid. Opinions of Justices, 45 N. H. 595; Opinions of Judges, 37 Vt. 665. There are now constitutional provisions in New York, Michigan, Missouri, Connecticut, Maryland, Kansas, Mississippi, Nevada, Rhode Island, and Pennsylvania, which permit soldiers in actual service to cast their votes where they may happen to be stationed at the time of voting. It may also be allowed in Ohio. Lehman v. McBride, 15 Ohio, N. s. 573.

2 Putnam v. Johnson, 10 Mass. 488; Rue High's Case, 2 Doug. (Mich.) 523; Story, Confl. Laws, § 43.

3 Cushing's Law and Practice of Legislative Assemblies, § 36.

is emancipated from his father's family, and for the time has no home elsewhere.1

1 Putnam v. Johnson, 10 Mass. 488; Lincoln v. Hapgood, 11 Mass. 350; Wilbraham v. Ludlow, 99 Mass. 587. "The questions of residence, inhabitancy, or domicile for although not in all respects precisely the same, they are nearly so, and depend much upon the same evidence- are attended with more difficulty than almost any other which are presented for adjudication. No exact definition can be given of domicile; it depends upon no one fact or combination of circum'stances; but, from the whole taken together, it must be determined in each particular case. It is a maxim that every man must have a domicile somewhere, and also that he can have but one. Of course it follows that his existing domicile continues until he acquires another; and vice versa, by acquiring a new domicile he relinquishes his former one. From this view it is manifest that very slight circumstances must often decide the question. It depends upon the preponderance of the evidence in favor of two or more places; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in another place. If a seaman, without family or property, sails from the place of his nativity, which may be considered his domicile of origin, although he may return only at long intervals, or even be absent many years, yet if he does not by some actual residence or other means acquire a domicile elsewhere, he retains his domicile of origin.” Shaw, Ch. J., Thorndike v. City of Boston, 1 Met. 245. And see Alston v. Newcomer, 42 Miss. 186. In Inhabitants of Abington v. Inhabitants of North Bridgewater, 23 Pick. 170, it appeared that a town line ran through the house occupied by a party, leaving a portion on one side sufficient to form a habitation, and a portion on the other not sufficient for that purpose. Held, that the domicile must be deemed to be on the side first mentioned. intimated also that where a house was thus divided, and the party slept habitually on one side, that circumstance should be regarded as a preponderating one to fix his residence there, in the absence of other proof. And see Rex v. St. Olave's, 1 Strange, 51.

It was

By the constitutions of several of the States, it is provided, in substance, that 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 a student in any seminary of learning; nor while kept at any almshouse or asylum at public expense, nor while confined in any public prison. See Const. of New York, Illinois, Indiana, California, Michigan, Rhode Island, Minnesota, Missouri, Nevada, Oregon, and Wisconsin. In several of the other States there are provisions covering some of these cases, but not all. A provision that no person shall be deemed to have gained or lost a residence by reason of his presence or absence in the service of the United States, does not preclude one trom acquiring a residence in the place where, and in the time while he is present in such service. People v. Holden, 28 Cal. 123. If a man takes up his permanent

*Conditions to the Exercise of the Elective Franchise. [*601]

While it is true that the legislature cannot add to the constitutional qualifications of electors, it must nevertheless devolve upon that body to establish such regulations as will enable all persons. entitled to the privilege to exercise it freely and securely, and exclude all who are not entitled from improper participation therein. For this purpose the times of holding elections, the manner of conducting them and of ascertaining the result, are prescribed, and heavy penalties are imposed upon those who shall vote illegally, or instigate others to do so, or who shall attempt to preclude a fair election or to falsify the result. The propriety, and indeed the necessity, of such regulations is undisputed. In some of the States it has also been regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. Under such a regulation, the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions concerning the right of individuals to exercise this important franchise. Electors, also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has sometimes been claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconstitutional and void, as adding

abode at the place of an institution of learning, the fact of his entering it as a student will not preclude his acquiring a legal residence there; but if he is domiciled at the place for the purposes of instruction only, it is deemed proper and right that he should neither lose his former residence nor gain a new one in consequence thereof.

That persons residing upon lands within a State, but set apart for some national purpose, and subjected to the exclusive jurisdiction of the United States, are not voters, see Sinks v. Reese, 19 Ohio, N. s. 306.

another test to the qualifications of electors which the [* 602] constitution has prescribed, and as having the effect, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fundamental law.1 This position, however, has not been generally accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised.2 Such regulations must always have been within the power of the legislature, unless forbidden. Many resting upon the same principle are always prescribed, and have never been supposed to be open to objection. Although the constitution provides that all male citizens twentyone years of age and upwards shall be entitled to vote, it would not be seriously contended that a statute which should require all such citizens to go to the established place for holding the polls, and there deposit their ballots, and not elsewhere, was a violation of the constitution, because prescribing an additional qualification, namely, the presence of the elector at the polls. All such reasonable regulations of the constitutional right which seem to the legis lature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity of the ballot-box, are not only within the constitutional power of the legislature, but are commendable, and at least some of them absolutely essential. And where the law requires such a registry, and forbids the reception of votes from any persons not registered, an election in a township where no such registry has ever been made will be void, and cannot be sustained by making proof that none in fact but duly qualified electors have voted. It is no answer that such a rule may enable the registry officers, by neglecting their duty, to disfranchise the electors altogether; the remedy of the electors is by proceedings to compel the performance of the duty; and the statute, being imperative and mandatory, cannot be disregarded. The danger, however, of any such

See Page v. Allen, 58 Penn. St. 338.

2 Capen v. Foster, 12 Pick. 485; People v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425; State v. Hilmantel, 21 Wis. 566; Byler v. Asher, 47 Ill. 101; Edmonds v. Banbury, 28 Iowa, 270; Ensworth v. Albin, 46 Mo. 450. As to the conclusiveness of the registry, see Hyde v. Brush, 34 Conn. 454.

3 People v. Kopplekom, 16 Mich. 342. The law does not become unconstitutional, because of the fact that, by the neglect of the officers to attend to the registry, voters may be disfranchised. Ibid.; Ensworth v. Albin, 46 Mo. 450.

misconduct on the part of officers is comparatively small, when the duty is intrusted to those who are chosen in the locality where the registry is to be made, and who are consequently immediately responsible to those who are interested in being registered.

All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do, they must be declared void.1

In some other cases preliminary action by the public authorities may be requisite before any legal election can be held. If an election is one which a municipality may hold or [* 603] not at its option, and the proper municipal authority decides against holding it, it is evident that individual citizens must acquiesce, and that any votes which may be cast by them on the assumption of right must be altogether nugatory.2 The same would be true of an election to be held after proclamation for that purpose, and which must fail if no such proclamation has been made.3 Where, however, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed,' notwithstanding the officer, whose duty it is to give notice of the

1 Capen v. Foster, 12 Pick. 488; Monroe v. Collins, 17 Ohio, N. s. 665. Under the Constitution of Ohio, the right of suffrage is guaranteed to “white male citizens"; and by a long series of decisions it was settled that persons having a preponderance of white blood were "white" within its meaning. It was also settled that judges of election were liable to an action for refusing to receive the vote of a qualified elector. A legislature unfriendly to the construction of the constitution above stated, passed an act which, while prescribing penalties against judges of election who should refuse to receive or sanction the rejection of a ballot from any person knowing him to have the qualifications of an elector, concluded with a proviso that the act and the penalties thereto "shall not apply to clerks or judges of election for refusing to receive the votes of persons having a distinct and visible admixture of African blood, nor shall they be liable to damages by reason of such rejection " Other provisions of the act plainly discriminated against the class of voters mentioned, and it was held to be clearly unreasonable, partial, calculated to subvert or impede the exercise of the right of suffrage by this class, and therefore void. Monroe v. Collins, supra. * Opinions of Judges, 7 Mass. 525; Opinions of Judges. 15 Mass. 537. People v. Porter, 6 Cal. 26; McKune v. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409; Jones v. State, 1 Kansas, 273; Barry v. Lauck, 5 Cold. 588.