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continuous intention to return, will not deprive one of his residence, even though it extend through a series of years.1

[* 601]

* Conditions to the Exercise of the Elective Franchise.

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

other place. If a seaman, without public expense; nor while confined in familyor property, sails from the any public prison. See Const. of place of his nativity, which may be New York, Illinois, Indiana, Caliconsidered his domicile of origin, fornia, Michigan, Rhode Island, Minalthough he may return only at long nesota, Missouri, Nevada, Oregon, intervals, or even be absent many and Wisconsin. In several of the years, yet if he does not by some other States there are provisions coractual residence or other means ac- ering some of these cases, but not all. quire a domicile elsewhere, he retains A provision that no person shall be his domicile of origin.” Shaw, Ch. deemed to have gained or lost a resiJ., Thorndike v. City of Boston, 1 dence by reason of his presence or Met. 245. And see Alston v. New- absence in the service of the United comer, 42 Miss. 186. In Inhabitants States, does not preclude one from of Abington v. Inhabitants of North acquiring a residence in the place Bridgewater, 23 Pick. 170, it ap- where, and in the time while, he is peared that a town line ran through present in such service. People v. the house occupied by a party, leav- Holden, 28 Cal. 123. If a man takes ing a portion on one side sufficient to up his permanent abode at the place form a habitation, and a portion on of an institution of learning, the fact the other not sufficient for that pur- of his entering it as a student will not pose. Held, that the domicile must preclude his acquiring a legal resibe deemed to be on the side first men- dence there; but if he is domiciled at tioned. It was intimated also that the place for the purposes of instrucwhere à house was thus divided, and tion only, it is deemed proper and the party slept habitually on one side, right that he should neither lose his that circumstance should be regarded former residence nor gain a new one as a preponderating one to fix his in consequence thereof. residence there, in the absence of That persons residing upon lands other proof.

And see Rex v. St. within a State, but set apart for some Olave's, 1 Strange, 51.

national purpose, and subjected to the

, By the constitutions of several of exclusive jurisdiction of the United the States, it is provided, in sub- States, are not voters, see Opinions stance, that no person shall be deemed of Judges, 1 Met. 580; Sinks v. Reese, to have gained or lost a residence by 19 Ohio, n. s. 306; McCrary, Law of reason of his presence or absence, Elections, § 29. while employed in the service of the 1 Harbaugh v. Cicotte, 33 Mich. United States; nor while a student in 241; Fry's Election Case, 71 Penn. any seminary of learning; nor while St. 302. kept at any almshouse or asylum at

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 are 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 another test to the qualifications of electors which the constitution * has prescribed, [ * 602] 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. 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

1 See Page v. Allen, 58 Penn. St. 2 Capen v. Foster, 12 Pick. 485; 338. The Supreme Court of Penn- People v. Kopplekom, 16 Mich. 342; sylvania held the contrary in Patter. State v. Bond, 38 Mo. 425; State v. son o. Barlow, 60 Penn. St. 51, which Hilmantel, 21 Wis. 566; State v. Bacase is in harmony with those cited in ker, 38 Wis. 71; Byler v. Asher, 47 the next note.

III. 101; Edmonds v. Banbury, 28

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 twenty-one 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 legislature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity of the ballotbox, 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 misconduct on the part of officers is comparatively small, when the duty is intrusted to those who are chosen in the locality where the reg. istry 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 Iowa, 270; Ensworth v. Albin, 46 Mo. to attend to the registry, voters may 450. As to the conclusiveness of the be disfranchised. Ibid. Ensworth registry, see Hyde v. Brush, 34 Conn. v. Albin, 46 Mo. 450. But informal454.

ities in a registry will not vitiate it, 1 People v. Kopplekom, 16 Mich. and canvassers cannot reject votes 342; Zeiler v. Chapman, 54 Mo. 502; because of them. State o. Baker, Nefzger v. Davenport, &c. R. R. Co., 38 Wis. 71. That a board of regis36 Iowa, 642. The law does not be- tration has judicial functions, see come unconstitutional, because of the Fansler 1. Parsons, 6 W. Va. 486; fact that, by the neglect of the officers 8. C. 20 Am. Rep. 431.

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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.

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. 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. 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 election, has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity ; but the right to hold the election comes from the statute, and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office, which the law requires shall be filled at the next general election, the time and place of which

1 Capen v. Foster, 12 Pick. 488; ties thereto “ shall not apply to clerks Monroe v. Collins, 17 Ohio, n. s. 665. or judges of election for refusing to Under the Constitution of Ohio, the receive the votes of persons having right of suffrage is guaranteed to a distinct and visible admixture of " white male citizens;' and by a long African blood, nor shall they be liaseries of decisions it was settled that ble to damages by reason of such persons having a preponderance of rejection.” Other provisions of the white blood were "white" within its act plainly discriminated against the meaning. It was also settled that class of voters mentioned, and it was judges of election were liable to an held to be clearly unreasonable, paraction for refusing to receive the vote tial, calculated to subvert or impede of a qualified elector. A legislature the exercise of the right of suffrage unfriendly to the construction of the by this class, and therefore void. constitution above stated passed an Monroe v. Collins, supra. act which, while prescribing penalties 2 Opinions of Judges, 7 Mass. 525; against judges of election who should Opinions of Judges, 15 Mass. 537. refuse to receive or sanction the re- People v. Porter, 6 Cal. 26; Mcjection of a ballot from any person, Kune v. Weller, 11 Cal. 49; People knowing him to have the qualifica- v. Martin, 12 Cal. 409; Jones v. State, tions of an elector, concluded with 1 Kan. 273; Barry v. Lauck, 5 Cold. a proviso that the act and the penal- 588.

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are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given ; and such election cannot be defeated by showing that a small portion only of the electors were actually aware of the vacancy, or cast their votes to fill it. But this would not be the case if either the time or the place were not fixed by law, so that notice became essential for that purpose.?

[* 604]

* The Manner of Exercising the Right.


The mode of voting in this country, at all general elections, is almost universally by ballot.3 “ A ballot may be defined to be a

People v. Cowles, 13 N. Y. 350; trustees, but for the first township People v. Brenahm, 3 Cal. 477; State meeting fifteen days' notice was made v. Jones, 19 Ind. 356 : People v. Hart- requisite An election was bolden, well, 12 Mich. 508; Dishon v. Smith, assumed to be under the act in ques10 Iowa, 212; State v. Orvis, 20 Wis. tion; but no notice was given of it, 235; State v. Goetze, 22 Wis. 363. except by the circulation, on the The case of Foster v. Scarff, 15 morning of the election, of an extra Ohio, n. s. 532, would seem to be newspaper containing a notice that contra. A general election was to be an election would be held on that day held, at which by law an existing at a specified place. It was held that vacancy in the office of Judge of Pro- the election was void. The act conbate was required to be filled. The templated some notice before any sheriff, however, omitted all mention legal vote could be taken, and that of this office in his notice of election, which was given could not be conand the voters generally were not sidered any notice at all. This case aware that a vacancy was to be filled. differs from all of those above cited, Nominations were made for the other where vacancies were to be filled at offices, but none for this, but a can- a general election, and where the law didate presented himself for whom itself would give to the electors all less than a fourth of the voters taking the information which was requisite. part in the election cast ballots. It In this case, although the time was was held that the election to fill the fixed, the place was not; and, if a vacancy was void.

notice thus circulated on the morning 2 State v. Young, 4 Iowa, 561. of election could be held sufficient, it An act had been passed for the in- might well happen that the electors corporation of the city of Washington, generally would fail to be informed, and by its terms it was to be sub- so that their right to vote might be mitted to the people on the 16th of exercised. See also Barry v. Lauck, the following February, for their 5 Cold. 588. That where the law acceptance or rejection, at an election provides for holding an election and to be called and holden in the same one is duly called, equity has no aumanner as township elections under thority to enjoin it, see Walton o. the general law. The time of notice Develing, 61 IIl. 201. for the regular township elections 8 The ballot was also adopted in was, by law, to be determined by the England in 1872.

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