Te anu chet te i satire Th f Wait Mie rahe: Tele @ Hee baa orb } plibe bed dle fu hehe manta ya tielae hn ania iis Elstree sere at See EA aN i aa Pee aie taki ive Sigel ; x ; ! rated Sa) ROM A ie rr eae pS lg Rt heel th wor ye ey pep wh Weg dogs he eters frie p apne rt rte hey igh hel Pitan Cree nm Di ; i a fe i Bait jaa Ppa econ fg a it i de tinfeae fed oy obad ibrary Caw School L Gurnell Cornell University Library The law of suffrage and elections THE LAW OF SUFFRAGE ayn LKLECTIONS. BEING A COMPENDIUM OF CASES AND DECISIONS SHOWING THE ORIGIN OF THE ELECTIVE FRANCHISE, AND DEFINING CITIZENSHIP AND LEGAL RESIDENCE, TOGETHER WITH THE CLAUSES OF THE STATE CONSTITUTIONS PRESCRIBING THE QUALI- FICATIONS FOR SUFFRAGE, AND THE LAW GOVERNING THE CONDUCT OF ELEC- TIONS IN THE SEVERAL STATES. WITH AN APPENDIX CONTAINING THE PROVISIONS OF THE UNITED STATES CONSTITUTION AND REVISED STATUTES REGULATING THE ELECTION OF PRESIDENT, SENATORS AND REPRESENTATIVES. rae ; yet By M. D. NAAR, COUNSELOR-AT-LAW. TRENTON, N. J.: NAAR, DAY & NAAR, PRINTERS, 1880. HGS Entered according to Act of Congress in the year 1880, By M, D. NAAR, In the Office of the Librarian of Congress, at Washington, D. C. KE 4¢86 NI] DepIcaTION. TO THE VOTERS OF THE UNITED STATES OF AMERICA, IN WHOSE HANDS 3 A FREE BALLOT, FEARLESSLY AND INCORRUPTIBLY USED, MUST EVER BE THE BEST MEANS OF MAINTAINING PURE AND FREE GOVERNMENT, AND OF PRESERVING PUBLIC LIBERTY, THIS VOLUME IS RESPECTFULLY DEDICATED BY ONE OF THEIR NUMBER. THE AUTHOR. PREFACE. As no right is equal in importance, to a self-governing people, to the elective franchise, so nothing is more im- portant to the citizen than a knowledge of the conditions under which and the methods whereby the right may be exercised. There is hardly an election which does not give rise to some question concerning the qualification for suffrage—the place where and the manner in which the citizen may vote, how the ballot must be counted, and the powers and duties of those who make the count. These questions have been adjudicated upon from time to time, but the adjudications are scattered through many volumes. The design of the present book is to state, and illustrate by explanatory quotations, within the pages of a single volume, and in a form intelligible to the general reader, the principles of these decisions, with references to cases which will serve the professional reader as a guide to the authorities on the subjects treated. Trenton, N. J., May, 1880. ConTENTs. Chapter I.—Citizenship and Suffrage .............ccsesseeseeeeseeceeeresonsenees 1-9 Chapter II.—The State Constitutions.......0...0..:c:ccccneecsseeseeeee vereneeee 11 Chapter ILI.—Computation of Time........0......cceee ccs eeeeee eeeee seneee 73 Chapter IV.—Suffrage Residence..............cccccececcceeeceveceneveae seeeeeees 75 Chapter V.—The Conduct of Elections...........ccccceceeseeseseeseeseecee ees 123 Chapter VI.—Ineligible Candidates..............:.ccccceceeeseeeesceereneeeeees 163 Chapter VII.—Registration Laws..............s.cceeccseees sss lad susacotaiee 175 Chapter VITI.—Taxes and Suffrage. .........:sccsssccseseseeeeseeeeersesesereaee 189 Chapter IX.—Alieng—Naturalization............ccc.cscceeseeeeetseeeeeesseene 193 Chapter X.—Liability of Election Officers.........sssscereseees ceeeeeesee 209 Chapter XI.—Bribery and Corruption.............c-csseesseseeeteeteeenneeeees 215 Chapter XII.—Election Contests ............-::eceseeeceeteseeeseeeteaneenesees 229 Chapter XIII.—Commissions—Their Effect and Revocation............ 243 Appendix—Election of Federal Officers............ccssssssssee cossestesceeees 249 Taste or Castzs. Abington v. North Bridgewater, 2, Boston, 88. Anderson v. Baker, 2, 11, 210, Colson, 241. Milliken, 213. Heriot, 85. Anthony v. Halderman, 6, 36, 73. Appeal of Peace, 21. Arnold v. Lea, 136. Ashby v. White, 210. Attorney General v. Barstow, 55, 158, 160. Augustine v. Eggleston, 127, 149. Bacon v. York, 158. Baldwin v. Bridges, 225. Trowhridge, 114, Ballenger v. Lantier, 95. Bantmeyer v. Iowa, 250. Barker v. People, 8. Barnes v. Adams, 135. Board of*supervisors, 123. Battery v. Megany, 135. Bayard v. Klinge, 148. Bayntun v. Cattle, 226. Beal v. Ray, 153. Beardstown v, Virginia, 77, 195. Bell v. K., Law Rep., 77, Berry v. Lauck, 245, Beavers v. Smith, 93, 194. Bevard v. Hoffman, 210, 211. Biddle v. Willard, 165. Biddle and Richards v. Wing, Cl. & H., 239. Blake v. Tucker, 140. Blanchard v. Storms, 214. Boardsman v. House, 79. Bolton v. Good, 151, Bonner v. State, 241. Boyd v. Beck, 77. Bradley v. Lowry, 80. Bradwell v. The State, 250. Bratton v. Bingham, 80. Seymour, 141. Bridge v. Lincoln, 16. 84.| Bridgeport v. Railroad, 148. Brightly’s Leading Election Cases, 75, 76, 77. Bromer v. O’Brien, 157. Brown v. The United States, 194. Cadwallader v. Howell, 30, 86, 91. Calais v. Marshfield, 194. Candall v. The State of Nevada, 250. Cannon v. McPherson, 127. Capen v. Foster, 176, 180, 185. Cardigan v. Page, 225. Carleton v. Whitcher, 225. Carpenter v. Ely, 127, 139. Carter v. Harrison, 210. Case v. Clarke, 77, 79, 106. Castine v. Smith, 42, 190. Castor v. Mitchel, 106. Catlin v. Smith, 189, 191. Caulfield v. Bullock, 211. Cessna v. Myers, 113. Chadmunk v. Melvin, 125. Chadwick v. Melvin, 124. Chaine v. Wilson, 83. Chapman v. Ferguson, 187. Chase v. Miller, 42, 107. Chisolm, Ex’r, v. Georgia, 250, Claridge v. Evelyn, 150, 169. Clark v. Buchanan, 161. McKenzie, 240. Cleland v. Porter, 124. Clements’ Case, 231. Cobb v. Lucas, 140. Cochran v. Jones, 43. Commonwealth v. Baxter, 134, 234. Clory, 16. Cluley, 170. Commissioners, 125, 133, 237. Lee, 210. Paper, 202. Read, 149. Sheriff, 210. Wekper, 145, TABLE OF CASES. Cornith v. Brady, 87. Corlis v. Corlis, 131. Costen v. Mitchell, 79. Craigie v. Lewin, 94. Crawford v. Wilson, '76, 84. Crowell v. Lambert, 234. Cryer v. Andrews, 193. Culley v. Balt. & O. R. R., 2 Cullen v. Morris, 210. Dale v. Irwin, 105, 123, 124, 198. Darden v. Wyatt, 121. Darrah v. Bird, 98. Davis v. Hal’, 194. DeBonneval v. DeBonneval, 94. Delano v. Morgan, 135. Demertt v. Lyford, 204. Devlin v. Anderson, 48, 95. Dickey v. Hurburt, 124. Dilling v. Murray, 204. Dishon v. Smith, 127, 128, 157. Draper v. Johnson, 191. Dred Scott, etc., 1, Druline v. State, 145, Duke v. Ashbee, 225. Easton v. Scott, 135. Elbers et al. v. The United Insur- rance Company, 88. Elbin v. Wilson, 213. Ensworth v. Albin et al., 186. Everett v. Smith, 148. Ewing v. Filley, 245. Thompson, 244, Exeter v. Brighton, 86. Ex parte Heath and Roome, 181, 156. Scott, 196. Farley v, Bunk, 105. Ferris v. Adams, 223. First National Bank vy. Balcon, 89. Fleet v. Young, 140. Foster v. Hall, 75. Scarff, 125. 152. Franklin vy, Talmadge, 141. Fry’s Appeal, 42. Election case, 100, 102, 106. Frost v. Brisbin, 79, 83. Gates v. Neal, 213. Gadsden y. Johnson, 93. Garforth v. Fearon, 224. Giddings v. Clark, 239. Gibbons v. Shepherd, 135. Gillespie v. Palmer, 32, 213. Gilleland v. Schuyler, 123, 125, Gosling v. Veley, 169. Granby v. Amherst, 85, 88. Greenleaf v. Low, 130. Griffin v. Wall, 77. Groton v. Waldoborough, 225. Gulick v. New, 164, 166. Hadley v. City of Albany, 235. Hairsville v. Hairston, 77, 90. Harbaugh v. Cicott, 89. Hardenburg v. Bank, 127. Hardy v. Deleon, 79. Harkins v. Arnold, 121. Harper v. Greenback, 135. Harris v. Whitcomb, 16. Harrison v. Harrison, 80. Hadley, 265, 285, 286. Harrington v. Du Chatel, 224. Harvard College v. Gore, 77, 86, 206. Hegeman v. Fox, 79. Henrietta v, Ox, 79. Henshaw v. Foster, 213. Hindman’s Appeal, 94. Holdman v. Eckford, 77. Holmes v. Greene, 87. Holland v. Osgood, 131. Homer v. Fish, 204. Horton v. Homer, 31. Howard v. Cooper, 135. ' Shields, 237, Huber v. Reily, 8. Humphrey v: Kingman, 16, 191. Hunter v. Chandler, 235. Hunt v. Rabner, 386, Inglis v. Trustees, etc., 194. In re Corliss, 251. Wehlitz, 1. Jackson v. Wayne, 135. Walker, 222. Jefferson v. Washington, 86. Jeffries v. Anthony, 213. Jenkins v. Waldron, 209. John Bailey, (case of,) 61. Juker v. Commonwealth, 124. Keller v. Chapman, 127, 128, 132. Kennard v. Louisiana, 250. Kerr v. Rhoades, 146. Trego, 229, 231, 224, Killiam v. Ward, 213. Killmer v. Bennett, 84. Kincaid v. Howe, 140. King v. Foxwell, 75, 77, 78. Mayor of Colchester, 241. Plympton, 224, Knowles v. Yates, 124. TABLE OF CASES. xi Kountz v. Koffroth, 234. Law v. Law, 224. Leach v. Pillsbury, 79. Leitensdorfer et al. v. Webb, 250. Leprot v. Brown, 140. Lewis v. Botkin, 92. Knox, 225. Rogers, 204. Lincoln v. Hapgood, 16, 85, 88, 212, 213.|Penman v. Wayne, 88. Littlefield v. Green, 135. Laphouse v. Wharton, 226. Ludjam vy. Ludlam, 108, 194, Macham v. Dow, 223. Mann v. Cassady, 135. Marbury v. Madeon, 244, 247. Marshall v. Kerns, 158. Mason v. Messenger, 204. Matter of Election, 130. Hawley, 196. - Thomas Bye, 200. Wrigley, 76. Mayo v. Freeland, 158. Me! arthy v. Marsh, 204, 205. McDaniels’ Case, 238, McFarland v. Culpepper, 135. McIntyre, &c., 79. McKay v. Campbell, 6, 194, 195, 271. McKenzie v. Braxton, 137, 239. McKune vy. Weller, 153. Mears v. Sinclair, 121. Michigan People v. Van Cleve, 157. Milk v. Christie and Todd, 141. Miller v. Exglish, 125. Rucker, 210. Minor v. Happersett, 5, 6, 250. Mohawk v. Hudson R, R. Co., 131. Monroe v. Collins, 176. Moore v. Danas, 80. Moran v. Bennard, 210. Morgan v. Bartlett, 135. Dudley, 52, 207, 211. Morrison v. Springer, 26. Morton v. Daly, 232. Munro v. Merchant, 195. Munn y. Illinois, 250. Napier v. Mayhew, 145. Nicholls v. Nudgett, 220. North Yarmouth v. West Gardner, 85. Oakes y. Hill, 16. O'Farrell v. Colby, 158. Oldtown v. Bangor, 194, Overton v. Rhodes, 225. Padgett v. Lawrence, 140. Page v. Allen, 181. Parkhurst v. Sumner, 204. Patterson v. Barlow, 183, 184. Paul v. Virginia, 250. Pearce v. The State, 93. Peavey v. Robbins, 210. Peck v. Woodbridge, 204. Young, 194. People v. Allen, 131. Bates, 137. Canaly, 177. Cicotte, 138, 238. Clute, 168. Council of Detroit, 241. Cook, 127, 129, 130, 132, 140, 158. Covert, 130. Cowles, 152, 153. Ferguson, 139. Garner, 148. Halley, 131. Hartwell, 154. Higgins, 138. Hilliard, 157. Holden, 73, 240. Halley, 95, 131. Hapson, 130, Kilduff, 157. Martin, 158. Matterson, 141, 142. McGowan, 202. McManus, 127. McKune, 153. Magworm, 138. Miller, 234. Murry, 124. New York, 241. Pease, 132, 205, 237, Roseborough, 153. Saxton, 139. Schermerhorn, 136. Seaman, 139. Sup. of Green, 241. Thatcher, 133. Vail, 236, 237. Van Borkkeless, 45. Van Slyck, 156. Warfield, 148. White, 130. Wiant, 148. Pfoutz v. Comford, 102. xil TABLE OF CaSEs. Piatt v. People, 127, 146. Pike v. Magoun, 213. Platt v. People, 128, 135. | Plummer v. Brandon, 90, 93. Brisco, 130. Pond v. Negus, 131. Price v. Baker, 164, 166. Putnam y. Johnson, 16, 85, 88, 101. ‘Queen v. Derby, 241. Quinby v. Duncan, 38, 106. Rail v. Potts, 210, 211. Rebbans v. Crickett, 225. Regina v. Guardian’s of St. Rees 151. Renner v. Bennet, 31, 98. Rex v. Bridge, 169. Foxcroft, 150. Hawkins, 169. Parry, 169. Vaugham, 224. Riswick v. Davis, 79. Ritchie v. Putnam, 203, 204. Richardson v. Webster, 226. Roberts v. Walker, 121. Robust v. Cannon, 45. Richard’s case, 231. Rossevelt v. Gardinier, 141 Salem v. Lyme, 89. Saunders y. Hayner, 169. Haynes, 172. Schrimpf v. Stettegart, 195. Sears v. Boston, 86. Seely v. Knox, 291. | Shanks v. Dupont, 208. Shattuck v. Maynard, 87. Shepherd v. Gibbons, 238. Sidensparker v. Sidensparker, 204. Sink v. Reese, 31, 97. Smith v. Lewis, 204, _ Lowry, 204. Somerville v. Somerville, 77, 103. Sprague v. Houghton, 24, 193, 206. Norway, 127. Stackpole v. Earl, 224. Stark v. Chesapeake Ins. Co., 203. State v. Adams, 194, Baker, 125. Board of Freeholders, 125. Cavers, 157. Churchill, 234. Collins, 220, County Court of Howard, 245 Daniels, 210. State v. Fitzpatrick, 21. Frost, 38, 77. Garland, 169. Giles, 163, 169. Griffey, 143. Groome, 26, 90. Hallett, 79, 95. Harrison, 158. Hilmantel, 238. Johnson, 245. Jones, 157. Lancaster county, 147. -McDowald, 206, 210. Minnick, 26, 90. Murray, 94, 173, 207. Porter, 210. Purdy, 217. Rabb, 210. Rodman, 158, 233, 241, Sherwood, 234. Smith, 163, 164, 169, 210, Steers, 155, 233. Symonds, 8. The Governor, 157, 234. The Judge, 77, 141. The Mayor, 148. Townsley, 237. Wallem, 124. Williams, 33, 178. Woodruff, 25. Stewart v. Foster, 42, 206. Still v. Corporation of Woodville, 121. Strasburger v. Burk, 220. Stratton v. Bingham, 78. St. Joseph Twp. v. Rogers, 148. St. Louis Co. Ct. v. Sparks, 241. Sturgeon v. Korte, 110, 112. Sudbury v. Stearns, 127. Switzler v. Anderson, 231. Ta!bot v. Dent, 148. Taylor v, Jetter, 121. Taylor, 127, 129, 132, 148, 158. Temple v. Maud, 15. The Harmony, 80. Slaughter House cases, 1. Ship Ann Greene, 80. Third School District v. Gibbs, 127. Thomson y. Circuit Judge of Mobile, 157 Thorndike v. Boston, 76, 82, 84. Udny v. Udny, 77, 78. Underwood vy. White, 241. TABLE oF CASES. xili United States v. Barnabo, 292. Canter, 291. Clayton, 286. Crosby, 291. Cruikshank, 1, 3, 5, 250, 271, 292. Gillis, 210, 212. Gitma, 291. Hendric, 284. Aiirsh field, 285. Johnson, 284, 292. O’Niel, 284. Quinn, 285, 292. Reese, 2, 5, 6, 250, 271, 291. Sounders, 284, 292. Susan B. Anthony,7. Van Valkenburg v. Brown, 6. Vaux v. Nesbit, 205. Venable v. Paulding, 77. Walker v. Sauvinet, 250. Wallace v. Simpson, 233. Wanmack v. Halloway, 246. Ward vy. Maryland, 250. Nanny, 226. Warburton v. Aken, 204. Watson v. Cobb, 36. Weaver v. Green, 138. Weeks v. Ellis, 130. Whipley v. McKune, 1238, 126. White v. Brown, 103. Whitney v. Ashland, 87. Whilbraham v. Ludlow, 87. Wickerly v. Geyer, 209. Wilcox v. Smith, 130. Williams v. Whiting, 16, 88. Wilton v. Falworth, 86. Windham v. Portland, 16. Wood vy. Fitzgerald, 96, 124, 207. Wynn v. Morris, 208. Zeiler v, Chapman, 213. Cuapter I. CITIZENSHIP AND SUFFRAGE. There are two kinds of citizenship under our political system of government, federal and state,! and suffrage is an attribute of the latter, exercisable in each state under the conditions and qualifications imposed by its consti- tution. The only restriction on the power of the state to prescribe these conditions is that imposed by the fif- teenth amendment to the constitution of the United 1. United States v. Cruikshank, 2 Otto Sup. Ct. Rp. 542. The Slaughter House Cases, 16 Wall. U.S. By Miller, J., “It is quite clear that there is a citizenship of the United States and a citizenship of the State.” In re Wehlitz, 16 Wisconsin, 463. In this case it was held that, under our system of government, there may be a citizen of a state who is not a citizen of the United States in the full sense of the term; that each state being sovereign, except as to matters referred to-the general government, may, as the result of that sovereignty, confer the rights of citizenship upon whom- soever it pleases, so far as to make him a citizen of that state, though he will not thereby become a citizen of the United States. This kind of citizenship is confined to the boundaries of the state, and gives no rights or privileges in other states beyond those seeured by the laws of nations and the comity of states. It is proper to add that, since the adoption of the fitteenth amendment, this kind of citizenship can only exist in the case of unnaturalized aliens, as the amendment makes all persons born in the United States, and all naturalized persons, citizens of the United States and of the state in which they reside. Dred Scott, Ete, 19 Howard U. S. Rep., 405. Held, that the several states have not, by adopting the constitution, surrendered the power of conferring the privileges of their own citizenship upon an alien or any one they think proper. 1 2... CITIZENSHIP AND SUFFRAGE. States, which provides that the conditions shall not be based on considerations of race, color, or previous ser- vitude. The state remains free tu prescribe such qualifi- cations for suffrage as it may please, provided they apply equally to persons of all races and colors.1 Everyone born within the United States or natural- ized is a citizen of the United States and of the state in which he resides,? but he cannot vote until he has ac- quired the qualifications prescribed by the constitution of the state in which he is at the time of an election, and there are still rights pertaining to state citizenship distinct from those within the meaning of the fifteenth amendment to the United States constitution.2 While every native born citizen of a state is a citizen of the 1, United States v. Reese et al., 2 Otto U. 8S. Sup. Ct. Reps.; Anderson v. Baker et al., 23 Maryland, 531; Sprague v. Houghton, 8 IIL, 377 2. Fourteenth amendment to United States Constitution. 3. Cully v. Balt. & O. R. R., 1 Hughes U.S. C. C. Reps., 586. Speak- ing of the fifteenth amendment to the United States constitution, the court says: “ Now what does it say? ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside’ That makes them citi- zens. ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” Now the Su- preme Court has held—and these decisions have all been since I decided the case to which I have referred—in the case of the United States v. Reese et al., and The Slaugthter House Cases (16 Wallace U.S. 8. C., 36,) that this article of the constitution only protected such rights as belonged to a citizen of the United States. * * * The Supreme Court (and that was a case that came up under this very section) held then, that the first clause of the fourteenth article was primarily intended to confer citizen- ship on all persons born or naturalised in the United States, and to de- clare them citizens of the United States, and it recognized the distinction between citizens of a state and citizens of the United States.” SUFFRAGE AND “ELECTIONS. 3 United States for the purpose of suing and being sued in the federal courts, and while it has been held? that a citizen of the United States is a citizen of the state in which he has his domicil, for the same purpose, it is not true that he is, because of his United States citizenship, a citizen of the state for the purpose of voting. Each government—federal and state—is distinct from the other, and has citizens of its own, who owe it allegi- ance, and whose rights, within its jurisdiction, it must respect. Though the citizen of the United States is a citizen of the state, his rights under each are different: the United States can only grant or secure those within its jurisdiction; all others are left to the protection of the states. Nor does naturalization confer, of itself, the right to vote. A naturalized citizen of the United States is, as we have seen, made a citizen of the state in which he resides, by the fourteenth amendment to the federal constitution, but he is not entitled to suffrage until he has acquired a voting residence and the other qualifi- cations prescribed in the particular state. On the other hand, naturalization is not essential to the right of suf- frage, unless the constitution of the state makes it so.4 1, Story on the Constitution, 3 1687. 2. 6 Peters U.S. Sup. Ct. Rep., 761. 3. U.S. v. Cruikshank, 2 Otto Sup. Ct. Rep., 542. 4, Spragin v. Houghton, 3 Scam. (Ill.) Rep., 377. The Court says: “The first paragraph of the second article of the constitution of the United States declares that the electors in each state shall have the qualifications requisite for electors of the numerous branch of the state legislature. This is alone applicable to the choice of members of the house of representatives of the United States, and is regulated, of course, by the qualifications pre- 4 CITIZENSHIP AND SUFFRAGE, In some of the states the right to vote is by description given to citizens of the United States, who have acquired the requisite legal residence in the state, but in others mere inhabitancy for a specified time is sufficient to confer the right of suffrage. From this power of the states to make all persons within their limits voters, with- out regard to whether they are aliens or not, important consequences flow. The state may confer the right to vote without necessarily making those upon whom it is conferred citizens of the state even,! and yet, such voter can participate in all the elections, of federal as well as state officers.? scribed by the state laws for the qualifications of its voters in the choice of its representatives in its own legislature. The qualification which the voter is required to possess in a congressional election depends entirely on the laws of the state in which the elective franchise is exercised, and is purely dependent on the municipal regulations of the state. The consti- tution of the United States in this particular is wholly subordinate to the legislative will of the state; whatever it prescribes is adopted as the quali- fication for the voter for member of congress. In speaking of this pro- vision of the constitution of the United States, the fifty-second number of The Federalist, written by Mr. Madison, contains the following just com- ments: ‘To have reduced the different qualifications in the different states to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option.’” Since this decision was rendered the Illinois constitution has been changed. | 19 Howard U. S. Reps., 402. 1. 19 Howards U. S. Reps., 422. : 2. In re Webhlitz, 16 Wis., 575. “It is also worthy of remark that, although the state cannot make such persons (aliens) full citizens of the United States, yet by making them electors of the state, it gives them an equal voice with any other citizen in choosing senators and representatives in congress, and also in choosing the president and vice president of the SUFFRAGE AND ELEcTIONS., 5 The doctrine that the late amendments to the federal constitution do not confer the right of suffrage upon anyone, and that the right to vote in the states comes from the state, was distinctly affirmed and reaffirmed by the Supreme Court of the United States in the cases of Minor v. Happerset, 21 Wallace, 178; The United States v. Reese et al.,2 Otto, 214, and The United States v. Cruik- shank et al., 2 Otto, 542. In the first named case, Chief Justice Waite, delivering the opinion of the court, said: “The fifteenth amendment does not confer the right of suffrage upon any one. It prevents the states, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color or previous condition of servitude. Before its adoption this could be done. It was as much within the power of a state to exclude citizens of the’ United States from voting on account of race, &c., as it was on account of age, property or edu- cation. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those United States. For by the constitution of the United States, representatives are chosen by the ‘qualified electors of the most numerous branch of the state legislature.”’ Senators are chosen by the legislature, and electors in such manner as the state legislature may direct. Notwithstanding, therefore, the constitution conferred upon congress the power of providing uniform naturalization laws, and notwithstanding, it must be admitted that an alien cannot become a full citizen of the United States, except by complying with these laws, it must also be admitted that the state may, by con- ferring upon them ‘the right of suffrage, enable them to have an equal. voice with any other citizen in the United States itself; and although, they may not be full citizens, they may well be said, in a general sense, to be citizens even of the United States. 6 CITIZENSHIP AND SUFFRAGE. of another, having the same qualifications, must be.” And in the Cruikshank case the Supreme Court said: “In Minor v. Happersett, 21 Wall, 178, we decided that the United States have no voters of their own crea- tion in the States. In United States v. Reese et al., supra., 214, we held that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from dis- crimination in the exercise of the elective franchise on account of race, color, or previous condition of servi- tude. From this it appears that the right of suffrage is not an attribute of national citizenship, but that exemp- tion from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States.”1 But the states still retain the power of discriminat- ing in the right to vote on account of any cause other than those specified in the constitutional amend- ments.?_ This power is exercised in Rhode Island where 1.'McKay v. Campbell, 2 Sawyer (Nevada) Rep., 118. 2. Ibid; Van Valkenbrug v. Brown, 43 Cal., 43; Anthony v. Halder- man, 7 Kansas, 50; 2 Abbot U.S., 120. “Under the fifteenth amendment to the constitution, and the act of May 31, 1870, to enforce it, all persons declared citizens of the United States by the fourteenth amendment, are entitled to vote in the state where they reside at all elections by the people, without distinction of race, color, or previous condition of servitude; but the several states, notwithstanding the amendments, have the power to deny the right of suffrage to any citizens of the United States, on account of age, sex, place of birth, vocation, want of property or intelligence, neglect of civic duties, crime, or other cause not specified in the amendment.” SUFFRAGE AND ELECTIONS. 7. discrimination is made on account of. nativity, the constitution prescribing. in its suffrage article, qual- ifications for foreign born residents different from those prescribed for natives.! Whether the provisions of the fourteenth amendment to the federal constitution, that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” forbid the denial of suffrage to females, was directly decided ina case in New York, where a, female, having claimed the elective franchise and voted, was indicted for voting illegally. The indictment was sustained.? See also 16 Albany Law Journal, 272-7, in which a writer on the elective franchise, concludes: ‘That, with the exception of the District of Colum-, bia and the territories of the United States, in both of which Congress has exclusive jurisdiction, the question, who are voters in this country, and who are not, is wholly a matter of state authority and state discretion, subject to the following limitations: 1. That those who in each state are voters fot members of the most numerous branch of its legislature are by the con- stitution entitled to be voters for representatives in congress. 2. That citizens of the United States shall not by any state be excluded from voting on account of race, color or previous condition of servitude. 3. That no state shall adopt any constitution or exercise any power that is destructive of a republican form of government. Outside of these limitations, the whole power of determining who shall exercise the elective franchise in the states, whether in respect to state or national officers, is with the states themselves, and with each state with reference to its own citizens.” 1. See Suffrage Clause of Rhode Island Constitution, post. 2. U.S. v. Susan B. Anthony, 11 Blatch., 200. The defendant possessed all the qualifications prescribed by the state constitution fgr voters except that she was a female. The constitution of the state, and the act under it, provides that none but males shall vote. She was indicted for voting without lawful right. It was contended on the trial that the provision of the state constitution confining the elective franchise to males was void, as a violation of the fourteenth amendment of the constitution of the United 8 CITIZENSHIP AND SUFFRAGE. Indirectly congress may work a forfeiture of suffrage in those states which make United States citizenship a qualification, by. enacting laws providing for the for- feiture of citizenship for certain offences. In such case the act operates through the state constitution in work- ing disfranchisement.1 The suffrage is lost because States, which provides, that “no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” Held, that such restriction was not void. The fourteenth amendment defines and declares who shall be citizens of the United States, and protects only such rights as are rights belorging to persons as citizens of the United States, and not rights belonging to persons as citizens of a state. The right or privilege of voting is one arising under the constitution of the state, and not under the constitution of the United States. The defence, therefore, held not good. 1. Huber v. Reily, 53 Pennsylvania State Rep., 112. By the court: “In the exercise of its admitted powers, congress may undoubtedly deprive the individual of the right to enjoy a right that belongs to him as a citizen of a state, even the right of suffrage; but this is a different thing from taking away or impairing the right itself. Under the laws of the federal government a voter may be sent abroad in the military service of the country, and thus deprived of the privilege of exercising his right; or a voter may be imprisoned for crime against the United States; but it isa perversion of language to call this impairing his right of suffrage. Con- gress may provide laws f.r the naturalization of aliens, or it may refuse to provide such laws; its action or non-action may thus determine whether individuals shall or shall not become citizens of the United States. And I cannot doubt that, as a penalty for crime against the United States, congress may impose upon the criminal, forfeiture of his citizenship of the United States; disfranchisement of a citizen, as a punishment for crime, is no unusual punishment. Barker v. People, 20 Johnson, 457. If by the organic law of a state, citizens of the United States only are allowed to vote, the action or non-action of congress may thus, indirectly, affect the number of those entitled to the right of suffrage ; yet, after all, the right is one which the possessor holds as a citizen of a state, secured to him by the state constitution, and to be held on the terms prescribed by that constitution alone. State vy. Symonds, 57 Maine, 148. SUFFRAGE AND ELECTIONS. 9 United States citizenship is a qualification, made so by the state constitution. The people of any state have it in their power to amend their constitution in this respect, and thus prevent forfeiture of United States citizenship carrying with it the consequence of a loss of suffrage. Cuapter II. THE STATE CONSTITUTIONS. Provisions Regulating Suffrage. It will have been observed that the court, in the de- cision first quoted, speaks of voters as persons having certain qualifications. These qualifications are pre- scribed by the constitutions of the several states, and it becomes necessary to ascertain what they are.! 1, “Every constitution of government in these United States has as- sumed, as a fundamental principle, the right of the people of the state to alter, abolish and modify the form of its own government, according to the sovereign pleasure of its people; in fact, the people of each state have gone much further, and settled a far more critical question, by deciding who shall be voters entitled to approve and reject the constitution framed by a delegated body under their direction.” 1 Story on the Con- stitution, Ch. 9, 2 581. “In no two of these state constitutions will it be found that the qualifications of the voters are settled upon the same uniform basis, so that we have the most abundant proofs, that among a free and enlightened people, convened for the purpose of establishing their own form of government, and the rights of their own voters, the question as to the due regulations of the qualifications has been deemed a matter of mere state policy, and varied to meet the wants, to suit the pre- judices and to foster the interests of the majority.” Ibid, 3 582. “ Among the absolute, unqualified rights of the states is that of regulating the elective franchise.” Anderson y. Baker, Maryland Court of Appeals, 23 Maryland Law Reports, 531. 12 Tue Strate ConstTiTurions. MAINE, The constitution of Maine provides that every male citizen of the United States, of the age of twenty-one years and upwards, excepting paupers, persons under guardianship, and Indians not taxed, having his resi- dence established in this state for the term of three months next preceding any election, shall be an elector for governor, senators and representatives, in the town or plantation where his residence is so established. But per- sons in the military, naval or marine service of the United States, or this state, shall not be considered as having obtained such established residence by being stationed in any garrison, barrack or military place, in any town or plantation; nor shall the residence of a stu- dent atany seminary of learning entitle him to the right of suffrage in the town or plantation where such semi- nary is established. By amendment ratified in 1865, it is provided that no person shall be deemed to have lost his residence by reason of his absence from the state in the military ser-. vice of the United States, or of this state, and citizens out of this state in the military service of the United States, or of this state, and not in the regular army of the’ United States, being otherwise qualified electors, are allowed to vote for governor, senators and representa- tives, at the place where they may be stationed without the state, to a number not less than twenty; and they shall be considered as voting in the city, town, planta- SUFFRAGE AND ELECTIONS. 138 tion or county where they resided when they entered the service. See 7 Maine Reports, 492, where it is held that in order to-be entitled to vote in Maine a person must bea citizen of the United States, and he must have had his residence established three months in the state, and in the town or plantation also three months preceding the election. NEW HAMPSHIRE. The New Hampshire constitution provides that every male inhabitant of each tewn and parish with town privileges, and places unincorporated, in this state, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes, at their own re- quest, shall have a right, at the annual or other meeting of the inhabitants of such towns or parishes * * * to vote in the town or parish wherein he dwells, for the senator in the district whereof he isa member. [Persons qualified to vote for senators dre qualified also to vote for other officers. ] And every person qualified as the constitution pro- vides, shall be considered an inhabitant for the purpose of electing and being elected into. any office or place within this state, in the town, parish or plantation where he dwelleth and hath his home. And the inhabitants of plantations and placés unincor- porated, qualified as the constitution provides, who are or shall be required to assess taxes upon themselves to- 14 Tue State ConstTITUTIONS. ward the support of government, or shall be taxed there- for, shall have the same privilege of voting for sena- tors in the plantations and places wherein they reside, as the inhabitants of the respective towns and parishes aforesaid have. VERMONT. The Vermont constitution provides that all freemen, having a sufficient evidence, common interest with, and attachment to the community, have a right to elect offi- cers and be elected into office, agreeable to the regula- tions made in this constitution. Every man of the full age of twenty-one years, having resided in this state for the space of one whole year, next before the election of representatives, and is of a quiet and peaceable behavior, and will take the follow- ing oath or affirmation, shall be entitled to all the privi- ‘leges of a freeman of this state: “You solemnly swear [or affirm] that whenever you give your vote or suffrage touching any matter that con- cerns the state of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the constitution, with- out fear or favor of any man.” No person, who is not already [1828] a freeman of this state, shall be entitled to exercise the privilege of a free- man, unless he be a natural born citizen of this or some SUFFRAGE AND ELEcTIONS. 15 one of the United States, or until he shall have been naturalized agreeably to the acts of congress. See Temple v. Maud, 4 Vermont Reports, 536. MASSACHUSETTS, The Massachusetts constitution provides that every male citizen of twenty-one years of age and upwards (ex- cept paupers and persons under guardianship), who shall have resided within the commonwealth one year, and within the town or district in which he may claim a right to vote six calendar months, next preced- ing any election of governor, lieutenant-governor, sena- tors or representatives,and who shall have paid by him- self or his parent, master or guardian, any state or county - tax which shall, within two years next preceding such election, have been assessed upon him in any town or district of this commonwealth, and also every citizen who shall be by law exempted from taxation, and who’ shall be in all other respects qualified as above men- tioned, shall have a right to vote in such election for governor, lieutenant-governor, senators and representa- tives, and no other person shall be entitled to vote in such elections: The secretary, treasurer and receiver-general, auditor and attorney-general shall be chosen annually on the day in November prescribed for the choice of governor. * * * * The qualification of the voters * * * * shall be such as are required in the election of governor. 16 Tue State Constitutions. [Amendment 1857.]—No person shall have the right to vote or be eligible to office under the constitution of this commonwealth, who shall not be able to read the con- stitution in the English language and write his name; provided, however, that the provisions of this amendment shall not apply to any person prevented by a physical disability from complying with its requisitions, nor to any person who now has the right to vote, nor to any persons who shall be sixty years of age or upwards at the time this amendment shall take effect. ‘See opinion of Supreme Court to Governor, 3 Mass., 568 ; Windham v. Portland, 4 Mass., 384; Commonwealth v. Clory, 8 Mass.,72; Bridge v. Lincoln, 14 Mass., 367; Lincoln v. Hapgood, 11 Mass., 350; Williams v. Whiting, 11 Id., 423; Putnam v. Johnson, 10 Id., 488; Oakes v. Hill, 10 Id., 338 ; opinion of Judges, 11 Pickering, 588; 18 Pick., 575; 1 Met- calf, 580; 5 Metcalf, 691; Humphrey v. Kingman, 5 Met- calf, 162; Harris v. Whitcomb, 4 Gray, 438. RHODE ISLAND. The suffrage clauses of the Rhode Island constitution are as follows: 7 Every male citizen of the United States, of the age of twenty-one years, who has had his residence and home in this state for one year, and in the town or city in which he may claim a right to vote six months, next preceding the time of voting, and who is really and truly possessed in his own right of real estate in such town or city of SUFFRAGE AND ELECTIONS. 17 the value of one hundred and thirty-four dollars, over and above all encumbrances, or which shall rent for seven dollars per annum, over and above any rent re- served, or the interest of any incumbrance thereon, being an estate in fee-simple, fee tail, for the life of any person, or an estate in reversion or remainder, which qualifies no other person to vote, the conveyance of which estate, if by deed, shall have been recorded at least ninety days, shall hereafter have a right to vote at the election of all civil officers, and on all questions, in all legal town or ward meetings, so long as he continues so qualified. And if any person hereinbefore described shall own any such estate, within this state, out of the town or city in which he resides, he shall have a right to vote in the election of all general officers and members of the general assembly, in the town or city in which he shall have had his residence and home for the term of six months next preceding the election, upon producing a certificate from the clerk of the town or city in which his estate lies, bearing date within ten days of the time of his voting, setting forth that such person has a sufficient estate therein to qualify him as a voter, and that the deed, if any, has been recorded ninety days. Every male native citizen of the United States, of the age of twenty-one years, who has had his residence and home in this state two years, and in the town or city in which he may offer to vote six months, next preceding the time of voting, whose name is registered pursuant to the act calling the convention to frame this constitution, 2 18 Tue STATE CONSTITUTIONS. or shall be registered in the office of the clerk of such town or city, at least seven days before the time he shall offer to vote, and before the last day of December in the present year, and who has paid or shall pay a tax or taxes,. assessed upon his estate within this state, and within a year of the time of voting, to the amount of one dollar, or who shall voluntarily pay, at least seven days before the time he shall offer to vote, and before the said last day of December, to the clerk or treasurer of the town or city where he resides, the sum of one dollar, or such sums as with his other taxes shall amount to one dollar, for the support of public schools therein, and shall make proof of the same by the certificate of the clerk, treasurer or collector of any town or city where such payment is made; or who, being so registered, has been enrolled in any military company in this state, and done military service or duty therein, within the present year, pursuant to law, and shall (until other proof is required by law) prove by the certificate of the officer legally commanding the regiment, or chartered, or legally authorized volunteer company, in which he may have served or done duty, that he has been equipped ahd done duty according to law, or by the certificate of the commissioners upon military claims that he has per- formed military service, shall have a right to vote in the election of all civil officers, and on all questions in all legally organized town or ward meetings, until the end of the first year after the adoption of the constitu- SUFFRAGE AND ELECTIONS. 19 tion, or until the end of the year eighteen hundred and forty-three. From and after that time, every such citizen, who has the residence herein required, and whose name shall be registered in the town where he resides, on or before the last day of December in the year next preceding the time of his voting, and who shall show by legal proof that he has for and within the year next preceding the time he shall offer to vote, paid a tax or taxes assessed against him, in any town or city in this state to the amount of one dollar, or that he has been enrolled in a military company in this state, been equipped and done duty therein, according to law, and at least for one day during each year, shall have a right to vote in the elec- tion of all civil officers and on all questions in all legally organized town or ward meetings; provided, that no per- son shall at any time be allowed. to vote in the election of the city council of the city of Providence, or upon any proposition to impose a tax, or for the expenditure of money in any town or city, unless he shall within the year next preceding have paid a tax assessed upon his property therein valued at least at one hundred and thirty-four dollars. , The assessor of each town or city shall annually assess upon every person whose name shall be registered a tax of one dollar, which registry tax shall be paid into the treasury of such town or city, and be applied to the sup- port of public schools therein. But no compulsory pro- cess shall issue for the collection of any registry tax; 20 Tue State Constitutions. provided, that the registry tax of every person who has performed military duty, according to the provisions of the preceding section, shall be remitted for the year he shall perform such duty; and the registry tax assessed upon any mariner for any year whilé he is at sea shall, upon his application, be remitted, and no person shall be allowed to vote whose registry tax for either of the two years next preceding the time of voting is not paid or remitted, as herein provided. No person in the military, naval, marine or other ser- vice of the United States, shall be considered as having the required residence by reason of being employed in any garrison, barrack, or military or naval station in this state, and no pauper, lunatic, person non compos mentis, person under guardianship, or member of the Narragansett tribe of Indians, shall be permitted to be registered or to vote. Nor shall any person convicted of bribery, or of any crime deemed infamous at common law, be permitted to exercise that privilege until he be expressly restored thereto by act of the general assembly. Persons residing on lands ceded by this state to the United States, shall not be entitled to exercise the privil- ege of electors. The general assembly shall have full power to provide for a registry of voters, to prescribe the manner of con- ducting the elections, the form of certificates, the nature of the evidence to be required in case of a dispute as to the right of any person to vote, and generally to enact SUFFRAGE AND ELECTIONS. 21 all laws necessary to carry this article into effect, and to prevent abuse, corruption and fraud in voting. [Electors who, in time of war, are absent from the state in the actual military service of the United States, being otherwise qualified, have the right to vote, under such regulations as the legislature prescribes. Amend- ment of 1864.] See State v. Fitzpatrick, 4 R. I, 269; Appeal of Peace, 6 R. 1, 589. INDIANA. The Indiana constitution provides that— In all elections not otherwise provided for by this con- stitution, every [white] male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months imme- diately preceding such election, and every [white] male of foreign birth, of the age of twenty-one years and up- wards, who shall have resided in the United States one year, and shall have resided. in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote in the township or precinct where he may reside. No soldier, seaman or marine in the army or navy of the United States, or of their allies, shall be deemed to have acquired a residence in the state, in consequence of 22 Tue Srate CoNsTITUTIONS. having been stationed within the same; nor shall any such soldier, searnan or marine, have the right to vote. No person shall be deemed to have lost his residence in the state by reason of his absence, either on business of the state or of the United States. [No negro or mulatto shall have the right of suffrage. ] The general assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime. 2 (The words and section in brackets have been abrogated by the amendments to the federal constitution.) MICHIGAN. The suffrage provisions of the Michigan constitution are as follows: In all elections, every male citizen, every male in- habitant, residing in the state on the twenty-fourth day of June, one thousand eight hundred and thirty-five, every male inhabitant residing in the state on the first day of January, one thousand eight hundred and fifty, who has declared his intention to become a citizen of the United States, pursuant to the laws thereof, six months preceding an election, or who has resided in this state two years and six months, and declared his inten- tion as aforesaid, and every civilized male inhabitant of Indian descent, a native of the United States, and not a member of any tribe, shall be an elector and entitled to vote; but no citizen or inhabitant shall be an elector, or 3 $ 4 SUFFRAGE AND ELECTIONS. 23 entitled to vote at any election, unless he shall be above the age of twenty-one years, and has resided in this state three months, and in the township or ward in which he offers to vote ten days next preceding such election; provided, that in time of war, insurrection or rebellion, no qualified elector in the actual military service of the United States or of this state, in the army or navy thereof, shall be deprived of his vote by reason of his absence from the township, ward or state in which he resides; and the legislature shall have the power and shall pro- vide the manner in which, and the time and place at which such absent electors may vote, and for the canvass and return of their votes to the township or ward elec- tion district in which they respectively reside, or other- wise. z No elector shall be deemed to have gained or lost a residence by reason of his being employed in the ser- vice of the United States or of this state; 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; nowwhile kept at any alms house, or other asylum at public expense; nor while confined in any public prison. Laws may be passed to preserve the purity of elec- tions and guard against abuses of the elective franchise. No soldier, seaman nor marine, in the army or navy of the United States, shall be deemed a resident of this state, in consequence of being stationed in any naval or military place within the same. 24 Tue State ConstitTuriIons. Any inhabitant who may hereafter be engaged in a duel, either as principal or accessory before the fact, shall be disqualified from holding any office under the constitution and laws of this state, and shall not be per- mitted to vote at any election. ILLINOIS. In Illinois it is provided that— Every person having resided in this state one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this state, on the lst day of April, in the year of our Lord 1848, or obtained a certificate of natural- ization, before any court of récord in this state, prior to the 1st day of January, in the year of our Lord 1870, or who shall bea male citizen of the United States above the age of twenty-one years, shall be entitled to vote at such election. ; . No elector shall be deemed to have lost his residence in this state bw reason of his absence on the business of the United States, or of this state, or in the military or naval service of the United States. No. soldier, seaman or marine in the army or navy of the United States shall be deemed a resident of this state in consequence of being stationed therein. The general assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes. See Sprague v, Houghton, 3 Ill. (2 Scam.) 877. SUFFRAGE AND ELECTIONS. 25 CONNECTICUT. The suffrage articles are— Every [white] male citizen of the United States who shall have attained the age of twenty-one years, who shall have resided in this state for a term of one year next preceding, and in the town in which he may offer himself to be admitted to the privileges of an elector at least six months next preceding the time he may so offer himself, and shall sustain a good moral character, shall, on his taking such oath as may be prescribed by law,! be an elector. Every person shall be able to read any article of the constitution, or any section of the statutes of this state, before being admitted as an elector. The privileges of an elector shall be forfeited by a con- viction of bribery, forgery, perjury, fraudulent bank- ruptcy, theft, or other offence, for which an infamous punishment is inflicted. The general assembly shall have power, by a vote of two-thircs of the members of both branches, to restore the privileges of an elector to those who may have forfeited the same by a conviction of crime. (The word in brackets, abrogated by the amendments to the United States constitution.) 1. See Statutes of Connecticut, compilation of 1854, page 444. See also, State v. Woodruff, 2 Day, 504. 26 THe State Constiturions. IOWA. The Iowa constitution says: Every male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state six months next preceding the election, and the county in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law. No person in the military, naval or marine service of the United States shall be considered a resident of this state by being stationed in any garrison, barrack or military or naval place or station within this state. No idiot, or insane person, or person convicted of any infamous crime, shall be entitled to the privilege of an elector. See State v, Minnick, 15 Iowa, 122 ; Morrison v. Springer, 15 Iowa, 304. On the question of residence it was held, in The State v. Groome, 10 Iowa, 309, that a person ceases to be a resident when he removes to another state, in which he fixes his domicil with the intention of remaining for an indefinite time. Held, in State v. Minnick, 15 Iowa, £23, that to gain a residence within a township, the elector must have the intention bona fide of making it his home. Remaining within the township with the purpose of leaving as soon as some temporary object is accomplished does not establish a residence. SUFFRAGE AND ELECTIONS. 27 NEW YORK. The suffrage clauses of the constitution of New York, as amended in 1874, are as follows: Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in wnich he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people; provided, that in time of war no elec- tor in the actual military service of the state, or of the United States, in the army or navy thereof, shall be de- prived of his vote by reason of his absence from such election district; and the legislature shall have power to provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election districts in which they respectively reside. No person who shall receive, expect, or offer to receive, or pay, offer or promise to pay, contribute, offer or promise to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at an election, or who shall make any promise to influence the giving or with- 28 THe StTaTE CONSTITUTIONS. holding any such vote, or who shall make or become directly or indirectly interested in any bet or wager de- pending upon the result of any election, shall vote at such election; and upon challenge for such cause, the person so challenged, before the officers authorized for that purpose shall receive his vote, shall swear or affirm before such officers that he has not received or offered, does not expect to receive, has not paid, offered or prom- ised to pay, contributed, offered or promised to contrib- ute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at such election, and has not made any promise to influence the giving or with- holding of any such vote, nor made or become directly or indirectly interested in any bet or wager depending upon the result of such election. The legislature, at the session thereof next after the adoption of this section, shall, and from time to time thereafter, may, enact laws excluding from the right of suffrage all persons con- victed of bribery or of any infamous crime. For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his pres- ence 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 learn- ing; nor while kept at any alms house or other asylum, at public expense; nor while confined in any public prison. si SUFFRAGE AND ELECTIONS. 29 Laws shall be made for ascertaining by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established. * NEW JERSEY. The suffrage article is as follows: Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months, next before the election, shall be enti- tled to vote for all officers that now are, or hereafter may be elective by the people; provided, that no person in the military, naval or marine service of the United States shall be considered a resident in this state, by being stationed in any garrison, barrack, or military or naval place or station within this state; and no pauper, idiot, insane person, or person convicted of a crime which now excludes him» from being a witness, unless pardoned or restored by law to the right of suffrage shall enjoy the right of an elector ;! and provided further, that in time of 1. The statute on witnesses in force when this was adopted, provided that no person who shall be convicted of blasphemy, treason, murder, piracy, arson, rape, sodomy or the infamous crime against nature, com- mitted with mankind or with beast, polygamy, robbery, conspiracy, for- gery, or larceny of above the value of six dollars, shall in any case be admitted as a witness, unless pardoned. Persons convicted of perjury were made inadmissible although pardoned. In the revision of 1874 the statute on evidence provides that no conviction for crime shall exclude the person convicted from being a witness, but the statute on crimes spe- cially provides disqualifications as a witness in cases of perjury and subor- nation of perjury. 30 THE State ConstTITUTIONS. war no elector in the actual military service of the state, or of the United States, in the army o1 navy thereof, shall be deprived of his vote by reason of his absence from such election district; and the legislature shall have the power to provide the manner in which, and the time and place at which such absent elector may vote, and for the return and canvass of their votes in the election districts in which they respectively reside. The legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of bribery. See 3 Harrison N. J. Reports, 138, post. OHIO. By the Ohio constitution— Every [white] male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township or ward in which he resides, such time as may be provided by law,1 shall have the quali- 1. Section 2945 of the Revised Statutes of Ohio, vol. I, page 770, pro- vides that a residence of thirty days in the county and twenty days in the township, village or ward, shall be necessary to entitle a person to vote. Heads of families who have resided a year in the state and thirty days in the county, who may remove bona fide from one township or ward to an- other, may vote without the twenty days residence, except in municipal elections held in the city or village, in which the twenty days residence is necessary. The succeeding section defines very fully what the term “ resi- dence” means in Ohio, and is, excepting the provision that the place where the family of a married man resides shall be considered his resi- dence, declaratory of the doctrines stated in the chapter on residence which follows. : flies fie SUFFRAGE AND ELECTIONS. 31 fications of an elector, and be entitled to vote at all elec- tions. The general assembly shall have the power to exclude from the privilege of voting, or of being eligible to office, any person convicted of bribery, perjury or otherwise in- famous crime. No person in the military, naval or marine service of the United States, shall by being stationed in any garrison or military or naval station within the state, be considered a resident of this state. . No idiot or insane person shall be entitled to the privi- leges of an elector.! (The word in brackets abrogated by the amendment to the United States constitution.) See Horton v. Horner, 16 Ohio, 147; Sink v. Reese, 19 Ohio St., 307 ; Renner v. Bennett, 21 Ohio St., 449. WISCONSIN. The suffrage article of the Wisconsin constitution -reads as follows: Every male person of the age of twenty-one years or upward, belonging to either of the following classes, who shall have resided in the state for one year next pre- ceding any election, shall be deemed a qualified elector at such election: 1. Held, in Sink v. Reese, 19 Ohio St., 307, that the vote of a person otherwise qualified, who is not a lunatic or idiot, but whose faculties are greatly enfeebled by age, ought not to be rejected. 32 THE State Constiturions. First. White citizens of the United States. Second. White persons of foreign birth who shall have declared their intention to become citizens conformably - to the laws of the United States on the subject of natur- alization.? Third. Persons of Indian blood, who have once been declared by law of congress to be citizens of the United States, any subsequent law of congress to the contrary notwithstanding. Fourth. Civilized persons of Indian descent, not mem- bers of any tribe; provided, that the legislature may, at any time, extend by law the right of suffrage to persons not herein enumerated ;? but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election, and approved by a majority of all the votes cast at such election. No person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election; nor shall any person convicted of treason or felony be quali- fied to vote at any election unless restored to civil rights, No person shall be deemed to have lost his residence in this state by reason of his absence on business of the United States or of this state. No soldier, seaman or marine in the army or navy 1. By a decision of the supreme court, made during the year 1866, in the case of Gillespie vy. Palmer, the right of suffrage was held to have been extended to colored persons by vote of the people at the general election in November, 1849. 2. The: statute is merely declaratory of the constitution. See Revised Statutes of Wisconsin, page 60. SUFFRAGE AND ELECTIONS. 33 of the United States shall be deemed a resident of this state in consequence of being stationed within the same. Laws may be passed excluding from the right of suff- rage all persons who have or may be convicted of bribery or larceny, or of any infamous crime, and depriving every person who shall make, or become, directly or in- directly, interested in any bet or wager depending upon the result of any election, from the right to vote at such election. See State v. Williams, 5 Wisconsin, 308 ; also, 9 Wiscon- sin, 279 ; 38 Wisconsin, 71. OREGON. The constitution says: In all elections not otherwise provided for by this con- stitution every [white] male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months im- mediately preceding such election, and every [white] male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided in this state during the six months immediately preceding such elec- tion, and shall have declared his intention to become a citizen of the United States one year preceding such elec- tion, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law. 3 34 Tue State Constitutions. No idiot or insane person shall be entitled to the privilege of an elector; and the privilege of an elector shall be forfeited by a conviction of any crime which is punishable by imprisonment in the penitentiary. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his pres- ence or absence while employed in the service of the United States or of this state; nor while engaged in the navigation of the waters of this state or the United States or of the high seas; nor while a student of any seminary of learning; nor while kept at any alms house, or other asylum, at public expense; nor while confined in any public prison. No soldier, seaman or marine, in the army or navy of the United States, or of ‘their allies, shall be deemed to have acquired a residence in the state in consequence of having been stationed within the same; nor shall any such soldier, seaman or marine, have the right to vote. [No negro, Chinaman or mulatto, shall have the right of suffrage. ] All qualified electors shall vote in the election precinct in the county where they may reside for county officers, ° and in any county in the state for state officers, or in any county of a congressional district in which such electors may reside for members of congress. (The words in brackets abrogated by the amendments to the United States constitution.) . SUFFRAGE AND ELECTIONS. 35 KANSAS. The constitution reads: Every [white] male person of twenty-one years and upwards, belonging to either of the following classes, who shall have resided in Kansas six months next pre- ceding any election, and in the township or ward in which he offers to vote at least thirty days next preced- ing such election, shall be deemed a qualified elector: ‘Ist. Citizens of the United States; 2d., persons of foreign birth, who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization. No soldier, seaman or marine in the army or navy of the United States, or of their allies, shall be deemed to have acquired a residence in the state in consequence of being stationed within the same; nor shall any soldier, seaman or marine have the right to vote. The legislature may pass such laws as may be neces- sary for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage hereby estab- lished. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his pres- ence 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 on the high seas, nor while a student in any seminary of learning, nor while kept at any alms house or other 36 THE State ConstTITuTIONS. asylum at public expense, nor while confined in any public prison; and the legislature may make provision for taking the votes of electors who may be absent from their townships or wards in the volunteer military ser- vice of the United States, or the militia service of this state; but nothing herein contained shall be deemed to allow any soldier, seaman or marine in the regular army or navy of the United States the right to vote. No person under guardianship, non compos mentis, or insane; no person convicted of felony, unless restored to civil rights; no person who has been dishonorably dis- charged from the service of the United States, unless reinstated; no person guilty of defrauding the govern- ment of the United States, or any of the states thereof; no person guilty of giving or receiving a bribe, or offer- ing to give or receive a bribe; and no person who has ever voluntarily borne arms against the government of the United States, or in any manner voluntarily aided or abetted in the attempted overthrow of said govern- ment, except all persons who have been honorably dis- charged from the military service of the United States since the first day of April, A. D. 1861, provided that they have served one year or more therein, shall be quali- fied to vote or hold office in this state, until such dis- ability shall be removed by law passed by a vote of two- thirds of all the members of both branches of the legisla- ture. See Anthony v. Halderman, 7 Kansas Rep., £0; Watson v. Cobb, 2 Kansas Rep., 32; Hunt v. Rabner, 4 Kansas Rep., 549, SUFFRAGE AND ELECTIONS. 37 DELAWARE. The Delaware constitution provides: All elections for governor, senators, representatives, sheriffs and coroners, shall be held on the Tuesday next after the first Monday, in the month of November, of the year in which they are to be held and be by ballot; and in such elections every free [white] male citizen of the age of twenty-two years or upwards, having resided in the state one year next before the election, and the last month thereof in the county where he offers to vote, and having within two years next before the election paid a county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector; and every free [white] male citizen of the age of twenty-one years, and under the age of twenty-two years, having resided as aforesaid, shall be entitled to vote without payment of any tax; provided, that no per- son in the military, naval or marine service of the United States shall be considered as acquiring a residence in this state, by being stationed in any garrison, barrack, or military, or naval place, or station, within this state; and no idiot, or insane person, or pauper, or person con- victed of a crime deemed by law felony, shall enjoy the right of an elector; and that the legislature may impose the forfeiture of the right of suffrage as a punishment for crime. (The word in brackets abrogated by the amendments to the United States constitution.) 38 THE State CoNstTITUTIONS. See State v. Frost, 4 Del. Rep., 558 ; Quinby v. Duncan, 4 Harrington’s (Del.) Rep., 384. MARYLAND. The provisions of the Maryland constitution are: Every [white] male citizen of the United States, of the age of twenty-one years or upward, who has been a resi- dent of the state for one year, and of the legislative dis- trict of Baltimore city, or of the county in which he may offer to vote, for six months next preceding the election, shall be entitled to vote in the ward or election district in which he resides, at all elections hereafter to be held in this state; and in case any county or city shall be so divided as to form portions of different electoral districts for the election of representatives in congress, senators, delegates or other officers, then, to entitle a person to vote for such officer, he must have been a resident of that part of the county or city which shall form a part of the electoral district in which he offers to vote for six months next preceding the election; but a person who shall have acquired a residence in such county or city, entitling him to vote at any such election, shall be enti- tled to vote in the election district from which he re- inoved until he shall have acquired a residence in the part of the county or city to which he has removed. No person above the age of twenty-one years, convicted of larceny or other infamous crime, unless pardoned by the governor, shall ever thereafter be entitled to vote at SUFFRAGE AND ELEcTIons. 39 any election in this state; and no person under guar- dianship as a lunatic, or as a person non compos mentis, shall be entitled to vote. If any person shall give or offer to give, directly or in- directly, any bribe, present or reward, or any promise or security for the payment or the delivery of money, or other thing, to induce any voter to refrain from casting his vote, or to prevent him, in any way, from voting, or to procure a vote for any candidate or person proposed or voted for as elector of president and vice president of the United States, or representative in congress, or for any office of profit or trust created by the constitution or laws of this state, or by the ordinances and authority of the mayor and city council of Baltimore, the person giving or offering to give, and the person receiving the same, and any person who gives or causes to be given, an illegal vote, knowing it to be such, at any election to be hereafter held in this state, shall, on conviction in a court of law, in addition to the penalties now or here- after to be imposed by law, be forever disqualified to hold any office of profit or trust, or to vote at any elec- tion thereafter. The two succeeding sections require the legislature to enact laws punishing with fine and imprisonment any person who shall remove into any election district or precinct of Baltimore, not for the purpose of acquiring a bona fide residence, but for the purpose of voting at an approaching election, also all persons who vote illegally, 40 THE State CoNnsTITUTIONS. anc to enact a registration law which shall be conclusive evidence of the right of every person to vote. (The word in brackets abrogated by the amendments to the United States constitution.) See 18 Maryland Rep., 479 ; 22 Maryland Rep., 171; 23 Maryland Rep., 512 ; 33 Maryland Rep., 142. PENNSYLVANIA. The suffrage article of the Pennsylvania constitution relating to the qualifications for voting, is as follows: Every male citizen twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections: First. He shall have been a citizen of the United States at least one month. Second. He shall have resided in the state one year, (or, if having previously been a qualified elector, or na- tive born citizen of the state, he shall have removed therefrom and returned, then six months,) immediately preceding the election. Third. He shall have resided in the election district where he shall offer to vote at least two months immedi- ately preceding the election. Fourth. If twenty-two years of age or upwards, he shall have paid within two years a state or county tax, which shall have been assessed at least two months, and paid at least one month, before the election. Whenever any of the qualified electors of this com- SUFFRAGE AND ELEcrTIons. 41 monwealth shall be in actual military service, under a requisition from the president of the United States, or by the authority of this commonwealth, such electors may exercise the right of suffrage in all elections by the citi- zens, under such regulations as are or shall be prescribed by law, as fully as if they were present at their usual place of election. All laws regulating the holding of elections by the citizens or for the registration of electors, shall be uni- form throughout the state, but no elector shall be deprived of the privilege of voting by reason of his name not being registered. Any person who shall give or promise or offer to give, to an elector, any money, reward or other valuable con- sideration for his vote at an election, or for withholding the same, or who shall give or promise to give such con- sideration to any other person or party for such elector’s vote, or for the withnolding thereof, and any elector who shall receive, or agree to receive, for himself or for another, any money, reward or other valuable considera- tion, for his vote at an election, or for withholding the same, shall thereby forfeit the right to vote at such elec- tion, and any elector whose right to vote shall be challenged for such cause before the election officers, shall be required to swear or affirm that the matter of the challenge is untrue before his vote shall be received. Any person convicted of wilful violation of the elec- tion laws, shall, in addition to any penalties provided by 42 Tue State ConstTITUTIONS. law, be deprived of the right of suffrage absolutely for a term of four years. For the purpose of voting, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while employed in the service either civil or military, of this state or of the United States, nor while engaged in the navigation of the waters of the state or of the United States or on the high seas, nor -while a student at any institution of learning, nor while kept in any poor house or other asylum at public expense, nor while confined in public prison, (The section which provides that elections shall be by ballot, also provides that, when voted, the ballots shall be numbered by the election officer, that the voter may write his name upon it, and that the election officer shall be sworn or affirmed not to disclose how any elector shall have voted unless required to do so as a witness in a judicial proceeding.) See Fry’s Appeal, 71 Penn. State Rep,, 302; Stewart ». Foster, 2 Binney, Pa., 110; Castine v. Smith, 2 Sergeant and Rawle’s Rep., 267 ; Chase v. Miller, 41 Penn. State Rep., 403. VIRGINIA. The constitution of 1870, as amended in 1876, pro- vides: Every citizen of the United States, twenty-one years old, who shall have been a resident of the state twelve SUFFRAGE AND ELECTIONS. 43 months, and of the county, city or town in which he shall offer to vote, three months next preceding any election, and shall have paid to the state, before the day of election, the capitation tax required by law, for the preceding year, shall .be entitled to vote for members of the general assembly and all officers elected by the peo- ple; provided, that no officer, soldier, seaman or marine of the United States army or navy, shall be considered a resident of this state by reason of being stationed therein; and provided also, that the following persons shall be excluded from voting: First. Idiots and lunatics. Second. Persons convicted of bribery in any election, embezzlement of public funds, treason, felony, or petit larceny. Third. No person who, while a citizen of this state, has since the adoption of this constitution,+ fought with a deadly weapon, either within or beyond the bound- aries of this state, or knowingly conveyed a challenge, or aided or assisted in any manner in fighting a duel, shall be allowed to vote or hold any office of honor, profit or trust under this constitution.” 1. Constitution voted on July, 1869. Amendment adopted 1876. 2. The case of Cochran v. Jones, American Law Register, N. 8. 14, 222; arising under a clauce of this character was peculiar. The right of Jones to an office, for which he had received a large majority, was contested on the ground that he had accepted a challenge to fight a duel. The case was heard before the board for the determination of contested elections, com- posed of eminent lawyers, and being the final adjudication of such cases. The jurisdiction of the tribunal was questioned on the ground that there had never been a trial and conviction for the alleged offence. It was 44 THE Strate CoNsTITUTIONS, NORTH CAROLINA. The suffrage clauses of the North Carolina constitu- tion are as follows: Every male person born in the United States, and every male person who has been naturalized, twenty-one years old or upward, who shall have resided in the state twelve months next preceding the election, and ninety days in the county in which he offers to vote, shall be deemed an elector. But no person who, upon conviction or confession in open court, shall be adjudged guilty of felony, or of any other crime infamous by the laws of this state, and hereafter committed,! shall be deemed an elector, unless such person shall be restored to the right of citizenship in a manner prescribed by law. It shall be the duty of the general assembly to pro- vide, from time to time, for the registration of all electors ; and no person shall be allowed to vote without registra- tion, or to register without first taking an oath or affirma- tion to support and maintain the constitution and laws of the United States and the constitution and laws of North Carolina not inconsistent therewith. decided that this was not necessary, the constitution making the fact a dis- qualification, in which respect it differed in language, from other provisions, and that the board could determine the fact as well as adjudicate upon it. It was found that the defendant had accepted a challenge and was, there- fore, not entitled to the office, but it was also held that the contestant was not for that reason entitled to the office, the statute providing that when a majority of votes are cast for an ineligible candidate a new election must be had. 1. Afier Ist January, 1877. SUFFRAGE AND ELECTIONS. 45 See Robust v. Cannon, 4 Dev. & B. (N. C.) L., 256; Peo- ple ex. rel. Van Bokkeless, 73 N. C., 198. MISSOURI. ‘The Missouri constitution provides that— Every male citizen of the United States, and every male person of foreign birth who may have declared his inten- tion to become a citizen according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections by the people: First. He shall have resided in the state one year im- mediately preceding the election at which he offers io vote. Second. He shall have resided in the county, city or town where he shall offer to vote at least sixty days next preceding the election. For the purpose of voting no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, while employed in the service, either civil or military, of this state, or of the United States; nor while engaged in the navigation of the waters of the United States, or of the high seas, nor while a student of any institution of learning, nor while kept in a poorhouse or other asylum at public expense, nor while confined in any public prison. No person while kept at any poorhouse or other asy- 46 Tuer State CoNsTITUTIONS. lum, at public expense, nor while confined in any public prison, shall be entitled to vote at any election under the laws of this state. The general assembly may enact laws excluding from the right of voting all persons convicted of felony or other infamous crime, or misdemeanors connected with the right of suffrage. No officer, soldier or marine in the regular army or navy of the United States shall be entitled to vote at any election in this state. The legislature is required to provide by law for the registration of voters in cities and counties having a population of more than one hundred thousand, and is empowered to provide for registration in cities having a population exceeding twenty-Hve thousand and not ex- _ ceeding one hundred thousand. MINNESOTA. In Minnesota the constitutional article on suffrage provides that every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the United States one year, and in this state for four months next preceding any election, shall be entitled to vote at such election, in the election district of which he shall.at the time have been for ten days a resident, for all officers that now are, or hereafter may be, elective by the people. First. Citizens of the United States. SUFFRAGE AND ELrEcrions. 47 Second. Persons of foreign birth who shall have de- clared their intention to become citizens conformably to the laws of the United States upon the subject of naturalization. Third. Persons of mixed white and Indian blood, who have adopted the habits and customs of civilization. Fourth. Persons of Indian blood residing in this state, who have adopted the language, customs and habits of civilization, after an examination before any district court of the state, in such manner as may be provided by law, and shall have been pronounced by said court capable of enjoying the rights of citizenship within the state. No person not belonging to one of the classes specified in the preceding section, no person who has been con- victed of treason or any felony unless restored to civil rights, and no person under guardianship, or who may be non compos mentis or insane, shall be entitled or per- mitted to vote at any election in this state. For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his absence while employed in the service of the United States, nor while engaged upon the waters of this state or of the United States; nor while a student of any seminary of learning; nor while kept in any alms house or asylum, or confined in any public prison. No soldier, seaman or. marine in the army or navy of the United States, shall be deemed a resident of this state in consequence of being stationed within the same. 48 Tue Strate CoNstTITUTIONS. CALIFORNIA. The constitution of California reads: Every [white] male citizen of the United States, and every [white] male citizen of Mexico who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretero, on the thirtieth day of May, 1848, of the age of twenty- one years, who shall have been a resident of the state six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law; provided, that nothing herein contained shall be construed to prevent the legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage Indians or the de- scendants of Indians, in such special cases as such a proportion, of the legislative body may deem just and proper. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his pres-. ence 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 alms house or other asylum at public expense; nor while confined in any public prison. : 1. See Devlin v. Anderson, 38 California, 92. SUFFRAGE AND ELECTIONS. 49 No idiot or insane person, or person convicted of any infamous crime, shall be entitled to the privilege of an elector. (The words in brackets abrogated by the amendments to the United States constitution.) SOUTH CAROLINA. The constitution of South Carolina declares that— Every male citizen of the United States, of the age of twenty-one years and upwards, not laboring under the disabilities named in this constitution, without distinc- tion of race, color, or former condition, who shall be a resident of this state at the time of the adoption of this constitution,? or who shall thereafter reside in this state one year, and in the county in which he offers to vote sixty days next preceding any election, shall be entitled to vote for all officers that are now or hereafter may be elected by the people, and upon all questions submitted to the electors at any elections; provided, that no person shall be allowed to vote or hold office who is now, or hereafter may be, disqualified therefor by the constitu- tion of the United -States, until such disqualification shall be removed by the congress of the United States ; provided further, that no person, while kept in any alms 1. The statute on elections defines an infamous crime as any crime pun- ishable by death or imprisonment in the state prison. 2. Constitution adopted in 1868. 4 50 Tue Strate Constitutions. house or asylum, or of unsound mind, or confined in any public prison, shall be allowed to vote or hold office. It shall be the duty of the general assembly to provide, from time to time, for the registration of all voters. For the purpose of voting, no person shall be deemed to have lost his residence by reason of absence while employed in the service of the United States, nor while engaged upon the waters of this state or the United States, or of the high seas, nor while temporarily absent from the state. No soldier, seaman or marine 1n the army or navy of the United States, shall be deemed a resident of this state in consequence of having been stationed therein. The general assembly shall never pass any law that will deprive any of the citizens of this state of the right of suffrage, except for treason, murder, robbery or duel- ling whereof the persons shall have been duly tried and convicted. No person shall be disfranchised for felony, or other crime committed while such person was a slave. GEORGIA. It is provided by the Georgia constitution that— Every male person born in the United States, and every male person who has been naturalized, or who has legally declared his intention to become a citizen of the United States, twenty-one years old or upward, who shall have resided in this state six months next preceding the SUFFRAGE AND ELECTIONS. 51 election, and shall have resided thirty days in the county in which he offers to vote, and shall have paid all taxes which may have been required of him, and which he may have had an opportunity of paying, agreeably to law, for the year preceding the election (except as here- inafter provided), shall be deemed an elector; and every male citizen of the United States, of the age aforesaid (except as hereinafter provided), who may be a resident of the state at the time! of the adoption of this constitu- tion, shall be deemed an elector, and shall have all the rights of an elector as aforesaid ; provided, that no soldier, sailor or marine in the military or naval service of the ‘United States, shall acquire the rights of an elector by reason of being stationed on duty in this state; and no person shall vote who, if challenged, shall refuse to take the following oath : . “T do swear that I have not given or received, nor do I expect to give or receive, any money, treat, or other thing of value, by which my vote or any vote, is affected, or expected to be affected at this election, nor have I given, or promised any reward, or made any threat by which to prevent any person from voting at this elec- tion.” No person who, after the adoption of this constitution, being a resident of this state, shall engage in a duel in this state, or elsewhere, or shall send or accept a challenge, or be aider or abettor in such duel, shall vote or hold 1. Constitution adopted in 1868. 52 Tue State CONSTITUTIONS. office in this state; and every such person shall also be subject to such punishment as the law may prescribe. The general assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold office: ist. Those who shall have been con- victed of treason, embezzlement of public funds, malfeas- ance in office, crime punishable by law with imprison- ment in the penitentiary or bribery. 2d. Idiots or in- sane persons. KENTUCKY. In Kentucky the constitution provides that— Every free male citizen, of the age of twenty-one years, who has resided in the state two years, or in the county, town or city in which he offers to vote, one year next preceding the election, shall be a voter; but such voter shall have been, for sixty days next preceding the election, a resident of the precinct in which he offers to vote and he shall vote in said precinct, and not else- where.+ Laws shall be made to exclude from office and from suffrage those who shall thereafter be convicted of brib- 1. Foreigners who have resided in the state, county and precinct the length of time required by the constitution, are entitled to vote immedi- ately upon being naturalized. It does not require a residence after the alien becomes a citizen, or after he attains the age of twenty-one, but only a previous residence next preceding the election, either before or after he acquires citizenship, or attains his majority. Morgan v. Dudley, 18 B. Monroe Kentucky Rep., 724. SUFFRAGE AND ELECTIONS. 53 ery, perjury, forgery or other crimes or high misde- meanors. The privilege of free suffrage shall be sup- ported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult or other improper practices. Absence on the business of this state, or the United States shall not forfeit a residence once obtained so as to deprive anyone of the right of suffrage, or of being elected or appointed to any office under this common- wealth under the exception contained in this constitu- tion. TENNESSEE. The Tennessee constitution declares: That elections shall be free and equal, and the right of suffrage as hereinafter declared, shall never be denied to any person entitled thereto, except upon a conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction. Every male person of the age of twenty-one years, being a citizen of the United States and a resident of this state for twelve months, and of the county wherein he may offer his vote for six months next preceding the day of election, shall be entitled to vote for members of the general assembly, and other civil officers for the county or district in which he resides; and there shall be no qualification attached to the right of suffrage, 54 Tue State ConstITurions. except that each voter shall give to the judges of election, where he offers to vote, satisfactory evidence that he has paid the poll taxes assessed against him for such preced- ing period as the legislature may prescribe and at such time as may be prescribed by law; without which his vote cannot be received. And all male citizens of the state shall be subject to the payment of poll taxes, and the performance of military duty within such age as may be prescribed. by law. The general assembly shall have power to enact laws requiring voters to vote in the election precinct in which they may reside, and laws to secure the freedom of elections and the purity of the ballot-box. Laws may be passed excluding from the right of suff- rage, persons who may be convicted of infamous crimes. Any elector who shall receive any gift or reward for his vote, in meat, drink, money or otherwise, shall suf- fer such punishment as the laws shall direct. LOUISIANA. The suffrage clauses of the Louisiana constitution, adopted in 1868, are as follows: Every male person of the age of twenty-one years or upwards, born or naturalized in the United States, and subject to the jurisdiction thereof, and a resident of this state one year next preceding an election, and the last ten days in the parish in which he offers to vote, shall SUFFRAGE AND ELECTIONS. 55 be deemed an elector, except those disfranchised by this constitution, and persons under interdiction. (Art. 99.) The following persons shall be prohibited from voting and holding any office: All persons who shall be convicted of treason, perjury, forgery, bribery, or other crime punishable in the penitentiary, and per- sons under interdiction. All persons who are estopped from claiming the right of suffrage by abjuring their al- legiance to the United States government, or by notori- ously levying war against it, or adhering to its enemies, giving them aid or comfort, but who have not expatri- ated themselves, nor have been convicted of any of the crimes mentioned in the first paragraph of this article, are hereby restored to the said right, except the follow- ing: Those who held office, civil or military, for one year or more, under the organization styled “the Confederate States of America ;” those who registered themselves as enemies of the United States; those who acted as leaders of guerilla bands during the late rebellion ; those who, in the advocacy of treason, wrote or published newspaper articles or preached sermons during the late rebellion, and those who voted for and signed an ordinance of secession in any state. No person included in these ex- ceptions shall either vote or hold office until he shall have relieved himself by voluntarily writing and signing a certificate setting forth that he acknowledges the late rebellion to have been morally and politically wrong, and that he regrets any aid and comfort he may have given it; and he shall file the certificate in the office of 56 Tue Strate Constitutions. the secretary of state, and it shall be published in the official journal: Provided, That no person who, prior to the first of January, eighteen hundred and sixty-eight, favored the execution of the laws of the United States popularly known as the reconstruction acts of Congress, and openly and actively assisted the loyal men of the state in their efforts to restore Louisiana to her position in the Union, shall be held to be included among those herein excepted. Registrars of votersshall take the oath of any such person as prima facie evidence of the fact that he is entitled to the benefit of this proviso. The privilege of free suffrage shall be supported by laws regulating elections and prohibiting under ade- quate penalties all undue influence thereon from power, bribery, tumult, or other improper practice. Amendment to Article 99, ratified in 1870: No person shall hold any office, or shall be permitted to vote at any election, or to act as a juror, who, in due course of law, shall have been convicted of treason, perjury, forgery, bribery, or other crime punishable by imprisonment in the penitentiary, or who shall have been under interdic- tion. MISSISSIPPI. The Mississippi constitution provides: All male inhabitants of this state, except idiots and insane persons, and Indians not taxed, citizens of the United States, or naturalized, twenty-one years old and SUFFRAGE AND ELECTIONS. 57 upwards, who have resided in this state six months, and in the county one month next preceding the day of elec- tion, at which said inhabitant offers to vote, and who are duly registered according to the requirements of sec- tion three of this article, and who are not disqualified by reason of any crime, are declared to be qualified electors. The legislature shall provide, by law, for the registra- tion of all persons entitled to vote at any election, and all persons entitled to register shall take and subscribe to the following oath or affirmation: “I ; do solemnly swear [or affirm] in the presence of Al- mighty God, that I am twenty-one years old; that I have resided in this state six months, and in county one month; that I will faithfully support and obey the constitution and laws of the United States and of the state of Mississippi, and will bear true faith and allegiance to the same; that I am not disfranchised in any of the provisions of the acts known as the recon- struction acts of the thirty-ninth and fortieth congress; and that I admit the political and civil equality of all men; so help me God;” provided, that if congress shall at any time remove the disabilities of any person dis- franchised in the said reconstruction acts of the said thirty-ninth and fortieth congress, (and the legislature of this state shall concur therein,) then so much of this oath, and so much only, as refers to the said reconstruc- tion acts, shall not be required of such person, so par- doned, to entitle him to be registered. In time of war, insurrection or rebellion, the right to 58 Tue STATE CONSTITUTIONS. vote at such place and in such manner as shall be pre- scribed by law, shall be enjoyed by all persons otherwise entitled thereto, who may be in the actual military or naval service of the United States; provided, said votes be made to apply in the county or precinct wherein they reside. The legislature shall pass laws to exclude from office and from suffrage those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes or mis- demeanors ; and every person shall] be disqualified from holding any office, or place of honor, profit or trust, under the authority of this state, who shall be convicted of having given or offered any bribe to procure his election or appointment. The crime of duelling is a cause for disfranchisement. ALABAMA. The article on suffrage and elections is as follows: Every male citizen of the United States, and every male person of foreign birth who may have legally de- clared his intention to become a citizen of the United States before he offers to vote, who is twenty-one years old or upwards, possessing the following qualifications, shall be an elector, and shall be entitled to vote at any election by the people, except as hereinafter provided: First. He shall have resided in the state at least one year immediately preceding the election at which he offers to vote. SUFFRAGE AND ELECTIONS. 59 Second. He shall have resided in the county for three months, and in the precinct, district or ward for thirty days immediately preceding the election at which he offers to vote; provided, that the general assembly may: prescribe a longer or shorter residence in any precinct in any county, or in any ward in any incorporated city or town having a population of more than 5,000 inhab- itants, but in no case to exceed three months;! and pro- vided, that no soldier, sailor or marine in the military service of the United States shall acquire a residence by being stationed in this state. The following classes shall not be permitted to register, vote or hold office: First. Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, bribery, or other crime punishable by imprisonment in the penitentiary. Second. Those who are idiots or insane. The legislature shall pass all laws, not inconsistent with this constitution, to regulate and govern elections in this state; and all such laws shall be uniform through- out the state. The general assembly may, when neces sary, provide by law for the registration of electors throughout the state, or in any incorporated city or town 1. The Code of Alabama (1876) on Elections, page 228, section 224, provides that electors who have resided in incorporated cities of over 20,000 population for thirty days, and remove from one ward to another, shall, after a residence of one day therein, be entitled to vote, on present- ing a certificate of the judge probate that he was a registered voter in the ward from which he removed. Section 226, page 229, defines residence, 60 Tue STATE CONSTITUTIONS. thereof; and when it is so provided, no person shall vote at any election unless he shall have registered as required by law. It shall be the duty of the general assembly to pass adequate laws giving protection against the evils arising from the use of intoxicating liquors at elections. ARKANSAS. The franchise article is as follows: : Every male citizen of the United States, or male per- son who has declared his intention of becoming the same, of the age of twenty-one years, who has resided in the state twelve months, and in the county six months, and in the voting precinct or ward one month, next preced- ing any election, where he may propose to vote, shall be entitled to vote at all elections by the people. Elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage; nor shall any law be enacted whereby the right to vote at any election shall be made to depend upon any previous registration of the elector’s name; or whereby such right shall be impaired or forfeited, except for the commission of a felony at com- mon law, upon lawful conviction thereof. No idiot or insane person shall be enimiled to the privileges of an elector. No soldier, sailor or marine, in the military or naval SUFFRAGE AND ELECTIONS. 61 service of the United States, shall acquire a residence by reason of being stationed on duty in this state. Absence on business of the state or of the United States, or on a visit, or on necessary private business, shall not cause a forfeiture of residence once obtained. WEST VIRGINIA. The constitution of West Virginia provides: The male citizens of the state shall be entitled to vote at all elec- tions held within the counties in which they respectively reside; but no person who is a minor, or of unsound mind, or a pauper, or who is under conviction of treason, felony or bribery at an election, or who has not been a resident of the state for one year, and of the county in which he offers to vote for sixty days next preceding such offer, shall be permitted to vote while such disability continues; but no person in the military, naval or marine service of the United States shall be deemed a resident of this state by reason of being stationed therein. No citizen shall ever be denied or refused the right or privilege of voting at an election because his name is not or has not been registered or listed as a qualified voter. The legislature shall prescribe the manner of conduct- ing and making returns of elections, and of determining 1. See case of John Bailey, Cl. & Hall, 411. “An inhabitant of the state is one who is bona fide a member of the state, subject to all the requisitions of its laws, and entitled to all the privileges and advantages which they confer.” 62 THe Strate ConstITUTIONS. contested elections; and shall pass such laws as may be necessary and proper to prevent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the vote, ascertaining or declaring the result, or fraud in any manner upon the ballot. NEVADA. The constitution of Nevada provides: Every male citizen of the United States (not laboring under the disabilities named in this constitution) of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now are or hereafter may be elected by the people, and upon all questions submitted to the electors at such elections ; provided, that no person who has been or may be convicted of treason or felony in any state or territory of the United States, unless restored to civil rights; and no person who, after arriving at the age of eighteen years, shall have voluntarily borne arms against the United States, or held civil or military office under the so-called Confederate States, or either of them, unless an amnesty be granted to such by the federal govern- ment, and no idiot or insane person, shall be entitled to the privilege of an elector. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his pres- SUFFRAGE AND ELECTIONS. 63 ence or absence while employed in the service of the United States; nor while engaged in the navigation of the waters of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any alms house, or other asylum, at public ex- pense; nor while confined in any public prison. The right of suffrage shall be enjoyed by all persons otherwise entitled to the same, who may be in the mili- tary or naval service of the United States; provided, that the votes so cast shall be made to apply to the county and township of which said voters were bona fide resi- dents at the time of their enlistment; and provided fur- ther, that the payment of a poll tax or a registration of such voters shall not be required as a condition to the right of voting. Provision shall be made by law for the registration of the names of the electors within the counties of which they may be residents, and for the ascertainment by proper proofs of the persons who shall be entitled to the right of suffrage, as hereby established; to preserve the purity of, elections, and to regulate the manner of hold- ing and making the returns of the same; and the legis- lature shall have power to prescribe by law any other or further rules or oaths as may be deemed necessary as a test of electoral qualification. The legislature shall provide by law for the payment of an annual poll-tax, of not less than two nor exceeding four dollars, for each male person resident in the state, between the ages of twenty-one and thirty years, (un- 64 Tur State CONSTITUTIONS. civilized American Indians excepted,) one-half to be applied for state and one-half for county purposes ; and the legislature may, in its discretion, make such payment a condition to the right of voting. Laws shall be passed regulating elections, and pro- hibiting, under adequate penalties, all undue influence therein from power, bribery, tumult or other improper practice. No person who, while a citizen of this state, has since the adoption of this constitution (1864), had any connec- tion with duelling, can vote. NEBRASKA. By the constitution of Nebraska it is provided that— Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state, county, precinct and ward for the time provided by law,! shall be an elector: First. Citizens of the United States. Second. Persons of foreign birth who shall have de- clared their intention to become citizens conformably to the laws of the United States on the subject of naturali- zation at least thirty days prior to an election. No person shall be qualified to vote who is non compos mentis, or who has been convicted of treason or felony 1. The revised statutes of Nebraska, 1873, title elections, section 29, page 360, requires an actual and consecutive residence in the state for six months, in the county forty days consecutively, and in the precinct or ward ten days, next preceding the election. SUFFRAGE AND ELECTIONS. 65 under the law of this state or of the United States, unless restored to civil rights. Every elector in the actual military service of the United States, or of this state, and not in the regular army, may exercise the right of suffrage at such place and under such regulations as may be provided by law. No soldier, seaman or marine in the army and navy of the United States shall be deemed a resident of the state in consequence of being stationed therein. TEXAS. The Texas constitution provides as follows: Tne following class of persons shall not be allowed to vote in this state, to wit: First. Persons under twenty-one years of age. Second. Idiots and lunatics. Third. All paupers supported by any county. Fourth. All persons convicted of any felony, subject to such exceptions as the legislature may make. Fifth. All soldiers, marines and seamen employed in the service of the army or navy of the United States. Every male person subject to none of the foregoing disqualifications, who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, and who shall have resided in this state one year next preceding an election, and the last six months within the district or county in which he offers to vote, shall be deemed a qualified elector; and every 5 66 THE STATE CONSTITUTIONS. male person of foreign birth, subject to none of the fore- going disqualifications, who, at any time before an elec- tion, shall have declared his intention to become a citizen of the United States in accordance with the federal naturalization laws, and shall have resided in this state one year next preceding such election, and the last six months in the county in which he offers to vote, shall also be deemed a qualified elector; and all electors shall vote in the election precinct of their residence. Pro- vided that electors living in any unorganized county may vote at any election precinct in the county to which such county is attached for judicial purposes. Residence of voters qualified as above for six months in a city or corporate town, gives the right to vote for mayor and other elective officers, but not on questions involving expenditure or debt unless they pay taxes on property in such city or town. Laws shall be made to exclude from office, serving on juries, and from the right of suffrage those who may have been or shall hereafter be convicted of bribery, perjury, forgery or other high crimes. The privilege of free suffrage shall be protected by laws regulating elec- tions and prohibiting under adequate penalties all undue influence therein from power, bribery, tumult or other improper practice. The right of suffrage is forfeited by taking part or aid- ing and abetting in duelling. Absence on business of the state or of the United States shall not forfeit a residence once obtained, so as to de- prive anyone of the right of suffrage. SUFFRAGE AND ELECTIONS. 67 FLORIDA. The article on suffrage is as follows: Every male person of the age of twenty-one years and upwards, of whatever race, color, nationality or previous condition, or who shall, at the time of offering to vote, be a citizen of the United States, or who shall have declared his intention to become such, in conformity to the laws of the United States, and who shall have resided and had his habitation, domicile, home and place of permanent abode in Florida for one year, and in the county for six months, next preceding the election at which he shall offer to vote, shall in such county be deemed a qualified elector at all elections under this constitution. Every elector shall, at the time of his registration, take and subscribe the following oath: ee D do solemnly swear that I will support, protect, and defend the constitution and government of the United States, and the constitution and government of Florida, against all enemies, foreign or domestic; that I will bear true faith, loyalty and allegiance to the same, any ordinance or resolution of any state convention or legislation to the contrary notwithstanding; so help me God.” No person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election; nor shall any person convicted of felony be qualified to vote at any election, unless restored to civil rights. At any election at which a citizen or subject of any 68 Tue State CONSTITUTIONS. foreign country shall offer to vote, under the provisions of this constitution, he shall present to the persons law- fully authorized to conduct and supervise such election a duly sealed and certified copy of his declaration of in- tention, otherwise he shall not be allowed to vote; and any naturalized citizen offering to vote shall produce before said persons, lawfully authorized to conduct and supervise the election, his certificate of naturalization, or a duly sealed and certified copy thereof; otherwise he shall not be permitted to vote. The legislature shall have power, and shall enact the necessary laws, to exclude from every office of honor, power, trust or profit, civil or military, within the state, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime, or who shall make, or become, directly or indirectly, interested in, any bet or wager, the result of which shall depend upon any election; or who shall hereafter! fight a duel, or send or accept. a challenge to fight, or who shall bea second to either party, or be the bearer of such challenge or acceptance; but the legal disability shall not accrue until after trial and conviciion by due form of law. The legislature at its first session after the ratification of this constitution shall by law provide for the registra- tion, by the clerks of the circuit court in each county, of all the legally qualified voters in such county, and for the returns of elections;-and shall also provide that after the completion, from time to time, of such registra- L Constitution of 1868. SUFFRAGE AND ELECTIONS. 69 tion, no person not duly registered according to law shall be allowed to vote. The legislature shall enact laws requiring educational qualifications for electors after the year one thousand eight hundred and eighty, but no such law shall be made applicable to any elector who may have registered or voted at any election previous thereto. COLORADO. It is provided by the Colorado constitution that: Every male person over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections: First. He shall be a citizen of the United States, or not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote. Second. He shall have resided in the state six months immediately preceding the election at which he offers to vote, and in the county, city, town, ward or precinct, such time as may be prescribed by law ;1 provided, that no person shall be denied the right to vote at any school district election, nor to hold any office, on account of sex. The general assembly shall, at the first session thereof, and may at any subsequent session, enact laws to extend a 1. General Laws of Colorado, 1877. Title Elections. A residence of thirty days in the county, and ten in the ward or precinct is prescribed. 70 - Tue Stare Constirutions. the right of suffrage to women of lawful age, and other- wise qualified according to the provisions of this article. No such enactment shall be of effect until submitted to a vote of the qualified electors at a general. election, nor unless the same be approved by a majority of those voting thereon. The general assembly may prescribe, by law, an edu- cational qualification for electors, but no such law shall take effect prior to the year of our Lord one thousand eight hundred and ninety, and no qualified elector shall be thereby disqualified. . 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 the civil or military service of the state, or of the United States, nor while a resident at any institution of learning, nor while kept at public expense in any poor house or other asylum, nor while confined in public prison. No person while confined in any public prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall, without further action, be invested with all the rights of citizenship, except as otherwise provided in this consti- tution. The general assembly shall pass laws to secure the SUFFRAGE AND ELECTIONS. 71 purity of elections and guard against abuses of the elec- tive franchise. (On questions of contracting certain loans by counties, which are required to be submitted to a vote of the peo- ple, the suffrage is restricted to taxpayers.) The state constitutions provide uniformly that the elections shall be free and equal and shall be by ballot, and that electors shall be privileged from arrest, except- ing for high crimes and breaches of the peace, and from militia duty, on election day. In some of the states the exemption continues while the elector is going to and returning. from the place of election, and in one state it takes effect some days before the election and continues for two days after. These are, however, privi- leges designed to secure the elector in the enjoyment of the elective franchise, rather than qualifications for sufirage, and we have. not, therefore, included them in the suffrage articles given in the foregoing pages. They serve, taken in conjunction with provisions which make bribery and other crimes a cause for disfranchisement, to show the high estimate put upon the right of suffrage by those who framed our organic laws, and their anxiety to place it alike beyond venal and mercenary influences and the changing caprice of legislation, too often prompted and controlled by sinister motive and undue partisan- ship. As we shall see hereinafter, it has been more than 72 THe Strate ConstTiIturions. once found necessary to invoke, through the courts, the constitutional guarantees as a means of asserting the full measure of the right when it has been encroached upon by crude, ill-digested or designing legislation. Cuapter III. COMPUTATION OF TIME. As has been: observed, the language used uniformly in nearly all the foregoing constitutional provisions, in prescribing the time of residence, is “ next preceding the election.” This has been interpreted as requiring the full completion of time without counting the day on which the election is held.1 In the contested election case of People v. Holden, 28 California Rep. 123, one of the votes in question was cast by a person who went to the county in which he voted on the 22d of September, and the election was held on the 21st of October following. The court said that in order to make thirty days it would be necessary to count both of those days and the whole ofeach. “The language of the constitution and the stat- ute is that the voter must have resided in the county thirty days next preceding the election. In our judg- ment this language means that he must have resided in the county thirty days next preceding the day of elec- .tion. But conceding that it means next preceding the event of the election, such event cannot be said to have transpired until sundown on the day of the election.” The vote was rejected accordingly. 1. Anthony v. Halderman, 7 Kansas Rep. 50. Cuapter IV. SUFFRAGE RESIDENCE. Residence for a certain specified time being, in every state, a qualification for suffrage, the inquiry what the term residence, as thus used, means, becomes important. The decisions of the courts are to the effect that, while the term residence, in its general sense, is not necessarily synonymous with domicile, the latter always embracing within its meaning the intention of making the place the home of the party,! the suffrage residence spoken of in the state constitutions is legal residence, which means the same as domicile.2, Two things must concur to con- stitute domicile: first, residence; and second, the inten- tion to make it the home of the party.? On the other hand, it is not necessary that all the facts which may attend the actual residence of a person should exist in the same case in order to ascertain and fix his legal resi- dence.* In a late case, King v. Foxwell, (English Law Rep. 1, Foster v. Hall, 4 Humphrey (Tennessee) Rep., 346. 2. Brightly’s Leading Election Cases, 107, and note page 112; Ibid, page 468, 8. Story’s Conflict of Laws, section 44. 4, Stratton v. Brigham, 2 Sneed’s (Tennessee) Rep., 420. 76 SuFFRAGE AND ELECTIONS. Ch. Div. I, vol. ITI, page §18,) Sir George Jessel, Master of the Rolls, says: “Residence is not eating, drinking and sleeping at a particular house; all these things may be done and done for years while a person is traveling. On the other hand, a person may have a residence and yet not visit it for a great many years; that may be his only residence, he may have no other home.” In considering this subject, the courts have, in draw- ing the line between a mere residence of fact—defined by Chancellor Walworth as “a mere temporary locality of existence ”!—and a legal residence, and holding that the latter is the kind of residence required by the state constitutions as a qualification for suffrage, prescribed the same rules and tests as applicable in ascertaining whether it has been acquired, as are applied in deter- mining whether a place is a man’s domicile. Legal resi- dence and domicile are, in this connection, except as to the element of time, convertible terms.? There is a domicile of origin and a domicile of choice. “Tt is a settled principle of law that no man shall be without a domicile, and to secure this end the law at- tributes to every man, as soon as he is born, the domicile of his father, if legitimate, and of his mother if illegiti- mate.” Domicile of choice is the creation of the party, and is 1. Matter of Wrigley, 8 Wendell, N. Y. Rep., 140. 2. Crawford v. Wilson, 4 Barb., 504; Thorndike v. Boston, 1 Met., page 245. 3. Brightly’s Election Cases, note, page 479; 2 Daly, N. Y., page 528. SUFFRAGE RESIDENCE. 77 a conclusion of law from the fact of a mau fixing volun- tarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.! The domicile of origin is not lost until a new one is gained, by the abandonment of the one with the intention of acquiring the other,? but this doc- trine does not apply to a domicile of choice, which may be lost by intentional abandonment without a new one being gained, in such case the domicile of origin being restored until a new one is acquired. Thus it was decided in Udny v. Udny, that if a person abandon his domicile of choice, and travel in search of another domicile of choice, his former domicile of choice does not “remain until a new one is acquired,” but the domicile of origin comes instantly into action and con- tinues until a second domicile of choice is acquired. In King v. Foxwell, the question was, whether Charles King, the testator, a native of England, had ever changed his domicile of origin for one of choice, and then regained the former. It was in evidence that he came to this country, was naturalized, remained here fifteen years, sold out and returned to England. Sir George Jessel, 1. Brightly’s Election Cases, page 279, note. Quoting Case v. Clark, 5 Mason, U. 8. page 70. Holdman vy. Eckford L. R. 8 Eq. 681. 2. See cases cited hereafter. Also Venable v. Paulding, 19 Minnesota, 488; State v. Frost, 4 Delaware Rep., 558; 2 Sneed, (Tenn.) 420; 4 Hum- phrey, (Tenn.) 346; Hairsville v. Hairston, 5 Mississippi, (Cushman, ) 704; Griffin v. Wall, 32 Alaba., 149; Beardstown v. Virginia, 81 Ill, 541; Boyd v. Beck, 29 Ala., 703; State v. Judge, etc., 13 Ala., 805; Somerville vy. Somerville, 5 Ves., 750, 780; Harvard College v. Gore, 5 Pick, (Mass.) 370; Bell v. K, Law Rep. 1868, 1 H. L., Sec. 317. 78 SUFFRAGE AND ELECTIONS. master of the rolls, said: “I have no doubt the testator acquired an American domicile; that is quite independent of the question whether he ever lost it. What is domi- cile? I have had before me a great number of authori- ties, and the conclusion I draw is this, that in order that a man may change his domicile of origin he must choose a new domicile—the word “choose” indicates that the act is voluntary on his part, he must choose a new dom- icile by fixing his sole or principal residence in a new country, (that is in a country which is not his country of origin,) with the intention of residing there for a period not limited as to time.” It was held that by his return to England after abandoning this country, his domicile in the former was regained. The act of removal must accompany and concur with 1. Udny v. Udny, Law Report 1869, 1 H. L., Sec. 41. King v. Foxwell, Eng. Law Rep., Chan. Div. I, vol. III, page 518. You must show permanent residence in a new country. Neither of these is a simple fact, for I take it that all these questions of status involve a good deal more than can be seen by the eye * * ¥* * Again, what is the meaning of permanent residence? That is a question which cannot be decided by mere length of time, the answer to it must involve the consideration of the intention of the person. * * * Iam of opin- ion that he (King) has acquired an American domicile. * * * The question I have now to decide is, whether the testator, having acquired an American domicile, abandoned it. Now a man having acquired a domicile of choice may abandon it, without it being incumbent on him to acquire a new domicile of choice; that is to say, he may abandon his domicile of choice without acquiring in strictness any new domicile, because his domi- cile of origin reverts. * * * I think it is established that he (King) abandoned his new domicile. * * * He sold off his property in America, he left the country, and his letters show he had no intention of returning, Surrrice REsIDENCE. 79 the intention,t and, as a mere contingent intention of removal will not change the domicile, so, if there be a perfect intention to change,? accompanied by an actual removal, a mere floating intention to return at some future time will not avail.® To acquire a new domicile there must be the animus manendi,* and there must be coupled with this intention of remaining permanently the fact of residence.® Absence from one’s domicile for a temporary purpose, with an animus revertendi, will not change a domicile.® While these rules are applied in determining the ac- quisition of both domicile and legal residence, it is, nev- ertheless, to be observed that, in regard to residence as a qualification for suffrage, time always enters as a mate- rial consideration. In this respect suffrage residence and domicile differ. The time in which a domicile may be acquired may be shorter or longer. There is authority for the broad statement that in no case is there recog- nized a definite period of time as necessary to create a domicile. ; 1. 2 Swann’s (Tennessee) Rep., 232; State v. Hallett, 8 Ala., 139; Har- dy v. Deleon, 5 Texas, 235. 2. 2 Sneed (Tenn.), 420. 3. Idem. 4, Case v. Clark, 5 Mason U.S. C., 70; Costen v. Mitchell, 4 Washing- ton U.S. C., 191; Story’s Con. Law, ¢ 44. 5. Leach yv. Pillsbury, 15 N. H., 137; 44 Id., 383; Boardsman v. House, 18 Wendell, 512; Id., 644; Henrietta v. Ox, 2 Ohio St., 32; Hegeman v. Fox, 31 Barb. N. Y., 475; McIntyre, &c., 4 Texas, 187; Frost v. Brisbin, 19 Wendell, 11. _6, Riswick v. Davis, 19 Maryland, 82. 80 SUFFRAGE AND ELECTIONS. In Harrison, Jr., v. Harrison! it is said that “in none of the decided cases on this subject is there a definite period of time recognized as being necessary to create a domicile. The time may be shorter or longer according to the circumstances; and in all cases the question whether a person has or has not acquired a domicile, must depend mainly upon his actual or presumed inten- tion. In the case of Moore v. Darras, (4 Hag.. Eccl. R., 846,) it was said that domicile does not depend upon resi- dence alone, but upon a consideration of all the circum- stances of the case; a person being at a place is prima facie evidence that he is domiciled there; but it may be explained and the presumption rebutted. * * * * As a domicile may be acquired by a longer or shorter residence, depending upon the circumstances of the case, its true basis and foundation must be the intention, the quo animo of evidence. The apparent or avowed inten- tion of residence, not the manner of it, constitutes domi- cile. (Bradley v. Lowry, 1 Spear Ey. R., 2.) In the absence of-any avowed intention, and of acts which indicate a contrary intention, a long continued residence is regarded as a controlling circumstance in determining the ques- tion of domicile. In most cases it is unavoidably con- clusive.”? But to create suffrage residence other than that which is at the domicile of origin, a certain lapse of time, fixed by the state constitution, after removal and settlement 1, 5 Cushman (vol. 27) Mississippi Rep., 704. 2. The ship Ann Green, Gall Rep., 274; The Harmony, 2 Rob. R., 322; Bratton v. Bingham, 2 Sneed (Tenn.) Rep., 420, SUFFRAGE RESIDENCE. 81 under the circumstances which create a domicile, is necessary. There must be residence—that is, legal resi- dence—in the state and county, and sometimes in the precinct where the person offers to vote, for certain periods precedinz the election. It follows from this that the original suffrage residence is not, like the domicile of origin, immediately restored upon the abandonment of a residence of choice. In the case even of an actual return, it would seem that the requirement that the per- son must have been a resident for a specified time pre- ceding the election, would preclude the exercise of the franchise until the time was accomplished. The foregoing principles, summarized and illustrated in the note hereunder,! are further exemplified by the 1. By the term domicile, is meant the place where a person lives or has his home. In this sense, the place where a person has his residence, in- habitancy or commorancy is called his domicile. Iu a strict and legal sense, that is properly the domicile of a person where he has his true, fixed and permanent home, and principal establishment, and to which, when- ever he is absent, he has the intention of re urning.” Story’s Conflict of Laws, 341. “There is no doubt that every person has his domicile in that place which he makes his family residence and principal place of his business, and from which he is not about to depart unless some business requires; when he leaves it, he deems himself a wanderer.” Ibid, 3 42, “Actual residence is not indispenrable to retain a domicile after it is once acquired, but it is retained animo solo—by the mere intention not to change it or adopt another ; if, therefore, a person leaves his home for temporary purposes, with an intention to return to it, this change of place is not, in law, a change of domicile. Thus, if a person should go on voyage to sea, or to a foreign country for health or for pleasure, or for business of a tempo- rary nature, with an intention to return, such a transitory residence would not constitute a new domicile or amount to an abandonment of the old one, fur it is not the mere act of inhabitancy in a place which makes it the domicile, but it is the fact coupled with the intention of remaining there animo manendi.” Ibid, 2 44. 6 82 SUFFRAGE AND EQLEcTIons. facts and the adjudications in the cases collected in the succeeding pages. In Massachusetts it was decided in the case of Abington v. North Bridgewater, 23 Pick., 177, that every man has a domicile of origin, which he retains until he acquires another; and the one thus acquired is, in like manner retained. In Thorndike v. Boston, 1 Metcalf, 246, it was held that the actual change of one’s residence, with his family, and the taking of a residence elsewhere without any intention of returning, is one of the strong indica- tions of change of domicile, and unless controlled by other circumstances, is decisive. In this case the person whose residence or domicile was in question, resided in Boston, but went to Edinburgh, Scotland, with his family in 1837. Three years after the question arose. During that period he had remained in Edinburgh, returning to Boston for a few days only. It was in evidence that he had refused to sell his house in Boston because, in case of his death, his wife might wish to return. The court said: “The first question is, whether the instructions of the court to the jury were correct. There was evi- dence tending to show that when the plaintiff removed with his family to Edinburgh, in 1837, he did it with the intention of fixing his residence permanently in Scot- land, ete. In reference to this evidence, the jury were instructed that if they were satisfied that the plaintiff went abroad, not for the mere purpose of traveling, or for any particular object, intending to return when that was accomplished, but with the intention of remaining SuFFRAGE RESIDENCE. 88 abroad for an indefinite length of time, or with the in- tention of not returning to Boston to live, in the event of his return tothe United States, then he ceased to be an inhabitant of Boston ‘liable to taxation. We think this distinction, in connection with the subject matter to which it applied, was correct.” In New York the question of residence has been pre- sented and adjudicated upon in a great variety of aspects. Thus it has been held that the domicile of a citizen may be in one state and his residence in another;! that to constitute a residence within the legal meaning there must be a settled, fixed abode, an intention to remain permanently, at least for a time ;? that to effect a change of residence, it is not enough that one intends to change it, and believes he has done what in law amounts to a change; the intent and fact must concur, and his opinion cannot produce the result ;? that the fact that one is impelled to remove from one place to another, by reason of his health requiring another climate, does not preclude the removal from amounting to a change of domicile; it is no matter what were his inducements for his leaving his former home, if he left with the intent of residing permanently elsewhere ;* that a person leav- ing his place of fixed habitation and remaining in another place for a certain definite period and for a particular 1. Frost v. Brisbin, 19 Wend., 11. 2. Id. 8. Chaine v. Wilson, 8 Abb. Pr., 78. 4, 4 Barb., 504. 84 SUFFRAGE AND ELECTIONS. purpose—e. g., under an engagement to teach school for four months—does not lose his legal residence in such place of abode. The law of residence, and the cases bearing upon it, are ably reviewed in the case of Crawford v. Wilson, in which the doctrine of original domicile, and the facts and intention which constitute its abandonment and the acqui- sition of a new one, were laid down with great distinctness. The question was whether a young man who had gone from his original domicile at Saratoga, to a certain place to teach for a specified time, and at the end of that time had gone to another place to fill a second engagement, lost his original residence. The judge at the trial charged the jury on this point, “that so long as the plaintiff had his domicile in Saratoga Springs, no matter where his temporary place of business was, his residence was at Saratoga Springs, and that prima facie the place of a man’s birth is a man’s domicile, and until the dom- icile is intentionally changed, the residence is at the place of domicile.” The New York Supreme Court sus- tained these views.? 1. Crawford v. Wilson, 4 Barb., 504. 2. 4 Barbour, N. Y., 504. Said Paige, J., delivering the opinion of the court: “Every person must have a domicile somewhere; and he can only have one domicile at one and the same time, Every person has a domi- cile of origin, which he retains until he acquires another; and the one thus acquired is in like manner retained-until he acquires a third domicile. The existing domicile always continues until another is acquired. So by the acquisition of another the former domicile is relinquished. (Abington v. North Bridgwater, 23 Pick, 170; Thorndike v. City of Boston, 1 Met., 242; Killmur vy. Bennett, 8 Id, 199.) The domicile of origin arises from birth or connections. The domicile of a minor follows that of his father, SUFFRAGE RESIDENCE. 85 The question whether the acquirement of a new resi- dence, as distinguished from a domicile, is indispensable to the loss of an old one, was considered at length in the ease of North Yarmouth v. West Gardiner, (68 Maine, 207,) in which it was decided that a residence once established may be abandoned without having acquired.another. In the same case some distinctions were drawn between the terms residence and domicile, it being held that the lat- ter cannot be, like the former, lost until another is gained. The question was whether a person whose original domi- cile was in Yarmouth, but who had removed to West Gardiner, without any intention either to return or to make that place his residence, and had remained there and remains until he acquires another, which he cannot do until he becomes an adult, (Andrews v. Heriot, 4 Cowen, 516, note 2.) A domicile is defined to be the place where a person has fixed his habitation, without any present intention of removing therefrom, (Putnam v. Johnson, 10 Mass. Rep., 488, per Parker, J.; 1 Bouvier’s L. Dic. 480.) It is defined by Webster to be a place of permanent residence, either of an individual or a family. Chancellor Kent says the place where a man carries on his established business, or professional occupation, and has a home and per- manent residence, is his domicile, (2 Kent’s Com., 431, note e 2nd Ed.) Senator Allen, in the Matter of Wrigley, (8 Wend, 142,) defines domicile to be ‘a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time.” A person being at a place is prima facie evidence that he is domiciled there, but it may be explained and the presumption revoked, (2 Kent’s Com., 431, note (2) 2 Bos. & Pul., 229, note per lord Thurlow.) * * * To effect a change of domicile there must be intention and act united. The forum originis, or domicile of nativity remains until a subsequent domicile is acquired animo et facto. (2 Kent’s Com., 431, note c.) Ifa party removes from his dom- icile with an intention of returning, he does not lose his domicile; as he can have acquired one nowhere else. (1 Bouvier, 490.) So if a person leaves the place of his domicile temporarily, or for a particular purpose, and does not take up a permanent residence elsewhere, he does not change his domicile. (Granby v. Amherst, 7 Mass., 5; Lincoln v. Hapgood, 11 > 86 SUFFRAGE AND ELECTIONS. “off and on,” had either lost his old residence or gained a new one. Quoting cases, the court say: ‘It would seem to be well settled that a ‘residence’ may be estab- lished with the absence of any intention of removal, or that, so far as intention is a necessary element of a ‘resi- dence,’ it will be conclusively inferred from an actual presence accompanied with such circumstances as usually surround a home. Another principle, which may be considered as well settled in this state, is that a residence once established may be abandoned or lost without having acquired another. (Exeter v. Brighton, 15 Maine, 58; Jefferson v. Washington, 19 Maine, 293.) In regard to ‘domicile,’ a word not used in the pauper law, it is dif- ferent. This cannot be lost without gaining another. Id, 352; Harvard College v. Gore, 5 Pick., 370; Sears v. Boston, 1 Mete., 250; Cadwallader v. Howell, 3 Harrison’s N. J. Rep., 188; Wilton v. Falworth, 3 Shepley, 479; 1 Metce., 242.) “From the various definitions of the terms residence, inhabitancy and domicile, and the decisions in regard to them, I think we can deduce the proposition that the terms legal residence, or inhabitancy, and domicile mean the same thing. By legal residence, I mean the place of a man’s fixed habitation; where his political, such as the right of the elective franchise, are to be exercised, and where he is liable to taxation. A person leaving such place of fixed habitation, or abode temporarily, as for a par- ticular purpose, either for business, pleasure or health, with the intent of returning to the same, as soon as such purpose is accomplished, does not lose his residence or habitancy in such place of abode. The actual resi- dence is not always the legal residence or inhabitancy of a man. A foreign minister actually resides, and is personally present, at the court at whick he is accredited, but his legal residence or inhabitancy, and domicile, are in his own country, his residence at the foreign court only a temporary residence. He is there for a particular purpose. So soldiers and seamen may be legal residents and inhabitants at a place, although they may have been absent therefrom for years. They don’t lose their residence or domi- cile by following their profession.” SuFrFrraGE RESIDENCE. 87 The principle upon which this distinction is rested is that every person owes some duties to society, has some obligation to perform to the government under which he lives, and from which he receives protection—duties and obligations not to be laid aside at will, but resting upon and attaching to the person from the earliest to the latest moment of his life. His domicile is the place where those duties are defined and are to be performed. It is imposed upon him by the law at his birth, and though, when arriving at legal age, he may choose the place where it shall be, it is not at his option whether he will be without auy. The principle applied to a ‘residence’ or ‘home’ is the reverse of this. It is entirely optional —purely a matter of choice, not only as to the place where one’s residence shall be, but whether he shall have any. If, then, a residence once established may cease to continue, under what circumstances,” the court in- quires, “are we to consider it at an end, or when is it abandoned? The answer is that if a ‘residence,’ being made up of actual presence and intention, or presence without intention, where these are wanting we shall look in vain for the residence.”? In New Hampshire, where the citizen is required to do militia duty in the place of his residence, it was held in the case of Shattuck v. Maynard, 2? New Hampshire, 123, that when a man having a residence in one county, went 1, Referring to Holmes v. Greene, 7 Grav, 299 ; Whitney v. Ashland, 12 Allen, 111; Corinth v. Brady, 51 Maine, 540; Wilbraham v. Ludlow,,. 99 Mass., 587. : 88 SUFFRAGE AND EXeEcrTIons. to another declaring his intention to change his resi- dence, but in a short time after changed his intention and returned to the place he had left, taking his wife and family with him, his legal residence was in the place to which he had returned with the intention to make it such, notwithstanding he had labored for eight months at the place to which he had removed, going home only on Saturday nights. The distinction is drawn in this case between personal and legal residence.! “A man’s domicile,” said the Supreme Court of Con- 1. The statute under which this decision was rendered enacts, ‘That each and every free, able-bodied white male citizen of this state, resident therein, &c., or who may hereafter come to reside in this state, &c, shall severally and respectively be enrolled in the militia by the captain, &c., of the company within whose bounds such citizen shall reside.’ The court said: The word “reside” is used in two senses; the one constructive, technical, legal ; the other denoting the personal actual habitation of in- dividuals. When a person has a fixed abode, where he dwells with his family, there can be no doubt as to the place where he resides. The place of his personal and legal residence are the same. So where a person has no permanent habitation or family, but dwells in different places, as he happens to find employment there can be no doubt as to the place where he resides. He must he considered as residing where he actually and per- sonally resides. But some persons have permanent habitations where their families constantly dwell, yet pass a great portion of their time in other places. Such persons have a legal residence with their families and a personal residence in other places; and the word “reside,” may, with respect to them, be used’ to denote either their personal or their legal resi- dence. The books furnish ample illustrations of this distinction. 1 Dallas, 152; Burnett's case, ditto, 241; Penman v. Wayne, 2 Peters. Ad. Decisions, 442; 2 Robinson, 322; The Harmony; 2 Caine’s Rep., 317; Fitzgeral’s case, 16 Johus, 128; Elbers et al. v. The United Insurance Company, 1 Bin., 351, note; 4 Mass. Rep., 312; Abington v. Boston, 7 ditto, 1; Granby v. Amberst, 11 ditto, 350; Lincoln vy. Hapgood, ditto, 424; Williams v. Whiting et al., 10 ditto, 488; Putnam v. Johnson et al, 1 Strange, 60; 5 D. & E., 664; 2 Bos, & Pul, 229, note; Vattel, B. 1, Cap. 10, Sec. 218, SurrraGe RESIDENCE. 89 necticut in Salem v. Lyme, 29 Conn. Rep., 74, “is his es- tablished, fixed, permanent and legal dwelling place, or place of residence, as distinguished from his temporary, though actual, place of residence ;—his home, as distin- guished from the place or places to which his business or pleasure may temporarily call him.” The same court has, in common with the tribunals of most other states, affirmed the doctrine that a domicile once acquired con- tinues till another is established. (First National Bank v. Balcon, 35 Conn., 358.) This doctrine was carried so far in the case cited, that it was held that when a man left the place of his residence, where he and his wife had their domicile, with no intention of returning, and the wife died before he had settled anywhere else with the intention of remaining, the wife’s domicile at the time of her death was unchanged. In Michigan particular stress is laid upon the inten- tion of the party. Thus says the Supreme Court: “No one will contend that a party loses his residence and rights as an elector because himself and family tempo- rarily reside in some other city, township or ward, even although such temporary residence should extend overa series of years. The intention of the party, coupled with certain other facts, is what governs.”! It would seem from this and other cases,? that the length of absence is 1. Harbaugh v. Cicott, 3 Mich., 241. 2. Salem v. Lyme, 29 Conn., pages 80-1, supra. 90 SUFFRAGE AND ELECTIONS. no criterion as to whether such absence is temporary or permanent.! It has been held that, if a person leaves his place of residence with the intention of making the place to which he removes his fixed residence “if circumstances permit,” such an intention entertained at the time of removal, coupled with actual removal and settlement at the new place, is an abandonment of the original resi- dence. (State v. Groome, 10 Iowa, 309.) The coutt, refer- ring to the party whose residence was in question, said: “When he left for Kansas, he was uncertain in his own mind whether he would return or not; he took his family with him, purchased a claim there, resided upon it, pre- empted it, voted there, and we conclude acquired a resi- dence there. If a person has actually removed to an- other place with an intention of remaining there for an indefinite time, and making it a place of fixed residence or present domicile, it is to be regarded as his domicile, notwithstanding he may entertain a floating intention to return at some future time.” It has also, on the question of intention, been held, in Iowa, that to gain a residence there must be a bona fide intention to make the place such. Remaining merely for the accomplishment of a purpose, with the design of leaving when that object is attained, does not establish residence. (State v. Minnick, 15 Jowa, 123.) This was a case on an indictment charg- ing illegal voting for non-residence. The allegation 1. Plummer v. Brandon, 5 Iredell, 190; Hairsville v. Hairston, 5 C. Missip., 704; 3 Curties, 345. SUFFRAGE RESIDENCE. 91 was that the defendant resided in Des Moines township, but voted in Fairview. It appeared that he had resided in Des Moines, but had gone to Fairview to work, and while there voted. The judge on the trial charged the jury that “A man may actually stay and sojourn in a township for six months, and still not be a resident of such township. It is the intention of the party that is the rule. -It must be a residence in good faith.” The indictment was sustained. , In New Jersey the question of residence-was considered in the case of Cadwallader v. Howell et al., and it was there decided that the residence required by the laws of that state to entitle a person to vote at an election, means his fixed domicile, or permanent home; and is not changed or altered by his occasional absence, with or without his family, if it be animo revertendi. It was also held in the same case that a residence in law once obtained, continues without intermission until a new one is gained. The plaintiff in this case lived during the summer months in the mansion house in New Jersey, where he was born, and which had been in the posses- sion and occupation of himself, his father and his grand- father, for more than a hundred years. It was his custom to take his family to Philadelphia or New York every winter and passsome months there. This he did during the winter of 1837-38, and offering to vote in November, 1838, in the township where his mansion was situated, his vote was, on challenge, rejected on the ground that he had not resided in the state a year immediately pre- 92 SUFFRAGE AND ELECTIONS. ceding the election. The court said that to reject a vote on that ground was to confound the idea of a legal resi- dence with a mere temporary stay.) In the case of Lewis v. Botkin, 4 West Virginia Rep., §88, the Court of Appeals drew a distinction between dwelling-house and residence and “usual place of abode,” holding that the latter is not necessarily at the place of his residence or dwelling. Whether it is or not 1. “The word residence (fixed residence I mean),” says Dayton, J., “is generally used as tantamount to, domicile; though I am not prepared to say, whether they are or are not in all respects, convertible terms. * * I do not mean to say that the elective franchise of the citizen may not be suspended, * * * * but I mean to say, that a residence in law once obtained, continues without intermission until a new one is gained. It is not pretended that the plaintiff ever acquired a legal residence in Phila- delphia; on the contrary, he has always disclaimed it, not only in con- versation with his friends, but before the judge of election upen his oath. He has never exercised, or claimed to exercise, any rights, civil or political, except as acitizen of New Jersey. * * * * That he passed the winter preceding the election in Philadelphia, was wholly unimportant, it did not change his residence. * * * * The place where a man is com- morant, may perhaps be properly considered as prima facie, the place of his legal residence; this presumption, however, may be easily overcome by proof of facts to the contrary. If a person leave his original residence animo non revertendi, and adopt another (for a space of time, however brief, if it be done) animo manendi, his first residence is lost. But if in leaving his original residence, he does 89 animo revertendi, such original residence continues in law notwithstanding the temporary absence of himself and family. * * * * Tt is all left to depend upon the same general principle, that a man’s legal residence is not changed when he leaves it for temporary purposes and transient objects, meaning to return when those purposes are answered and objects attained. It is for this reason, that the students of our colleges, the inmates of our law schools and medical universities, and hundreds of others who are scattered on land and sea, engaged, for the time being, in the prosecution of some transient object, are’ considered in law, as residing at their original homes, although, in point of fact, they may be living, for the time being, elsewhere.” SUFFRAGE RESIDENCE. 93 is a question of fact. The court said: “Usual place of abode means the place at which the party usually stays at the time. A man might have a dwelling place and not stay or dwell in it.” The residence of a man’s family though generally is not necessarily always the place of his legal residence. Whether it is or not must depend upon circumstances. It is said in Pearce v. The State, 1 Sneed Tenn. Rep., 62, that “in the legal idea of a domicile, home, residence and business are material elements. * * * The place of residence of a man’s family, though not always his domi- cile, is nevertheless a fact from which the domicile may be presumed. But this is a presumption that may be removed by proof to the contrary.” In the case of Beavers v. Smith, 11 Alabama, 20, the question of the effect of residence abroad upon the politi- cal status of a citizen was decided. It was there held that a citizen does not lose his political rights by resi- dence in a foreign country. The case of Plummer v. Brandon, 5 Iredell N. C. Eq., 190, was directly on the point whether one who goes to a place with the idea of remaining if pleased, loses his residence, and it was held that he does not.2, The inten- 1, Gadsden y. Johnson, 1 Nott & McCord’s Rep., 89. 2. The court, referring to a witness, said: He states that when Dr. ‘Scott started for Tennessee, he declared he was going to Tennessee to look about, and, if pleased with the country, intended to stay or make a permanent location there. His family continued to live on and cultivate the same place, where Dr. Scott had lived for many years, and continued there until the fall of 1889. * * * Here, then, we have the declaration of Dr. Scott that his going to Tennessee was not a removal there, but an explora- 94 SUFFRAGE AND ELECTIONS. ‘tion as to the new place being coupled with a contin- gency which contemplates a possible return to the old, prevents its operating as an abandonment of the latter. In the case of The State ex. rel. Schuet v. Murray, 28 Wis- consin, 96, the question was considered whether the fact that a candidate is ineligible by reason of insufficient residence at the time he is voted for and elected, pre- cludes his taking the office if, before the term commences, the ineligibility is removed: The court held not, saying that persons who have not resided in the state the necessary time when voted for, but who are qualified in all other respects, may hold the office, if, before the time for entering upon it arrives, they complete the necessary time of residence. “The disqualifications,” said the court, “relate to the holding of the office, and not to the election thereto.”? One of the latest cases decided is that of Hindman’s tory trip, preparatory to a removal if he liked the country, * * * The acquisition of a new domicile does not depend simply upon the residence of the party; the fact of residence must be accompanied by an intention of permanently residing in the new domicile and of abandoning the for- mer; in other words, the change of domicile must be made manifest, animo et facto, by the fact of residence and the intention to abandon. De Bonne- val v. De Bonneval, 6 Eng. E. Rep. 502; 1 Curties, 856; Craigie v. Lewin, 7 Eng. E. Rep., 460; 3 Curties, 485. Sir Herebord Jermer Trest in the latter case says the result of all the cases is that there must be the animus et factum, and that the principle is that a domicile, once acquired, remains until another is acquired, or the first abandoned ; and that the length of residence is not important, provided the animus be there; if a° person goes from one country to another with the intention of remaining that is sufficient, and whatever time he may have lived there is not enough unless there be an intention of remaining, 1, See Post. SUFFRAGE RESIDENCE. 95 Appeal, (85 Penn. State Rep., 4 Norris, 466,) in which the law of domicile was stated to be that in this country a person’s domicile is that place in which he has fixed his habitation, without any present intention of removing therefrom ; that a mere intention to remove permanently without an actual removal works no change of domicile; nor does a mere removal from the state without an in- tention to reside elsewhere. This statement of the law aptly illustrates the principle that the act and intention must concur; and the case—decided in 1877—reaffirms all previous decisions on the subject of domicile and residence. The point was also distinctly and directly affirmed in Ballenger v. Lantier, 15 Kansas, 608, that to effect a change of residence, there must exist both the intention to change and the fact of removal. “ Neither is sufficient alone.”’?! Persons in the Federal Service. The Supreme Court of California, was, in the cases of Devlin v. Anderson, 38 Cal. Rep.,and The People v. Holden, 28 Cal. Rep., called upon to construe the provision of the constitution touching the status of persons in the service of the United States. It was held, that while the mere fact of being stationed in the state for the prescribed time, does not, of itself, make a residence in the sense of the constitution, that it does not preclude one from acquiring a residence, if, independently of his service, he 1. 2 Swan, (Tenn.) Rep., 420; State v. Hallett, 8 Alabama, 159. 96 SUFFRAGE AND ELEcTIons. . intends to make the state his residence. The same doctrine has been held in Oregon, in the cases of Darragh v. Bird, 8 Oregon, 229, and Wood v. Fitzgerald, 668. In this latter case the court said: “We cannot see the legal force or propriety of placing such a construction upon that section as would preclude an employee of the United States or state government, from making any change in his domicile that he may desire to make. Though such an one cannot gain or lose a residence by reason of his presence or absence when employed in the service, yet he can establish his domicile and gain a residence at such a point as he may see fit, by taking the proper and appropriate steps so to do independently of his employment.” ‘In Territory Ceded to the United States. In Ohio the curious and interesting question arose whether the inmates of an asylum established and in- corporated by the United States, for disabled soldiers, and situated on territory ceded by the state to the United States, were residents and voters in the place where the asylum was situate. The act ceding the land to the United States provided a condition, that the civil and criminal process of the state should continue to be exe- cuted in the lands ceded, and in the buildings thereon, and that the inmates should continue to vote. It was held that the latter provision was unconstitutional, as the state constitution prescribes residence as a qualifica- SuFFRAGE RESIDENCE. 97 tion for suffrage, and that when citizens of the state became inmates of an asylum in territory outside the jurisdiction of the state, they were no longer residents of the state, and it was not, therefore, competent for the assembly to enact that they should continue to vote.! 1. Sink v. Reese, 19 Ohio State Rep., 306. The court say: “ Within the boundaries of one of the election precincts of Montgomery county is situated an institution known in law and in fact as ‘The National Asylum for Disabled Volunteer Soldiers” * * * Here then, is an institution invested with corporate powers, established by the government of the United States for its own purposes—the relief and support of its disabled volunteer soldiers. It is placed under the sole control and management of a board, constituted, appointed and to be appointed perpetually by the government of the United States. * * * The act of the state legisla- ture, consenting to the establishment of the asylum within her borders, * * % fixes the exclusive jurisdiction of the general government over this institution, its lands and its inmates, ‘in all cases whatsoever,’ except as to the execution of process issuing under state authority. “This leads us to consider what is the legal status of persons who be- come residents upon the grounds and within. the limits of the institution thus within the exclusive jurisdiction of the United States; and how.does it affect their claim to exercise the elective franchise in Ohio, under its constitution and laws. * * * By becoming a resident inmate of the asylum, a person, though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to contribute to her revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdic- tion of another power, as foreign to Ohio as is the state of Indiana or Kentucky, or the District of Columbia. The constitution of Ohio requires that electors shall be residents of the state, etc. * * * We are un- animously of the opinion that such is the Jaw, and with it we have no quarrel, for there is soniething in itself unreasonable that men should be permitted to participate in the government of a community, and in the imposition of charges upon it, in whose interests they have no stake and from whose burdens and obligations they are exempt. * * * As for the concluding proviso of the first section of the Ohio act of cession, * it is not constitutionally competent for the general assembly to confer the elective franchise upon persons whose legal status is fixed as non-residents.of this state.” 7 98 SUFFRAGE AND ELECTIONS. . In Territory Under Temporary Federal Jurisdiction. . In Ohio, in the case of Renner v. Bennett, (21 Ohio St, 461,) the question arose whether the fact that, within the period next preceding the election, and for a part of it, a portion of the territory of the state had been under federal jurisdiction, had the effect of making persons living within that territory non-residents for the time being, and depriving them of the right to vote. It was held that it did not; that a constitutional requirement of residence for a prescribed time within the state, county, or township, as a qualification for voters, is satisfied if, at the time of the election, the voter has a residence within the proper political division, and has resided in the same place for the prescribed length of time, although there may have been a temporary change of jurisdiction; as when, during a part of the time prescribed, the United States has had complete jurisdiction over the place, which has been ceded back to the state. The Residence of College Students. On the question of the right of students to vote at the places where their studies are pursued—a question that has been discussed in some of the states where colleges and seminaries are established—a very interesting and lucid opinion was furnished, at the request of the Massa- chusetts legislature, by the Supreme Court of that state, (5 Metcalf’s Rep., 687,) holding that the student may, if SUFFRAGE RESIDENCE. . 99 he be self-supporting and have no domicile elsewhere, acquire the right to vote at the place where he pursues his studies, after he has resided there the necessary time, and this without regard to the place whence he derives his means of support; but if he have parents at the place of his original residence, by whom he is supported, his going to a public institution and residing there merely for the purpose of an education, without an intention of remaining, would not. change his domicile or give him the right to vote.! 1. The question submitted to the court was: “Is a residence at a,public institution, in any town in this commonwealth, for the sole purpose of ob- taining an education, a residence within the meaning of the constitution, which gives a person, who has his means of support from another place, * * * a right to vote?’ The court say that neither of the circum- stances stated in the question constitutes a test, nor are they very decisive, and proceed: “On the contrary, a person may, in our opinion, reside at a public institution for the sole purpose of obtaining an education, and may have his means of support from another place, and yet he will, or will not, have a right to vote in the town where such institution is established, ac- cording to circumstances not stated in the case on which the question is proposed.” Referring to the words “inhabitant” and “one who has re- sided,” the court say they are “equivalent to the familiar term domicile.” “The question, therefore, whether one residing at a place where there is a public literary institution, for the purpose of education, one who is in other respects qualified by the constitution to vote, has a right to vote there, will depend on the question whether he has a domieile there. His residence will not give him a right to vote there if he has a domicile elsewhere ; nor will his connection with a public institution, solely for the purposes of education, preclude him from so voting, being otherwise qualified, if his domicile is there. The question what place is any person’s domicile, or place of abode, is a question of fact. It is in most cases easily determined by a few decisive facts; but cases may be readily conceived where the cir- cumstances tending to fix the domicile are so nearly balanced that a slight circumstance will turn the scale. In some cases, where the facts show a more or less frequent or continued residence in two places, either of which would be conclusively considered the person’s place of domicile, but for 100 SUFFRAGE AND ELECTIONS. Much more instructive and decisive is the opinion delivered by the Pennsylvania Supreme Court in Fry’s Election Case. At the time that decision was made the the circumstances attending the othe., the intent of the party to consider the one or the other his domicile will determine. One rule is that the fact and intent must concur. Certain maxims on this subject we consider to be well settled, which afford some aid in ascertaining one’s domicile. These are, that every person has a domicile somewhere ; and no person can have more than one domicile at the same time, for one and the same purpose. It follows, from these maxims, that a man retains his domicile of origin till he changes it by acquiring another; and so each successive domicile continues, until changed by acquiring another. And it is equally obvious that the acquisition of a new domicile does, at the same instant, terminate the preceding one. “Yn applying these rules to the proposed question, we take it for granted, that it was intended to apply to a case where the student has his domicile of o1igin at a place other than the town where the institution is situated. In that case, we are of opinion that his going to a public institution and residing there solely for the purpose of education, would not, of itself, give him a right to vote there, because it would not necessarily change the domicile; but in such case his right to vote at that place would depend upon all the circumstances connected with such residence. If he has a father living; if he still remains a member of his father’s family; if he returns to pass his vacations; if he is maintained and supported by his father; these are strong circumstances, repelling the presumption of a change of domicile. So, if he have no father living; if he have a dwelling- house of his own, or real estate, of which he retains the occupation; if he have a mother or other connections, with whom he has before been ac- customed to reside, and to whose family he returns in vacation; if he describes himself of such place, and otherwise manifests his intent to con- tinue his domicile there; these are all circumstances tending to prove that his domicile is not changed. “But, if having a father or mother, they should remove to the place where the college is situated, and he should still remain a member of the family of the parent; or if, having no parent, or being separated from his father’s family, not being maintained or supported by him; or, if he has a family of his own, and removes with them to such town; or, by purchase or lease takes up his permanent abode there, without intending to return to his former domicile; if he depend on his own property, income or industry for his support; these are circumstances, more or less corclusive, to show a SuFFRAGE RESIDENCE. 101 state constitution did not, as the one since adopted does, contain a provision specially declaring that residence at any seminary of learning should not give the right to vote. The decision was therefore based on general legal prin- ciples. The facts were, that several students of Muhl- enberg College voted in the city of Allentown, and the question was whether they had a right to do so. The question turned wholly upon their residence, the students being otherwise duly qualified voters. The case states— “that they claimed that their residence was in said col- lege, where they have lived from one to three years; that they came to Allentown from other counties for no other purpose than to receive a collegiate education, but intended to leave after graduating. “To determine change of domicile, and the acquisition of a domicile in the town where the college is situated. In general, it may be said that an intent to change one’s domicile and place of abode is not so readily presumed from a resi- dence at a public institution for the purpose of education, for a given length of time, as it would be from a like removal from one town to another, and residing there for the ordinary purposes of life; and, therefore, stronger facts and circumstances must concur to establish the proof of change of domicile, in the one case than in the other. But when the proofs of change of domicile, drawn from the various sources already indicated, are such as to overcome the presumption of the continuance of the prior domicile, such preponderance of proof, concurring with an actual resideuce of the student, in the town where the public institution is situated, will be sufficient to establish his domicile, and give him a right to vote in that town. * * If, indeed, a young man, over twenty-one years of age, is still supported by his father or mother, it is a circumstance concurring with other proofs to show that he is still a member of the family of such parent, and so may bear on the question of domicile. But if he is emancipated from his father’s family, and independent in his means of support, it is immaterial from what place his means of support are derived.” 5 Metcalf’s Rep., 587. See also Putnam v. Johnson, 10 Mass., 488; examined in the Allentown election case. Brightly’s Leading Elections, page 471. 102 SUFFRAGE AND [ELECTIONS. the true residence of these students,” the court said, “we must begin by ascertaining the meaning of the term ‘resided’ in the constitution.” After showing that the term is the same as applied to state and district, the court continues: “therefore, when the constitution de- clares that the elector must be a resident of the state for one year, it refers beyond question to the state as his home or domicile, and not as the place of temporary sojourn. This being the character of the state residence, it defines, as we have seen, the district residence, for both are members of the same sentence and are qualified by the same words, “having resided,” without repetition. The elector must, therefore, vote at home, not only in the state, but in the district where his home is. His domi- cile must be there.” The judgment was against the students.+ 1. Fry’s Election Case, 71 Penn. State, 302. By Chief Justice Agnew: “Tn his Conflict of Laws, ¢ 41, Mr. Story says: ‘By the term domicile in its ordinary acceptation, is meant the place where a person lives or has his home. In a strict legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Two things, (he says,) must concur to constitute domicile—tirst, residence; and secondly, the intention of making it the home of the party. There must be the fact and the intent.’ Id, @ 44, See Pfoutz v. Comford, 12 Casey, 422. Says judge Rush: “The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicile” note in 1 Binney, 351. ‘It may be defined, (he says,) to bé a residence at a par- ticular place, accompanied with positive or presumptive proof of continu- ing it in an unlimited time: Id. “Undoubtedly (says Judge King) residence is a question of intention. In cases involving it, the inquiry is quo animo the party either moved to or from the state. And upon the solution of this question depends the fact whether the petitioner has gained or lost a residence. But before this SUFFRAGE RESIDENCE. 103 A case in Illinois, decided under the statute which makes “permanent abode” a necessary qualification to suffrage, throws further light on this question. The question can arise an actual removal must have taken place. A mere inten- tion to remove, not consummated, can neither forfeit the party’s old domicile nor enable him to acquire a new one. Removal out of the state, without an intention permanently to reside elsewhere, will not lose resi- dence, nor will a mere intention to remove permanently, not followed by actual removal, acquire it. Case of James Casey, 1 Ashmead, 126. * * % The stated case expressly declares that the students referred to in it came to Allentown from other counties for no other purpose than to receive a collegiate education, but intended to leave after graduating. It is evident that the college was not their true and permanent home; their stay there was not to be indefinite, as the place of a fixed abode, until future circumstances should induce them to remove. Their purpose was indefinite and temporary, and when accomplished they intended to leave. They retained their original domicile, for the facts stated show that they never lost it. On this point the authorities are in entire accord. ‘The third rule I shall extract (said the Master of the Rolls) is that the original domicile, or as it is called forum originis, or the domicile of origin, is to prevail until the party not only bas acquired another, but has manifested and carried into execution an intention of abandoning his former domicile, and taken another as’ his sole domicile” Sir Richard: Pepper Arden, in Somerville v. Lord Somerville, 5 Vesey, 786. See also 2 Kent’s Com., 481, in note; Story’s Conflict of Laws, 33 46, 47. This language was adopted by Judge Grier in White v. Brown, 1 Wall. Jr., 217, adding: ‘A man cannot be considered « vagabond or person without any domicile, for the domicile of origin is not abandoned until a new one has been inten- tionally and actually acquired. Id., 264. See also Judge King’s re- marks, supra. * * * ‘hese principles enable us now to dispose of the first of the two classes into which the stated case divides these students, viz: ‘Those who support themselves, or are assisted pecuniarily by per- sons other than their parents; are emancipated from their father’s fam- ilies; have left the home of their parents and never intend to return and make it a permanent abode.’ Having, as the case states, come to Allen- town for no other purpose than to receive a collegiate education, and in- tending to leave after graduating, they have not lost their home domicile, and could vote there on returning to it, though they should not re-enter their father’s house. “ Emancipation from their father’s family and independent support, and 104 SUFFRAGE AND ELECTIONS. principle decided in that case was that students at a college who have no home elsewhere, and who have been at the place of their studies the time prescribed, and who, moreover, have no intention, at the time of the election, of removing elsewhere, may be regarded as having a the leaving of the home belonging to their parents, have not forfeited their own domicile. Their father’s house is not necessarily their home, but the place is where it is. Though not in the bosom of that family, the place of their residence is not lost to them until they have voluntarily changed it and found a new home. Upon the terms of the stated case, it cannot be said they have abandoned their original home, and actually obtained another. The second class needs no comment. They are those students ‘who are supported by their parents, visit their parents’ home during vaca- tion, and may or may not return there after graduating.’ It is clear as to both classes the college is not their home. They are not members of the community among whom they sojourn. They have no common interest; do not intend to live with or to cast their lot among them. They have no proper motive to interfere in their local affairs. On no proper principle of a true residence should the student vote to-day, and fasten on the com- munity officers whom the majority do not desire, then graduate to-morrow and be gone. “The great underlying principle of a republic is, that men should be permitted to govern themselves, but not to constrain others. Yet this would be the result of such.a shifting vote, which, like the Parthian arrow, pierces as he who casts it flees. There are vague notions of liberty and personal rights, which often impress the mind, and lead it to incline against what may seem to be a restraint. A man is a man everywhere, and the thought is apt to rise, a freeman should vote anywhere. But the only true, wise and rational liberty, founded on the golden rule of doing as one would be done by, and upon the maxim sie utere tuo ut alienum non laedus, is that which is regulated by laws made for tlie common good. “The rights of all men, the peace of society, and the good government of the state, require that the elector should vote at home, in his proper district where he is known, and among those with whom he has cast his lot, until yielding to circumstances, or to a desire of change, he has chosen voluntarily to abandon his former residence, and actually to gain a new one.” SUFFRAGE RESIDENCE. 105 permanent abode at that place.t It is not necessary that there should be an intention never to remove, or in other words, an intention to remain forever, but there must be a present intention to make the,place a permanent abode beyond the accomplishment of a special object. The doctrine upon which the contested election case of Farley v. Runk was decided by the House of Representa- tives? was directly in conflict with all the authorities. The question in the case was whether the votes of certain Princeton students were legal. The committee reported in favor of counting the votes, because the students had 1. Dale v. Irwin, 78 Illinois, (Vol. LXXVIIL, Freeman), page 181. “The question turns upon what is a permanent abode,” and this must be determined by facts and intention. * * * * Now, what is a ‘‘per- manent abode?” Must it be held to be an abode which the party does not intend to abandon at any future time? This, it seems to us, would be a definition too stringent for a country whose people and characteristics are ever on a change. * * * * It would be safe to say a permanent abode, in the sense of the statute, means nothing more than a domicile, a home, which the party is at liberty to leave, as interest or whim may dictate, but without any present intention to changeit. * * * * * These students were under-graduates of Shurtleff college. * * * * The homes of some of them are in distant states, who have nothing to attach them to the town in which the college is situate. Others, who testify they are entirely free from parental control, and regard Upper Alton as their home, having no other to which to return in case of sickness or domestic affliction, are ungestionably as much entitled to vote as any other resident of the town pursuing his usual avocation. It is pro hac vice, the home of such students—their permanent abode, in the sense of the statute, as clearly so as that of any other resident. As a general fact, however, under-graduates of colleges are no more identified with residents of the town in which they are pursuing their studies, than the merest strangers, and should all the seats of learning in the United States be polled, not more than one student in twenty would be found to possess the proper qualification of a resident of the town.” 2. See 2 Contested Election Cases in Cong. 106 SUFFRAGE AND EZEcTIONs. testified that they had left their homes animo non rever- tendi, disregarding the authorities which hold that there must be coupled with the intention not to return to the old residence the animo manendi, and that the former is not enough without the latter. —In Case v. Clarke, & Mason, U. 8S. C, 70, the ques- tion was whether the residence of the plaintiff was in Rhode Isiand or Massachusetts. Story, J, said: “Tt appears to me very clear that there is no suf- ficient proof that the plaintiff is a citizen of Massa- chusetts. To effect that purpose it should be estab- lished that there was a bona fide change of domicile. I do not say that we can inquire into the motives for the change or the reasons which influence a man to remove from one state to another. Be these motives or reasons what they may, there must still be a bona fide intention of removal, and a real change of domicile. If a person wishing to commence suits in the courts of the United States, instead of the state courts, chooses to remove into another state, and executes such intention bona fide, he may thereby change his citizenship. But his removal must be a real one animo manendi, and not merely osten- sible.””? In the Allentown Election Case, 23 Legal Intelligencer, 229, the opinion rendered at Quarter Sessions, afterwards sustained in the Supreme Court, (Fry’s Election Case, 71 Pa. S., 802, supra,) said that the mere act of residing ina 2. Castor v. Mitchel, 4 Washington’s U.S. C. Rep., 191; Quinby v. Duncan, 4 Harrington (Del.), p. 384. SUFFRAGE RESIDENCE. 107 place for a specific purpose and for a definite time, with no permanent intention of remaining, of making it the seat of property and of incurring a full and unequivocal assumption of municipal duties, does not constitute a residence within the constitutional meaning of the word. The question was discussed very thoroughly with the re- sult already stated.1 In Chase v. Miller, 41 Penna. State Rep., 403, it is said that four of the supreme judges found themselves hold- ing a term of court at Pittsburg, during each presiden- tial election, and although they were there more than ten days [the time prescribed for residence in the voting district] before the holding of the election, it was not 1. The court: Which one of these students who have exercised the privilege of voting can say or does say in his testimony that he came to the Muhlenberg College with the intention of making it his permanent home, his domicile? * * * The mere fact that the elector is willing to swear, and does swear, that he considers the district his home, is not suf- ficient to entitle him to vote, if the facts and circumstances satisfy the elec- tion officers that his permanent home or domicile is elsewhere. * * * Very few, if any, students while residing at the college acquire a new home or change of domicile, and they are, therefore, not entitled to vote. In the early history of our colleges, while the true meaning of the state constitu- tion was fresh in the minds of the framers of that instrument, it was never pretended that the student acquired a residence at the college so as to be- come a qualified elector. * * * In those days, when the purity and freedom of elections prevailed, the parental home or the locality from which the student came was universally accepted as the district in which he was entitled to vote. * * * Students being here for the sole purpose of being educated, and not coming animo manendi, but intending to go elsewhere as soon as graduation takes place, do not fall within the same category with unmarried men who seek employment from point to point as opportunity offers. * * * This ruling imposes no greater hardship upon the student than is visited upon many others engaged in the various pursuits of life at points away from their domiciles. 108 SUFFRAGE AND ELECTIONS. pretended that that place could become their residence so as to entitle them to vote. The fact is also cited, as part of our history and as showing the practice prevail- ing, that members of the cabinet, senators and members of congress, heads of departments and clerks who reside at Washington almost the entire year (and many of them with their families), and are there for an indefinite term of years, return at each annual election to their own states, and at their proper domicile exercise the privilege of electors. The student does not become dis- franchised, but like all others who are engaged in tem- porary pursuits away from home, he is compelled to go to his proper domicile to exercise the right of suftrage.! Expatriation. A case in 31 Barbour’s N. Y. Rep., Ludlam v. Ludlam, draws the distinction between a change of domicile and expatriation. The person, the status of whose children was in question, was a citizen of New York. At the age of eighteen he went to Lima, in Peru, to seek employ- ment, settled and married there, expressing an intention, however, of returning at some indefinite time. After a lapse of fifteen years he returned to New York, bringing his children born abroad with him. The court held that his residence abroad did not amount to expatria- tion; that he continued all the while a citizen of the United States. The doctrine is stated to be that to 1. Maddox, Etc., 32 Indiana, 111. SUFFRAGE RESIDENCE. 109 expatriate is to leave one’s country, renouncing allegiance to it, with the purpose of becoming a citizen of another country and making it a future home. It signifies more than a change, of domicile, and it is inaccurate to say that a man has expatriated himself with the design of changing his residence. By the common law, when a subject or citizen is traveling or sojourning abroad, either on the public business, or on lawful business of his own, with the express or implied sanction of his government, and with the intention of returning, he continues under the protection of the sovereign power, and he retains the privileges and continues under the obligations of his allegiance, and his children, though born in a foreign country, are not born under foreign allegiance, and are an exception to the rule which makes the place of birth the test of citizenship. The universal maxim of the com- mon law being partus sequitur patrem, it is held to be sufficient for the application of the doctrine just stated, that the father is a subject or citizen, lawfully and with- out breach of his allegiance beyond sea, no matter what may be the condition of the mother. The children of citizens and subjects thus sojourning or traveling beyond the seas have been recognized as denizens under English law, as the occasion arose and the question was presented to the courts, and this says the court, “was by develop- ment and application of the doctrines of the common law, and not by mere force of statutes.” Cases might, perhaps, be supposed when the children would be to some extent under both allegiances, or at least might be 110 SUFFRAGE AND ELECTIONS. entitled or bound to elect between the two. But when the parent returns to his native country, which he had never. abjured nor permanently forsaken, bringing the child while still an infant, that country, it is held, cannot be called upon to relinquish his allegiance, or that of his children, on account of any possible conflict with the country of his temporary abode. Inmates of Infirmaries and Paupers. The question whether the inmates of an infirmary are subject to the rule which, within the meaning of most state constitutions, excludes paupers from the right of suffrage, in states whose constitutions contain no such clause, was considered in the case of Sturgeon v. Korte, 34 Ohio State Reports, in which it was decided that such inmate is not under a legal restraint such as to incapac- itate him from adopting the township in which the in- firmary is situated as his place of residence, and that one who does adopt it, having no family elsewhere and _pos- sessing the other qualifications prescribed by law, is entitled to vote in the township in which the infirmary is situated. The other qualifications required by law of course include the necessary time of residence in the township. The facts in this case were that forty of the fifty inmates of an infirmary in Falls township, Mus- kingum county, Ohio, voted for the ‘defendant whose election was eontested, and whase majority depended upon the legality of their votes. Each of the inmates SuFrraGE REsIDENCE. 111 was admitted into the infirmary from another township, and had, at the time, a legal settlement in a township other than that in which the infirmary was. They had, prior to the election, been actually domiciled in the in- firmary for a sufficient length time, and had the other necessary qualifications, to entitle them to vote if they might or could, after becoming inmates of the infirmary, and, while such inmates, change their residence; and they severally did accept the place as their permanent residences. Upon this state of facts the court, before which the case was heard, held that the inmates were entitled to vote. On error, it was held that, while an in- mate of a county infirmary is under a species of restraint and may not exercise that entire freedom of choice en- joyed by one less needy and helpless, nevertheless, in the absence of a constitutional inhibition such as, in some states, forbids paupers voting, the legal capacity of one so situated to change his vote at pleasure cannot be doubted.1_ When persons become so needy and helpless as td make it reasonably certain that the remainder of their days will be spent in an infirmary, it becomes, in the full sense of the term, their habitation or home, and if the inmate so looks upon it, and is a qualified voter, he is, after having been sufficiently long a resident, en- 1. By the court: It is provided hy the constitutions of many of the states that no inmate of an alms house or an asylum shall acquire a resi- dence there while receiving support at the expense of the public. This inhibition evinces an understanding in such states that, without such provision, the particular circumstances would not prevent the inmate from acquiring a new residence at the place where the alms house or asylum was located. 112 SUFFRAGE AND ELECTIONS. titled to vote in the township in which the infirmary is situated. The votes were held to be legal, and the judg- ment was sustained. The contention in the case just referred to was that, in choosing a new residence, there must be, not only an in- tention to make the choice, and complete, unrestricted power to carry out the intention, but that that power must be exercised absolutely free and independent of any other agency. In other words, it was insisted that the voter must, in the matter, act as a free agent; and that when the law—as is the case in Ohio with regard to in- mates of an infirmary—co-operates in determining the habitation of a person, the place thus designated is not adopted of free will, and cannot be regarded as the resi- dence of choice within the meaning of the term. This view was rejected by the court. The right to vote is a constitutional right limited and qualified by the terms of the constitution itself, and if the fact that a man is a pauper, supported at public expense, is not expressly made a disqualifying clause by the constitution; the mere fact that,in consequence of his needy circum- stances, the law fixes the place of abode, without restrain- ing his liberty, but leaving him free to remove if he please, is not such an impairment of the power of choice as to incapacitate him from acquiring a voting resi- dence.? 1. Sturgeon v. Korte, 34 Ohio State Rep. (De Witt), 525. - SUFFRAGE RESIDENCE. 113 Congressional Decisions. _ Itis the purpose of this book to state the decisions of judicial tribunals rather than of legislative bodies. Each of the latter being the judge of the election of its own members, their decisions do not form binding precedents for each other, nor are they regarded with the deference which courts pay to each other’s decisions so as to form arule. But the cases of contested elections in the House of Representatives sometimes referred to as forming exceptions to the doctrines laid down in the preceding pages, really recognize them. A notable case is that of Cessna v. Myers, the report in which dealt with persons described as “ migratory ”—whose labor or occupation takes them frequently from place to place. The con- testant claimed that three classes of persons who voted for the sitting member were non-residents—persons who went into the district for the purpose of working on the railroad, students who went there solely to pursue their studies, and paupers—and that their votes were conse- quently illegal. The report says: “It is true that, as was remarked in the outset, a former residence continues until a new one isgained. But in determining the ques- tion whether a new one has been gained, the fact that everything which constituted the old one—dwelling house, persdmal presence, business relations, intent to re- main—has been abandoned is a most significant fact.” Here, as in other parts of the report, the intent to aban- don the old domicile and make the new place of occupa- 8 1 114 SUFFRAGE AND ELECTIONS. tion the,residence, is recognized, and the conclusion was that “where no other fact appears than that a person, otherwise qualified, came into the election district for the purpose of working on the railroad for an indefinite period, or until it should be completed, and voted at the election, it may or may not be that his residence was in the district.” The reception of the vote by the election officers, and the failure of the contestant, upon whom was the burthen of proof, to show that the intention and the other facts did not exist, was held to warrant the counting of the votes. It is to be observed that the per- sons whose votes were questioned had been in the dis- trict a much longer time than requisite under the state constitution. So that the question was one of intention, and the decision was, in fact that, in that respect, a prima facie case had been made out, which was not negatived. It was decided by the House of Representatives in the case of Baldwin v. Trowbridge, 2 Bartlett, 46, that a law passed by the Michigan legislature, during the war, allowing soldiers from that state to vote while absent, in the place where they happened to be at the time of the election, was valid, so far as members of congress were concerned, notwithstanding the constitution of Michigan provides that the voter shall reside ten days “in the township or ward” in which he votes. The majority of the committee on elections argued that the legislature of a state may fix the place of the election of congressional representatives independently of the state constitution, SUFFRAGE RESIDENCE. 115 and the argument was based on the fourth section of the first article of the United States constitution, which says: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may at any time, by law, make or alter such regulations, except as to the place of chousing senators.” This was construed as making the legislative act regulating the election of representatives, paramount to the state constitution when there is a conflict between them. Although this doctrine was strictly confined in its application to the election of representatives in con- gress, it was strongly combated, and since then several states have amended their constitutions so as to enable voters, otherwise qualified, to vote while absent from the state in the military service. Statutory Provisions. The states all have statutes providing the machinery for the general and local elections, and regulating, in detail, the manner of conducting them and determining the result. In most of these particulars they are sub- stantially alike, but in some of the states rules are pre- scribed for construing the term residence as used in the constitutions. They are in accordance with the princi- ples laid down in the preceding chapter. Thus in Ohio the statute defines residence as the place which one adopts as such with the present intention of ‘ 116 SUFFRAGE AND ELECTIONS. remaining for an indefinite time, and not for some tem- porary object. If he has been absent, it must have been for some temporary purpose, with no intention of chang- ing the residence or remaining away, and with the in- tention of returning. The additional test is provided in this state that the place where the family of a married man resides shall be regarded as his residence. In Kansas the voter, upon being challenged for want of residence, is required to swear to the same facts as constitute a residence in Ohio; if he has been absent, that while away, he regarded Kansas as his home, and did not vote in any other state or territory, and, as to his residence in the town in which he offers to vote, that he went there to make it his “home,” and has been an “actual resident” therein for thirty days.2. The statutes of Kentucky,®? Minnesota,* Nebraska® and Oregan,§ con- tain substantially the same provisions. The language of some of the provisions, is, however, peculiar. Thuy in the Kentucky statute, the ‘ habita- tion” of a person is declared to be his voting residence, and it is provided that either removal to another state with the intention of residing there an indefinite time, or voting there though there be an intention to return, works a forfeiture of residence. The place where a mar- . Revised Statutes of Ohio, Vol. I., page 770, 4 General Statutes of Kansas, 1868, 406. . General Statutes of Kentucky, 1873, 379. . Statutes of Minnesota, 1878, 50. . General Statutes of Nebraska, 1873, 360. . General Statutes of Oregon, 1872, 568. aon Pw wn SUFFRAGE RESIDENCE. 117 ried man’s family resides, unless temporarily, “is gen- erally considered his residence,” and if he transacts business in a place different from that in which his family lives, the latter is his residence. In Nebraska also, the residence is defined by statute to be the place in which the “habitation” of a person is found, and there is a proviso that, in all cases, six months “ consecutive residence .in the state shall be necessary to establish a residence.” Ino Connecticut four months residence is necessary to entitle the party to registration.1 In Georgia the voter may be compeiled to swear that he has lived in the state six months and “claimed it as his home.”? In Delaware the rule for determining the voter’s resi- dence is declared by the statute to be that removal to another state, or from one place to another within the state, with the intention of remaining at the place of removal an indefinite time, as a place of present domi- cile, shall forfeit residence notwithstanding “a floating intention to return at some future period.” In Maine and Massachusetts the statute, without pre- scribing any mode for determining state residence, pro- vides, as to wards in cities, that if the voter removes into a ward, in Maine within thirty days, and in Massachu- 1. Revised Statutes of Connecticut, 1866. 2. Code of Georgia, 1873, 2 1306. 3. Code of Delaware, 1874, page 103. 118 SuFFRAGE AND ELEcTIONS. setts within three months of an election, he shall] vote at that election in the ward from which he removed.? The Michigan statute provides that, upon the voter being challenged, an oath may be administered to him that he is qualified according to the requirements of the constitution of the state, and that in cities and townships no. person shall be registered unless an “actual resident” of the township or ward.? In New Hampshire the statute says, that no person shall be considered as dwelling or having his home in any town -unless he has resided in it for six months, Residence thus acquired shall not be lost by temporary absence, and a person by voting in a town in which he has thus gained a residence, shall be deemed to have selected it as his legal residence, and be disqualified from voting in any other until he has gained a new residence in the way prescribed.® In Texas the residence of a man, if not separated from his wife, is declared to be where she resides. If he is separated, he is subject to the rules governing residence in cases of single men.4 The Vermont statute classifies the voters according to the officers for whom they vote, making the voting resi- dence dependent upon that. Thus it provides that every 1. Revised Statutes of Maine, 1871, 3.16. Acts and Resolves of Massa- chusetts, 1872, page 201, 22. 2. Compiled Laws of Michigan, 1871. 3. General Laws of New Hampshire, 1878, page 98. 4. Revised Statutes of Texas, 1879, page 253, 2 1690. A e Surrrace ReEsipENcE. 119 citizen qualified according to the constitution shall have the right to vote for representatives to the general assem- bly and justices of the peace in the town in which he shall have resided for three months and not elsewhere ; for state officers and presidential electors in any town within the state; for representative to congress in any town within the congressional district in which he re- sides; for county officers in the county and judge of probate in the town in which he resides. The town in which the family of any person resides, if he has one, is deemed his place of residence. Removal from the state and residence in another or in any foreign country dis- qualifies until one year after return and until the person returning takes the oaths of allegiance to the state and the United States and the freeman’s oath.1 An act passed in 1876 provides that any student, in any college or seminary of learning, may adopt the town or city where such college or seminary is located as his place of residence by filing in the clerk’s office of the town a cer- tificate to that effect. The West Virginia statute contains the provision that no person in the employ of an incorporated company shall be deemed a resident of any county or township by reason of being employed therein, and if any person who is a resident of any county or township enters the employment of an incorporated company, his residence, unless he shall make known his intention to change the 1. General Statutes of Vermont, Appendix 1870,. pages 36-7. 120 SUFFRAGE AND ELEcrTIOoNs. same, shall be considered as continuing in said county or township, although he be employed elsewhere.? The statutes on elections of the other states are, in their sections relating to residence, recitals of the suffrage articles of their several constitutions, and the provisions for registration are merely designed, with one or two ex- ceptions in which it has been claimed that the constitu- tional terms have been exceeded, to carry those terms into effect. And on the whole, it will be found, upon a close examination of the statutes defining residence to which we have referred, that the definitions have for their basis the previous adjudications of the courts, and are merely declaratory of the common law, with slight modifications, as thus established. Miscellaneous Cases. It has been held that residence cannot be changed by a person’s involuntary removal. The domicile of a party who is taken away to another state, and there placed in a hospital for the insane, remains unchanged. (8 Conn., 549.) A convict does not change his domicile by being sent to the state’s prison and there confined. (Z/ Conn., 238.) The home or domicile of the father is the domicile of the child; so also of a mother whilst feme sole; but a guardian cannot fix the domicile of his ward; nor can a mother during coverture with her second husband take 2. Acts of West Virginia, 1872-3, page 350, section 25. SUFFRAGE RESIDENCE. 121 a child by her former husband from his native state, where it is domiciled, and carry it into another state, thereby changing 1ts domicile and altering the succession of its estate. Mears v. Sinclair et al., 1 W. Virginia Rep., 185; Harkins v. Arnold, 46 Georgia Rep., 656; but see Darden v. Wyatt, 15 Georgia, 414; 11 Humphrey Tenn., 586 ; 35 Alabama, 521. When the ward has come to years of discretion, the residence of the guardian is not the residence of the ward, unless the ward choose to make it his residence. (Roberts v. Walker, 18 Georgio, 5.) The place of a child’s birth is its domicile, if it were at the time the domicile of its parents, and so continues until he acquires a new domicile. (Taylor v. Jetter, 83 Georgia.) . A minor is incapable of changing his domicile during minority. Nor can a stranger, without the consent of the minor’s father, (if in life,) change it by removing his person. (Lbid.) If an invalid sell his home and remove from his native domicile and travel for his health, and die while traveling, he does not lose the domicile of his birth. (Still v. Corporation of Woodville, 3 H. (Miss.,) 360.) The residence of a seaman, if married, is the place where his family dwells, or, if he has never been mar- ried, the place where his domicile was fixed when he first went to sea as a mariner, his subsequent actions indicating no intention to make or regard any other 122 SUFFRAGE AND ELKcTIONS. ca place as his residence. (Desesbats, &e., 1 Binney’s (Pa.) Rep., 349; Inhabitants of Abington, Etc., 22 Pick., 170, 177; Ex parte Pasqualt, 1 Cranch C. Ct, 243; Matter of Scott, 1 Daly N. Y., 534.) Cuapter V. THE CONDUCT OF ELECTIONS. Official Irregularities. It has been very generally held that a mere uninten- tional irregularity in holding an election,! where no fraud is committed or made possible,? or right infringed, affecting the result, does not invalidate the election. But if it appears that the irregularity was such that the result was rendered by it different from what it might otherwise have been, or that it was wilful, the poll will be set aside. The examples are quite numerous, and some of the cases show that the disposition of the courts is to go very far in giving effect to the popular vote in preference to invalidating it for mere informalities. Thus, in regard to the time of opening and closing the polls, it is held that the failure to do either at the precise time prescribed, is not a sufficient ground, in itself, for 1, Barnes v. Board of Supervisors, 51 Miss., 305; Gilleland v. Schuyler, 9 Kansas, 569. 2. Dale v. Irwin, 78 Illinois, 170. 3. Whipley v. McKune, 12 Cal., 352. 124 SUFFRAGE AND ELECTIONS. " e setting aside an election.1 But there are cases holding that where the polls are closed within the time prescribed by law, and before the expiration of that time votes are offered and rejected, the proceedings are invalid.? Of course, the day fixed by law cannot be changed even by consent of all the voters. A+few moments delay in opening the polls is not material, but a delay of hours may render an election void, and will certainly have that effect if it be shown that anyone was injuriously affected by it.4 ‘ So it has been held that where a certain place has been designated by the proper authorities for the hold- ing of an election, and it is found necessary on the day of election to hold it at another place, this circumstance does not, in the absence of fraud, or improper motive, or complaint that the change had deprived anyone of his vote, invalidate the election. But the rernoval must be from necessity and not to an unreasonable distance. The Supreme Court of Pennsylvania has decided that to remove the place of election three miles from that fixed by law, or fronfa village to a place across a considerable 1. Cleland v. Porter, 74 Ill., 76. Held that merely closing the polls an hour before the legal time does not invalidate the election, unless it be shown that voters were deprived of their right to vote. 2, State v. Wollem, 37 Iowa, 131; Wood v. Fitzgerald, 3 Oregon, 568. 8. McCrary on Elections, sec. 114. 4, Ibid; quoting Chadwick v. Melvin, Brightly’s Election Cases, 251; 68 Pa.-State, 333; Juker v. Commonwealth, 20 Pa. State R., 484; Dickey v. Hurburt, 5 Cal., 348; People v. Murray, 15 Cal., 321; Knowles v. Yates, 31 Cal., 82. 5. Dale v. Irwin, 78 Jll., 170, supra. Tue Conpuct OF ELECTIONS. 125 stream a half mile away, without some controlling cir- cumstance, must, in the absence of authority, invalidate an election. “A fixed place,” said Chief Justice Thom- son, “it seems to me is as absolutely requisite, according to the election laws, as is the time of voting. The hold- ing of elections at the places fixed by law is not directory ; it is mandatory and cannot be omitted without error. I will not say that, in the case of the destruction of a designated building on the eve of an election, the elec- tion might not be held on the same or contiguous ground as a matter of necessity—necessitas non hahet legem. But then the necessity must be absolute, discarding all mere ideas of convenience.” The case of Gilleland v. Schuyler, is to the effect that omission or neglect to observe some merely directory provision of the statute does not vitiate an election. So irregularities in the manner of taking the registry are not sufficient for excluding the ballots of those whose names are on the registry list.2. In short, the broad principle -has been laid down that courts will not regard an elec- tion as void unless clearly illegal; they will rather give effect to it if possible.? 1. Chadmtnk v. Melvin, supra.; Miller v. English, 1 Zab. N. J., 317; Commonwealth vy. Commissioners, 5 Rawle, 75; Foster v. Scarff, 15 Ohio State, 535. 2. State v. Baker, 38 Wisconsin, 71. In this case it was held that ir- regularities in the taking of the registry cannot affect the right of those whose names are registered to vote. Voters, therefore, whose names ‘are on a registry de facto, used by the inspectors of an election as official and valid, need not enquire whether such register was made in the manner prescribed by law. 3. State v. Board of Freeholders, 35 N. J. Law Rep., 269. 126 SUFFRAGE AND ELECTIONS. In pursuance of this doctrine, the New York courts have decided that neither the failure of the election offi- cers to qualify before entering upon their duties, nor the actual incapacity of one of them to serve, in consequence of some disqualification notwithstanding which he acts, renders the election void. Thus it has been held in cer- tain cases that the mere failure of officers conducting an election to be sworn does not affect the validity of an election where it does not appear that such failure has affected the result, and, in case of a contest, under such circumstances, the contestant must show that there were irregularities and that they affected the result. In Whipley v. McKune, 12 Cal., 352, the facts were that in the first district of Sacramento City, where 309 votes were polled, neither the inspector, judge nor clerk was sworn as the law required. There was no allegation of fraud, nor that anything happened affecting the result. The court said: “The naked question presented is whether the failure of the officers, conducting an election in a given district, to be sworn, of itself invalidates the entire . election, without reference to its influence on the result. This proposition cannot for a moment be entertained. * * * Therule is well settled that the mere receiving and counting of votes, improperly given, does not inval- idate an election. This has been held in New York, in Massachusetts, Pennsylvania, and many other States. The universal rule is that an act, however erroneous, THE Conpuct oF ELEcTIONS. 127 which does no injury to a party, cannot be the subject of legal complaint on his part.”} It has also been held that a failure of the officer whose duty 1t is to make proclamation of the election does not, in the case of a general election, fixed by law, vitiate the election.? In two cases in Massachusetts it was held that it is no objection to an election that illegal votes were received, or legal votes rejected, unless the majority is thereby changed.? In a New York case, The People v. McManus, where it was shown that one of the members of the board of election was disqualified by reason of being a candidate at that election, but that he, nevertheless, acted as a member of the board, it was decided that, as two could conduct the election, the participation of the third did not invalidate the election.* So in a case where it appeared that no board of regis- tration was appointed according to law, and that the clerk who acted at the election was improperly ap- 1, 31 Cal., 173, Sprague v. Norway; Keller v. Chapman, 34 Cal., 635; Piatt v. The People, 29 Illinois, 54; Dishon v. Smith, 10 Towa, 212; Au- gustine v. Eggleston, 12 Louisiana Ann., 366; Third School Dis. v. Gibbs, 2 Cush. (Mass.), 39; Sudbury v. Stearns, 21 Pick. (Mass.), 148; 10 Min- nesota (Taylor v. Taylor), 107 ; People v. Cook, 8 N. Y. (4 Seld.), 67; Same, 14 Barb. (N. Y.), 259; People v. McManus, 34 Barbour (N. Y.), 620; Car- penter v. Ely, 4 Wis., 420; Hardenburg v. Bank, 2 Green, N. J., 68. 2. Canon v. Macpherson, 15 Ind., 327. 8. Third School Dis., &c., v. Gibbs, 2 Cushing (Mass.), 39; Sudbury v. Stearns, 21 Pick. (Mass.), 148. 4. People v. McManus, 34 Barb. (N. Y.), 629. 128 SUFFRAGE AND ELECTIONS. pointed, the court refused to pronounce the election invalid. That the polls are kept open and votes received after the time fixed by law for closing, does not vitiate the election, unless it is made to appear that the votes cast after the hour changed the result.? -The case of Dishon v. Smith, 10 Iowa, 212, decided that an election will not be invalidated by the omission of some duty by an officer charged with giving notice thereof, when such election has been duly ordered and held. The election was to determine whether a county seat should be removed. The court said that “in mat- ters of such a public nature the observance of each par- ticular is not held a prerequisite to validity.” In another case, in which the question at issue in the election was whether a law providing for the removal of a county seat, should take effect, it was held that, not- withstanding in certain towns the judges and clerks did not take the prescribed oath, or anv oath, and no list of qualified electors was kept as required by law, and in 1. Keller v. Chapman, 34 Cal., 635, 2. Platt, Supervisor, Etc., v. People, Ete., 29 Ml., 54. The rules pre- scribed by law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to pre- vent illegal votes, and to ascertain with certainty the result. Such rules are directory merely—not jurisdictional or imperative. If an irregularity of which complaint is made, is shown to have deprived no legal voter of his right or admitted a disqualified person to vote—if it casts no uncer- tainty on the result, and has not been occasioned by a party seeking a benefit from it, it may be overlooked in a case of this kind, when the only question is, which vote was the greatest, &c. Tae Coxpucr or ELEcTIons. 129 one town one of the judges of election was a candidate, the votes should be canvassed, and it was for the con- testant to show that the errors complained of affected the result or rendered it uncertain. (Taylor v. Taylor, et al, 10 Minn, 107.) The court, remarking that there was no allegation of fraud, said: “If the votes of the citizens are freely and fairly deposited at the time and place designated by law, the intent and design of the election are accomplished. It is the will of the electors:thus ex- pressed that gives the right to the office or determines the question thus submitted, and the failure of the offi- cers to perform a mere ministerial duty in relation to the election cannot invalidate it, if the electors had actual notice and there was no mistake or surprise.” Most of these questions, and several others of a like: nature, are considered at great length, and determined in the case of The People v. Cook, 14 Barb, N. Y. This was an action in the nature of a quo warranto to test the title to the office of treasurer of the state of New York. The canvass was very close, giving one of the candidates but 228 majority on the whole vote of the state, which aggregated over 400,000. The election was contested on a great variety of grounds. Irregularities of different kinds, such as the failure of the inspectors to qualify by oath in some districts, the absence of clerks in others, the counting of ballots without “junior” for the candi- date to whom that addition property belonged, and the keeping the polls open after the time specified in the statute. Some of the objections were of a somewhat 9 130 SuFFRAGE AND ELECTIONS. singular character. It was shown that in one precinct the oath, when taken, was administered on Watt's Psalms and Hymns, and, in another, on Ollendorf’s French Method, instead of the Bible. The court, in an elaborate opinion, held that none of these objections were sufficient to in- validate the election. A distinction was drawn in this case between officials who act under color of office and whose action is acquiesced in by the people, and mere usurpers.!. The principle stated in the text of the deci- 1. The People v. Cook, 14 Barbour, N. Y., 259. The syllabus of the decision on the questions in point is as follows: “If inspectors come into office by color of title, that is sufficient to constitute them officers de facto. And if they are officers de facto, their omission to take the oath prescribed by the statute will not invalidate an election held by them. (Greenleaf v. Low, 4 Denio, 168; Weeks v. Ellis, 2 Barb., S. C., 320; People v. Covert, 1 Hill, 674; People v. Hopson, 1 Denio, 575; Matter of Election, &c., 19 Wendell, 135.) Acts done by those who are officers de facto are good and valid as regards the public and third persons who have an interest in their acts; and their title to the office cannot be enquired into collaterally. This doctrine has been applied to cases where the whole official duty of the officer, in its nature, consists in the performance of a single act. (19 Wend., 141; 12 Madd. Rep., 467; Plumer v. Brisco, 11 Ad. & Ellis, 54; 63 Eng. Com. Law Rep., 53.) But the mere claim to be a public officer, and the performance of a single act, will not, it seems, constitute an indi- vidual an officer de facto. (People v. White, 24 Wend., 520, 526.) There - must be some color of an election or appointment, or such an exer- cise of the office, and an acquiesence on the part of the public, as would afford a reasonable presumption of at least a colorable election or appoint- ment. (Wilcox v. Smith, 5 Wend., 234.) It is a general rule, in relation to public officers, that they may establish their official character by proving that they are generally reported to be, and have acted as such officers, without producing their commission or other evidence of their appointment. * * * Statutes directing the mode of proceedings by public officers are directory, and a strict compliance with their provisions is not essential to the validity of the proceedings, unless it be so declared in the statute. Within this principle, where a statute directs a public officer to do a thing within a certain time, without any negative words restraining him from THe Conpuct or Etecrioys. 131 sion is that the legislature, in these enactments for the regulation of elections, intend to impose upon the offi- cers conducting the election a faithful performance of doing it afterwards, the naming of the time will be regarded as directory merely, and not as a limitation of his authority. (Holland v. Osgood, 8 Vermont 280; Corliss v. Corliss, Id., 290; Pond v. Negus, 3 Mass., 230; People v. Allen, 6 Wendell, 486; Ex parte Heath & Roome, 3 Hill, 43; People v. Holley, 12 Wend , 481; Mohawk & Hudson R. R. Co., 19 Wend., 143.) This rule has been very steadfastly adhered to, by the courts, in all cases where certain acts are directed to be done, by public officers, within a stated time, and in a particular manner, when those acts are of a public character and concern the public interests, or when the rights of third persons are concerned. The rule should be applied to inspectors of elections and to omissions by them, to comply with the requirements of a statute, occuring through ignorance or inadvertence. The fact that inspec- tors of elections, and the clerks, are sworn, not upon a Bible, but upon a book of different description, will not invalidate the election. Nor will the fact that the inspectors proceeded with the election, for a short time, with only oue clerk, render the election void, in the absence of any evidence of fraud; nor that a person who was not a member of the board, or a clerk, sat by the table and kept a list of voters, and copied some from the roll list; nor that while two of the inspectors were gone to their breakfast, the remaining inspector appointed another person as inspector and adminis- tered to him the official oath; the two proceeding to act as inspectors, during the absence of the others; * * * nor that the polls were held open some ten or fifteen minutes after sundown, and that a few votes were received after that time. * * * The fact that a board of canvassers proceed for a time, in receiving votes, without clerks, one of the inspectors acting as such in consequence of their inability to procure suitable clerks, will not invalidate the election. Nor will the fact that, during a part of the time, there were four inspectors acting at the polls, and that the returns were signed by four, although an irregularity, affect the election. (7 Wendell, 264; 1 John, 500) * * * The fact that voters, challenged at an election, are, by mistake, sworn upon a book other than the Bible, both they and the inspectors supposing it to be a Bible, will not render the election invalid. (Whart. Am. Crim. Law, 185; 16 Pick., 156; Ros- coe’s Crim. Ev. Ed., 1846; 6 Carrington & Payne, 571; Cowen & Hill’s notes, 705, page 494.) The most that can be claimed in such case is that the illegal vote should be rejected. (3 Hill, 42; 7 Cowen, 153, 5 Denio, 409. When the poll lists disagree with each other, and the inspectors 132 SUFFRAGE AND ELECTIONS. duty, as well,to secure the public interests as the rights of electors; that they cannot be presumed to intend that an omission to comply with all the particulars, through the ignorance or inadvertence of the officials, should have the effect of depriving a whole district of its suffrage; that this would be punishing the innocent for the sins of the guilty ;! and “that to hold that the omis- | sions of these officers, through negligence, mistake or other inadvertence, to comply with all these directions of the statute, should have the effect to disfranchise the electors, would be unjust in the extreme, and indeed sub- versive of the fundamental principles of our govern- ment.””? It appears from these authorities that not only must the objection to an election be material and go to the actual merit of the case, but that in contested cases, where it is sought to set the election aside, the onus of proving the circumstance relied upon to that end is upon the contestant.® The rule laid down in People v. Cook was affirmed in People v. Pease, 30 Barbour, 88, again in a later case,* draw out enough votes to reduce the ballot to the lowest poll list, this, , although an irregularity, will not invalidate the election. The omissions of officers conducting elections, through negligence, mistake, or inadver- tence, to comply with all the directions of the statute, ought not to be allowed to disfranchise the electors. 1. Id., page 293. 2. Id., page 311. 3. Keller v. Chapman, 34 Cal., 685. “The contestant is not permitted to take judgment by default. He must, therefore, prove the allegation of his statement.” Taylor v. Taylor et a]., 10 Minnesota, 107, supra. 4, 27 New York Reports, 45. THe Conpuct or ELEcTuIons, 133 and finally by the New York Court of Appeals,! which also held that the receipt of the ballots of voters whose names were on the registry was right, although the board by which the names were registered was not regu- larly organized. It has also been decided in New York that the fact that illegal votes are polled does not vitiate the election unless such votes change the result.? There are cases, however, in which certain irregulari- ties shown to have occurred in the conduct of the elec- tion, were held to invalidate it. Thus in one of the wards of Philadelphia a disorder having arisen at a ward elec- tion, the constable of the ward and the persons alleging themselves to have been elected judges, adjourned the election from the usual place designated to a neighbor- ing place, where the voting was continued, and one set of candidates received the highest number of votes, and were returned by the constable as elected. The electors who remained at the usual place of election, appointed judges and held an election, without calling upon those designated by the act of assembly as the persons to hold the election in the absence of the regular judges; and the candidates here elected were so returned to the com- missioners. It was held by the Supreme Court that both elections were illegal and void.? In another case in which the election was to fill a supposed vacancy, it was held that the court empowered by law to’ try 1. 62 N. Y. Court of Appeals, page 193. 2. People v. Thacher, 55 N. Y., 525. 3. Commonwealth ex. rel. Leslie y. Commissioners, 5 Rawle (Pa.), 45. 134 SUFFRAGE AND ELECTIONS. the question and adjudge the vacancy, not having done so before the election was held, the election was irregular and void. This decision went to the right of holding the election, rather than to any irregularity in conduct- ing it.? ‘ Under what circumstances a failure to comply with the directions. of the law in the conduct of an election, will justify the rejection of the poll, the contested election cases in 1867, in Philadelphia, serve to illustrate. The gist of the decisions in those cases is, that, while unin- tentional omissions or a failure through inadvertence to observe all the directions of a statute, will not defeat an election, any such omission or failure wilfully done, or done in violation of any right or in a way which makes fraud possible, will be cause for setting aside the elec- tion.? The authorities are numerous, aid in accord, upon the 1. Commonwealth ex. rel. Ross v. Baxter, 35 Penna. State Reports (II Casey), 263. By the Court: ‘Even if every voter in the township had voted for another, it would have had no effect. Majorities go for nothing at an irregular election; we cannot regard them even as majorities, for it is the right of orderly citizens to stay away from such elections.” 2. Contested Election Cases of 1867, 1 Brewster’s Pa. Reports, 162. The syllabus of the case on the points in question reads: “An election which is not conducted according to law, either as to substance or form, is an undue election. More clearly an election is undue in the management of which the positive and material requirements of the law are wilfully and knowingly disregarded and disobeyed. Honest mistake, or mere irregu- larities will not suffice to set aside an election, but this principle does not give a general license to election officers to set the law at defiance.” Se- also the text of the decision (page 174) holding that the continuous omise sion of what the law enjoins, and commission of what it forbids, is strong proof of a fraudulent purpose. THe Conpuct oF ELEctIons. 1385 point that, if the irregularity is such that the errors can- not be accurately corrected, or such as to cast the result into doubt and confusion, the poll must be vacated.t In the earlier decisions of contested elections in con- gress the House of Representatives adopted the doctrine that disqualification of election officers, their failure to take the oath required by the statute, holding the elec- tion with less than the prescribed number, and similar irregularities vitiated the election. In a series of cases this rule was followed. Subsequently, however, in view of the numerous and concurrent adjudications by the courts, the House of Representatives abandoned its posi- tion,.and recognized and accepted the doctrine that, in the absence of fraud, the acts of officers de facto of an election are valid as to third parties and the public.® In the contest of Barnes v. Adams, the report of the committee, saying that “the judicial decisions are all to the effect that the acts of officers de facto, so far as they affect third parties or the public, in the absence of fraud, are as valid as those of an officer de jure,” concluded that the question is a settled one in the courts of the country and ought to be adhered to, “not only because of the very great authority by which-it is supported, but for the 1. Littlefield v. Green, Brightley, 493; Mann v. Cassidy, 1 Brewster (Pa.), 60; Weaver v. Green, Ibid, 140; Battery v. Megany, Ibid, 162; Gibbons v. Shepherd, 2 Brewster, 1; Harper v. Greenbank, 1 Ibid., 189 ; Platt v. People, 29 IIl., 72. 2 Jackson v. Wayne, Cl. & H., 47; McFarland v. Culpepper, Id., 221; Easton v. Scott, Id., 272; Howard v. Cooper, 1 Bartlett, 375; Delano vy. Morgan, 2 Bartlett, 168. 3. McCrary on Elections, page 56, 2 76, quoting several cases. 136 SUFFRAGE AND ELECTIONS. further reason, as stated in the outset, that we believe the rule to be most wise and salutary.” The report was unanimously adopted by the House of Representatives.! In determining, however, the effect of the non-observ- ance by the election officers of the provisions of the statute, it is important that regard is always had to the distinction between such provisions as are merely directory, and those that are mandatory. To determine this the lan- guage of the act must be consulted. When it is expressly declared that certain acts are essential to the validity of the election, and that, if omitted, the proceeding shall be void, there is no alternative from setting the election aside? But if the directions have reference to mere detail, the omission of some of which cannot affect the result, they are directory and a different rule pre- vails.? Where a depository for the ballots different from that described by the law has been used, as in the case of Arnold v. Lea, Cl. & H., 601, where it appeared that a gourd was used instead of a ballot box, but was carefully stopped up and kept; where, as in the same case, a ballot box, after the closing of the polls, was put by the sheriff in a trunk in a store, but there was no proof that 1. 2 Bartlett, 760; Cong. Globe, July, 1870, pages 5179-5193. 2. McCrary on Elections, 3 126, page 93. 3. See People v. Schermerhorn, 19 Barbour, N. Y., 540; People v. Bates, 11 Mich., 362. In this latter case a state and city election were held at the same time, and separate boxes provided for the state and city ballots. On counting the ballots, it was found that some were put by the inspectors in the wrong box. The court held that in such a case an elector cannot be deprived of his vote, either by the mistake or fraud of an inspector, if the intention of the voter can be ascertained with reasonable certainty. THE Conpuct or ELECTIONS. 137 it had been tampered with; where, as in the case of the People v. Bates, ballots are put in the wrong box—in all these cases, it was held that, there having been no design or fraud, such mistakes or accidents will be corrected so as to give effect to the will of the majority. To that end rules not made imperative by the statute should be construed and enforced. | Counting Votes. The mode of canvassing votes depends upon the stat- ute of the state, and the decisions in contested cases arising from the disputed action of boards of canvassers have been mainly constructive of the statutes. There are, however, certain general rules governing the pro- cedure in election contests and the disposition of imper- fect and disputed ballots, which, in the absence of posi- tive statutory regulation, prevail. The statement of a voter who claims to have cast a ballot which expresses no meaning of itself cannot be received to give it a meaning, nor can evidence be re- ceived aliwnde to contradict the ballot, but if it be merely ambiguous, any evidence of surrounding circumstances, which may tend to explain the ambiguity and get at the voter’s intent, is admissible. In Cooley on Constitutional Limitations, page 611, the rule on the admissibility of extrinsic eviderice is said to 1, Report in case of McKenzie v. Braxton, 42d Congress; Chapman vy. Ferguson, 1 Bartlett, 267. 138 SUFFRAGE AND ELECTIONS. be that “evidence of such facts as may be called the circumstances surrounding the election, such as who were the candidates brought forward by the nominating conventions; whether other persons of the same name resided in the district from which the officer was to be chosen, and, if so, whether they were eligible or had been named for the office; if the ballot was printed imper- fectly, how it came to be so printed, and the like, is ad- missible for the purpose of showing that an imperfect ballot was meant for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself; or unless the ballot is so de- fective that it fails to show any intention whatever, in which case it is not admissible.” — It was decided in Michigan, in an early case, that a ballot for “J. A. Dyer” could not be counted for James A. Dyer, and no evidence was admissible that it was in- tended for him, but where the abbreviation is one of common use, as “Jas.” for James, the ballot might be counted for the candidate with that name,! and that where votes contain a name idem sonans with that of a candidate, but differently spelled from his, they are to be counted as thrown for that candidate.? Of late years a disposition has been manifested by the Michigan courts to relax, if not change, its earlier decisions, and in the case of People v. Cicotie, 16 Mich., 283, the court expressed 1, People v. Higgins, 3 Michigan, 238; contra, 8 Cow. N. Y., 102. 2. People v. Magworm, 5 Mich., 146. THE Conpuct or ELECTIONS. 139 the opinion that the rule, too long adhered to to be changed by the court, should be changed by legislation. The opposite doctrine in regard to the abbreviation of the christian name of a candidate and the inquiry into the voter’s intention is held in New York! and in Wis- consin.? Where there is a printed and a written name on the ballot, the written name should be counted, in the ab- sence of evidence of a contrary intent. The reason of this is obvious. The ticket or ballot being printed in the first place by some other person than the voter, the fact that he himself writes a name other than that printed shows that he is not satisfied with the ticket as printed, and that his desire and intention are to vote for the person whose name is substituted by his own act. The intention to be inferred from the act is unmistaka- ble, and it is the intention of the voter, when it can be fairly ascertained, that is to prevail. This rule as to giving effect to the voter’s intention is further illustrated by the decisions holding that where the middle initial of a candidate, or such addition as “senior” or “junior” is omitted, the votes shall be counted for the candidate described by the name on the 1. People v. Seaman, 5 Den. (N. Y.), 409; People v. Ferguson, 8 Cowen (N. Y.), 102. In‘these-cases it is held that a ballot cast for a candidate for office, in which only the initial letters of his two christian names are inserted, with the whole of his surname, is a legal ballot for the person designated thereby, provided it be found by verdict that the elector so in- tended. 2. Carpenter v. Ely, 4 Wisconsin R., 420. 8. People v. Saxton, 22 N. Y., 309. 140 SUFFRAGE AND ELECTIONS. ticket who was known to berunning. The doctrine has, as has been seen, been narrowed in some states,! but the general tendency is, when, in contested cases, the ballots are resorted to, to apply them in the way which, by a fair construction of their meaning, as read in the light of surrounding circumstances, will give them the effect the voter designed they should have.? 1, Ante, 3 Michigan, 233. 2. The People v. Cook, 14 Barb., page 299, et seq: The court on the question whether ballots having Benjamin Welch on them should be counted as intended for Benjamin Welch, Jr., said: The addition of junior to a name is mere matter of description and forms no part of the name. Itis generally to distinguish between a father and son who reside at the same place. (Fleet v. Young, 11 Wend., 524; Blake v. Tucker, 12 Vermont Rep., 45; Kincaid v. Howe, 10 Mass. Rep., 203; Leprot v. Brown, 1 Salk., 7; Cobb v. Lucas, 15 Pick., 9; Padgett v. Lawrence, 10 Paige, 177.) The chancellor said in Padgett v. Lawrence, “the word junior forms no part of the name, but is merely descriptive of the person, and is usually adopted to designate the son, when the father bears the same christian name, aswell as family name. When the word junior is left out, it is only presumptive evidence, that the oldest person of the name, and who will answer the other matters of description in the deed, was the grantee intended; and the presumption may be rebutted by showing that the grantor intended to convey to theson.” * * * Thecourtsay in the case of Fleet v. Young, 11 Wend., 524, that “the addition of seniot toa name is mere matter of description and forms no part of the name.” They say further, “the omission thereof furnishes no ground of variance where there is any addition or description, by which the real party intended can be ascertained. * * * It appears that Benjamin Welch, Jr., was the democratic nominee for state treasurer, both in the years 1849 and 1851 nominated at the Syracuse convention in each of those years, and supported at the polls by his political partizans for that office; that there was no other candidate nominated or supported by the democratic party for that office in 1849 or 1851.” After stating other facts, the court continues: “It does not appear that the electors in this district ever heard of or knew, any other Benjamin Welch than the nominee of the Syracuse convention, . and those who distributed the tickets and were active in procuring them to be voted, all swear that they never heard of any other Benjamin Welch. THE Conpuct or ELEcTIons. 141 In the case of the State v. The Judge, &c., 13 Ala., 805, the fact was that the word “ Pence” was written on a ticket cast at an election for sheriff at which Spence was a candidate. On counting out the votes, the managers called in the voter, who declared that he did not-intend to vote in the sheriff’s election, and therefore wrote the word “ Pence” on his ticket. Held that it was properly rejected by the managers. The case of The People ex rel. Aikin, 17 Iil., 167, is one of numerous examples showing how far the courts go in giving effect to the intention of the voter. It was there held that when an election is held for a certain officer, a mistaken designation in the title of that officer on the ballot, will not prevent the counting of the ballot for the * * %* And it appears that he has as often been called Benjamin Welch as Benjamin Welch, Jr., and some of the wiinesses say more so.” Referring to evidence that the father was an obscure farmer, 70 years of age, and had never been a candidate for state treasurer or any other office, the court says: “I think, upon this evidence, the judge at the circuit was right in refusing to send this case to the jury upon this ques- tion. The court may, when the case is clear for either party upon, the evidence, dispose of the case.” Upon the question whether ballots printed Benjamin C. Welch, Jr., should be given to Benjamin Welch, Jr., the court says: “It has been repeatedly held in this court that the middle letter between the christian and surname does not prejudice, even in judi- cial proceedings and in conveyance of estates. It is no part of the name, for the law knows only of one christian name. (Franklin vy. Talmadge, 5 Johns, 84; Rossevelt v. Gardinier, 2 Cowen, 463; Milk v. Christie and Todd, 1 Hill, 102; Bratton v. Seymour, 4 Watts Rep., 329.) * * * * The letter C being no part of the name, it seems to me that these votes * * % ghould be allowed to the candidate Benjamin Welch, Jr. The whole evidence in this case, in regard to these votes, all concurs to identify him as the man for whom they were intended, and nothing could be more unjust and subversive of the fundamental principles of our government, than to deprive this candidate of his election upon such evidence as this.” a 142 SUFFRAGE AND ‘ELECTIONS. person named and running for the office, the name used designating the office within the meaning of tlre law, and it being clear that the voter’s intention was to vote for the person named for the office for which the election is held.? In one of the counties composing the sixth judicial district of Nebraska, in which a judge and a district attorney were to be elected, ballots were cast with the names of the district and the names of the candidates running for the offices printed on them, but without 1. People ex rel. Akin et al. v. Matteson et al., 17 Ill., 167. The elec- tion was held under a statute providing for the election of “police magis- trates.” Some of the ballots read for “police justice,” and it was con- tended they could not be counted. The court held that they could, saying: “This court, in thé case of Welch on habeas corpus, decided that that law was passed under that provision of the constitution which authorized the legislature to provide for the election of justices of the peuce, so that, al- though the law designates them under the general name of magistrates, yet the strict con titutional name of the officer is ‘justice of the peace.’ No rational mind can doubt, upon this simple question of fact, as to the purposes for which these votes were cast. That is so palpable that we shall not attempt its discussion. And yet the law is well settled that the court must be governed by the facts thus found, although there may have been some technical omission or informality in the wording of the vote which is cast. The question is: Does the informality leave the intention of the voter doubtful? In this case we think there is no doubt. The votes cast for the relators designated the office with as much technical pre- cision, as fixed by the constitution, as do those given for those who are said to have been commissioned, and even more so, although the latter follow the statute more closely. In construing this statute in the case above re- ferred to, we sought to get at the intention of the legislature when the words police magistrates were used; and, on that question of fact, we have no doubt but that justices of the peace were intended, and so held that the legislature had a right to pass the law under that clause of the consti- tution. The same rule applies when we ascertain the intention of the voter. When we are satisfied on that point, we are bound to give effect to such intention.” THe Conpuct or ELecrtons. 1438 any designation of the office itself. It was claimed by the persons whose names were on the tickets, that as they were candidates for the offices, and as the ballots were designated for the district, and there were no other candidates for the offices, the ballots sufficiently indicated an intention of the electors to vote for them. The evidence showed that there were no other candidates for the same offices of the same name, and that it was generally understood in the district that they were candidates for the offices. Nevertheless, the court held that the ballots could not be counted for them, the offices not being designated.! What are Lawful Ballots. The election laws of some of the states describe the paper upon which the ballots to be used at an election shall be printed. Ina case in Illinois, in which one of the questions was whether the statutory requirement that ballots should be printed upon white paper, was violated if the paper was tinged with blue and ruled in blue lines, not placed there to distinguish the ballots, the court 1. State, ex rel. Valentine v. Griffey, 5 (Brown) Nebraska Rep., 161. The court says: ‘Upon inspection it is very evident that no office whatever is designated on the face of these ballots, and the proposition will hardly be questioned, that some designation of office stated on the ballot, is one of the essentia! properties to constitute a legal ballot.” ‘Note—The ballot was as follows : “District ticket of the sixth judicial district ‘T. L. Griffey, of Dakota county. George B. Fletcher, of Madison county.” 144 SuFFRAGE AND ELEcTIONS. held that it was not, and that such ballots were legal. (The People ea rel. Brewster, etc., 15 Illinois Rep., 492.) The proof was that the candidate for whom they were cast did not select nor direct the kind of paper upon which they were to be printed, and that it was not adopted with any purpose to distinguish one ballot from another. The court quoted the statute “that no ballotshall be received or counted, unless the same is printed on white paper, without any marks or figures thereon, intended to dis- tinguish one ballot from another,” and said: ‘“ The best and most correct idea I can convey, without attaching a specimen paper ballot, is that Brewster’s friends adopted white paper, and Kilduff’s supporters adopted whiter paper. ~ * * Weare of the opinion that the ballots were upon white paper within the meaning of the statute, and should have been counted; and that the ruled lines were not marks placed upon the ballot for the purpose of distinguishing them, but this paper was accidently used, and the ballots were received without objection; and their rejection afterwards upon that ground would be a fraud upon the voters.” The result of this decision is that the term “white paper,” includes paper with a bluish tinge, and that so far as the lines are concerned, the statute requires that they shall not be intentionally used. A different rule has been followed, however, in states where, the statutes declaring that paper having distin- guishing marks upon it shall not be used for ballots, and that, if it is, the ballots shall be rejected, has been held THE Conpuct oF ELEcTIons. 145 to be mandatory. In Indiana, where the statute pro- vides that the ballots shall “be printed on plain white paper, without any distinguishing marks or other embel- lishments thereon, except the names of the candidates,” and requires the inspectors of election to refuse ballots of any other description, it has been held that a ballot headed with the party designation printed on the same side as the names of the candidates is lawful, these not being distinguishing marks or embellishments within the meaning of the statute, the object of which is to secure secrecy.! The Pennsylvania Supreme Court has held that bal- lots having devices printed upon them are illegal. It appeared in one of the cases in which this was decided that a ticket known as “the German ticket” had an en- graving of an eagle upon it, and that a man who offered any other was identified as an anti-German and became the subject of animosity. This was held to defeat the object of the statute, by destroying the secrecy of the ‘ballot and exposing the voter to the influences from which that secrecy is designed to protect him.? The Supreme Court of California decided a similar question on the ground, not only that secrecy is the ob- ject of the ballot system and that the instrument by which it is carried out should not defeat its own purpose, 1. Druline v. State, 29 Indiana, 308; Napier v. Mayhew, 35 Indiana, 275. 2. Commonwealth v. Wekper, 3 8. & R., 29; Luzerne County Election, 3 Penna. L. J., 155; Clinton County Election, Ib., 160. 10 146 SUFFRAGE AND ELECTIONS. but that it is within the power of the voter to comply with the requirements of the statute by using the kind of ballot it describes, and that if he wilfully fails to com- ‘ply, the ballot should be rejected.! Pairing Off of Voters. A curious question came up in an Illinois case. The ‘voters in a certain district, being about equally divided in opinion on the question to be determined by popular vote at an election, entered into an agreement to refrain from voting and leave the question to be decided by the voters of the remaining districts. In violation of this agreement ten persons voted, and it was claimed that their votes were in fraud of the others-and should not be counted, but the court ruled otherwise.? 1. Kerr v. Rhoades, October Term Supreme Court of California, 1873. 2. Piatt, Supervi-or, etc., v. People ex rel. Am. C. R. R. Co., 29 Illinois Rep., 54. By the court: “ Now as to the matters growing out of the de- murrer to the third branch of the defendants’ return, it is sufficient to sav that the agreement therein set out between certain voters of the township to “pair off” and be absent from the polls, was of no validity, nor were the judges of election required to regard it. The voters, notwithstanding the agreement, had the right to vote, and their votes, when offered, could not be legally rejected. But if the agreement was an illegal one, the rela- tors are not shown to have been a party to it, or under any obligation to regard it, and therefore could not be assailed. Even if they had procured * a portion of those who were a party to the agreement to come to the polls and vote, for the subscription, they had a clear right to do so, the agree- ment having no binding legal obligation.” THE Conpuct oF ELEcTIONS. 147 Election by a Majority Vote. The question arose in Nebraska whether a clause re- quiring a majority of the legal voters of the county or town to determine, was to be construed so as to mean a majority of all the legal voters in the place where the election is held having the right to vote, or a majority of all the legal voters who do actually vote. At an elec- tion for officers the question whether there should be a township organization was also submitted. The number of votes cast was not equal to the whole number of voters, nor did all who voted for officers vote on the special question submitted. Of those who did vote on the ques- tion a majority were in favor of the proposition, but they were less than a majority of the entire vote cast. It was held that, where the constitution refers a question to the popular vote, to be determined by “a majority of the legal voters of the county voting at a general election,” the requirement calls for a majority of those who vote on any ticket, nomination, or question at that election ; not merely a majority of those who vote on the particu- lar question presented.1 The same rule has been adopted 1. The State ex rel. Jones v. Lancaster County, 6 Nebraska Rep. (Brown), 481. By the Court: “ By stipulation of the parties it is admit- ted that 2451 legal voters of the county voted at the general election ; that 952 votes were cast in favor of the township organization, and 601 votes were cast against such organization. It therefore required 1,226 votes to constitute a majority of all the voters who voted at such election. The decision of the * * * question depends on the construction which must be given to section five, etc., which declares that ‘the legislature 148 SUFFRAGE AND ELECTIONS. in Minnesota, where it was sought to invalidate an election held for the removal of a county, because, although a majority of those who voted were for the removal, they did not constitute a majority of all the registered voters in the county. It was held that this was unnecessary: A majority of those voting was suffi- cient. And this may be stated to be the generally accepted ‘doctrine in the absence of an express provision to the contrary. Angell & Ames on Corp., § 499-500 ; Talbot ». Dent, 9 B. Monroe, 526; People v. Warfield, 20 Illinois, . 163 ; People v. Gamer, 47 I Ul., 246; People v. Wiant, 48 Ill., 263 ; Bridgeport v. Railroad, 15 Conn., 475 ; State v. The Mayor, 37 Mo., 272 ; and St. Joseph Twp. v. Rogers, 16 Wallace, 644, are among the authorities sustaining the doctrine that the requirement of a statute, providing for the election of officers or the decision of a question by popular vote, that a “majority of the voters” shall be necessary, is satisfied if a majority of all who take part in the election vote for any one candidate or for the propo- shall provide by general law for township organization, under which any county may organize whenever a majority of the legal voters of such county, voting at any general election, shall so determine’? * * * The language admits of but one meaning, and that is imperative in its opera- tion, and therefore it seems to me quite clear that to adopt the township organization there must be an affirmative vote of a majority of all the legal voters voting at the general election; * * * and therefore, as the affirmative vote on the question submitted was less than a majority of all the legal voters, voting at the general election, the proposition to adopt township organization was defeated.” 1. Taylor v. Taylor, 10 Minn., 107; Bayard v. Klinge, 16 Minn., 249; Everett v. Smith, 22 Minn., 63. THE Conpuct or ELEctTions. 149 sition. Itis not necessary that a majority of all legal voters in the district to which the election refers shall vote affirmatively, if the election be fairly held and all . are afforded the option of voting. Where there is no con- stitutional or statutory provision requiring a majority to elect, a plurality is sufficient. Elections by a Minority. The case of Commonwealth v. Read, 2 Ashmead (Pa.), 261, decided that, if a quorum of a body authorized to elect an officer, be present, a minority of the vote, and even a single vote, cast in a legal manner, will prevail over the majority illegally cast, and if the majority de- cline to vote, the minority who. do vote will elect. The question arose under a law of Pennsylvania authorizing the city and county board to elect a city treasurer by ballot. The board met, a quorum was present, and a majority adopted a motion to vote viva voce. The mino- rity voted in this way under protest, with the exception of one member, who tendered a ballot and then retired. The court held that all the votes cast viva voce were ille- gal and could avail néither of the candidates for whom they were cast, and that if the jury were satisfied that the single legal ballot was received, the person for whom it was cast was-entitled to the office. The number of legal votes cast is not conclusive upon the question of,a 1. Cooley’s Const. Lim., 619, 620; Augustin v. Eggleston, 12 La, An. 366. 150 SUFFRAGE AND ELECTIONS. quorum; that may be shown by other proof. The court referred to the rule in the case of Rez v. Foxcroft, 2 Barr, _1017, decided in 1760, as applicable. There the elective body consisted of twenty-five, and out of this number twenty-one assembled ; nine of these persons voted for Thomas Seagrave as town clerk ; but twelve of them did not vote at all, and eleven protested against any election at that time. The question arising whether Seagrave was or was not elected, it was held by the Court of King’s Bench that he was duly chosen ; that the protesting elec- tors had no way to stop the election, when once entered on, but by voting for some other person than Seagrave, or at least against him, and that whenever electors are present, and do not vote at all, they virtually acquiesce in the election made by those who do. Again, it has been held that if the corporate assembly be duly convened, and the majority vote for an unquali- fied person, after notice that he is not qualified, their votes are thrown away, and the person having the next majority, and not disqualified, is duly elected. (2 Will- cock on Corporations, § 647 ; Claridge v. Evelyn, 5 Barn. & Ald., 81.) “If the majority of those present either refuse to vote, or vote in a manner different from that pre- scribed by law, (as by voting viva voce when the law re- quires them to vote by ballot,) we are of the opinion that a minority, composed even of a single member, is suffi- cient to make an election, and that consequently the presence of a quorum, when such an election is said to have taken place, is not required to be proved by the THE Conpuct or ELECTIONS. 151 legal vote actually given, but may be established by other proof, etc. * * * In all our public elections, those whotneglect or refuse to vote according to law, are bound by the votes of those who do vote, no matter how small a minority those who vote are of the whole con- stituency.” But in this connection see Regina v. Guar- dians of St. Martin’s,& Eng. L. & Eq., 361. When Want of Notice Invalidates. In the case of Bolton v. Good, 12 Vroom, N. J. Rep., the relator asked leave to file an information in the nature of a quo ,warranto, to test the right of Good to hoid an office to which the relator claimed to have been elected. The office contended for was that of city judge, who, under the city charter, was to be chosen every third year by the votes of the people, at the same time as the municipal officers were chosen. It appeared from the statement of the case, that as a question of law, there was some doubt as to whether a vacancy existed in the office at the time the relator claimed to have been elected, but that, as a matter of fact, the notice of election published, as required by the charter, did not name the office of city judge as among those to be voted tor. The people, therefore, had no official information of the fact, and but twenty-nine, out of a poll of over eight hundred votes, were cast for city judge. The election officers refused to return these votes. It was held that this refusal was proper, and that votes cast by a few persons for an office, 152 SUFFRAGE AND ELECTIONS. when the people have no official notification, and there- fore, no presumable knowledge that an office is to be filled, can confer no title to the office. ‘ The same result, under similar circumstances, was reached in Foster v. Scarff, 15 Ohio 8., 582. A vacancy was to be filled, notice of the election was not given, and a few votes only were cast for a single candidate. The court held the election void, and said: “We do not intend to hold, nor are we of opinion, that the notice by proclamation, as prescribed by law is per se, and in all supposable cases, necessary to the validity of an election; if such were the law it would always be in the power of a ministerial officer by his malfeasance to prevent a legal election. We have no doubt, that where an election is ' held in other respects, as prescribed by law and notice in fact is brought home to the great body of the electors, though derived through means other than the proclama-. tion which the law prescribes, such election would be valid. But where, as in this case, there was no notice either by proclamation or in fact, and it is obvious that the great body of electors were misled for want of the official proclamation, its absence becomes such an ir- regularity as prevents an actual choice by the electors, prevents an actual election in the primary sense of the word, and renders invalid any semblance of an election which may have been attempted by a few, and which must operate, if it operate at all, as a surprise and fraud upon the rights of the many.” . The case of People v. Cowles, 18 N. Y., 339, which Tas Conpuct or ELEctions. ~ 158 decided an election to fill a vacancy, held without notice, valid, was so decided on the ground that the election was held pursuant to a requirement of the constitution of the state of which the public should take notice. On this question of filling vacancies there is some conflict between the courts, but the distinction appears to be made between regular elections provided for by law, and elections of which the electors may be presumed to have notice, and special elections, notification of which is essential to a public knowledge and understanding that that they are to take place. Thus in the last named case, a vacancy happened in the office of Supreme Court Judge, after the time pre- scribed by law to give notice that the vacancy would be filled at the approaching general election. The consti- tution provided that such vacancies should be filled “at the next general election.” The court said, that the electors were bound to take notice of a vacancy in that office, without being formally notified, and that those who did so had the right to fill the vacancy. In Indiana the opposite rule is held, Beal v. Ray hav- ing decided, on the same point as that involved in People v. Cowles, that if a vacancy do not happen long enough before an approaching election to give notice the proper length of time, it cannot be filled at that election. The decisions in California are to the same effect.1 In McKune v. Weller this question is very elaborately 1. People v. Porter, 6 Cal., 26; People v. McKune, Weller 11, Cal. 49 ; People v. Martin 12 Cal. 409; People v. Roseborough, 14 Cal., 180. 154 SUFFRAGE AND ELEcTIons. discussed, and, as we have said, the principle laid down that a distinction must be drawn between general and special elections. The law fixing the time, place and manner of holding the former, the electors must take notice of them, and the statutory requirement of notice may be treated as merely directory. But when there is an election to meet some contingency arising, not in the ordinary way,as from death or resignation, and the stat- ‘ute requires that, to fill vacancies, the Governor shall issue his proclamation, the provision is mandatory, and with- out such proclamation, the election is invalid. A decision in Michigan, holding an election to fill a vacancy valid, although the notice of the election made no mention that the vacant office would be filled, was put on the ground that it appeared that the fact was so notorious that there was publicity equivalent to notice.! The courts have, in short, in determining this question of notice, generally squared their decisions according to the rule as stated in Cooley on Constitutional Limitations: ‘Where by the express provisions of the statute, the election is to be held after proclamation or notice, announc- ing the time or the place, or both, and where no such. proclamation has been made, or notice given, the elec- tion is void. But where both the time and the place are prescribed by law, every voter has a right to take notice of the law, and to deposit his vote at the time and place appointed, notwithstanding the officer whose duty it is 1. People v. Hartwell, 12 Mich , 508. THe Conpuct oF ELEcTIoNs. 155 to give notice of the election has failed in that duty.. The right to hold the election in such a case is derived from the law and not from the notice. And this rule will apply to an election to fill a vacancy, if the same occurs long enough before the election to have become: generally notorious, and if it was in fact generally known.” Duties and Powers of Canvassers. The duties and powers of the canvassers of election returns are, in most of the states, defined by their stat- utes regulating elections, and as they are not in all re- spects uniform it is necessary to consult them. In the absence of any provision to the contrary, however, the rule generally is that the duties of boards of canvassers are purely ministerial and confined to the casting up of the returns as received by them, leaving it to another tribunal to decide upon any question of illegality or irregularity that may arise. While it is held that the title to an elective office is derived, not from his certifi- cate nor from his commission, but from his election,1 nevertheless the determination of the legality of votes is a judicial proceeding, which must be had before a court competent to hear and adjudicate.” “To admit,” said the court in State v. Steers, cited hereunder, “a mere min- isterial officer arbitrarily to reject returns, at his mere 1. Attorney General v. Barston, 4 Wis., 567. 2. State v. Steers, 44 Missouri, 223. 156 SUFFRAGE AND ELECTIONS. caprice or pleasure, is to infringe or destroy the rights of parties, without notice or opportunity to be heard; a thing which the law abhors and prohibits. Admit the power and there will be no uniformity ; one canvassing officer will reject for one thing, and another for a differ- ent matter; and no man can tell whether he is legally elected to an office, until he consults the notions of a canvasser. The exercise of such a power is subversive of the rights of the citizen, and canigevous and fatal to the elective franchise.” In the case in which this forcible language was used the board of canvassers had thrown out the vote of a county for alleged informality and irregularity. The court gave a judgment of ouster against the candidate who had received a commission as the result of this ac- tion. The Supreme Court of New York, construing the stat- ute of the state, in The People v. Van Slyck, held the same doctrine, saying that the counting and certifying the vote by the canvassers is a ministerial and not a judicial act. “They have no power to controvert the votes of electors. * * * * The certificate is not conclusive. The court will decide, upon an examination of all the facts.” In the case of Ex-parte Heath and others,? the canvassers refused to certify to the election of the relators because there had been violence at one of the polling districts 1. The People v. Van Slyck, 4 Cowens (N. Y.), 323. 2. Ex-parte Heath and others, 3 Hill (N. Y.), 42. Tue Conpuct oF ELECTIONS. 157 during which the inspectors had been separated from the ballots. The canvassers made return that, by reason of this violence, it was impossible for them to declare what persons were elected. It appeared that the relators had a majority in the other districts, and it was not sug- gested that the result would have been changed had the votes cast in the district in which the violence occurred been counted. The court, deciding the case, said: “In no case we are aware of has it ever been held that the accidental loss of the ballots in a single subdivision of an election district,even though it prevent a return, shall of itself defeat, or, indeed, detract from, the election as it stands on the votes which are properly returned. Once admit the principle that the loss of a part of the votes out of a number which may or should be given at an election, avoids the whole, and it is difficult to con- ceive how a system of government so entirely elective as ours could be carried on. The principle is the same, whether considered in reference to municipal corpora- tions, to county, district or state elections, or even a fed- eral election for president.” In another case in New York the court described the duty of the canvassers as “a simple matter of arithme- tic,” and adjudications to the same effect are to be found in several states.? 1. State v. The Governor, 1 Dutcher (N. J.), 848-9; People v. Hilliard, 29 Illinois, 422; People v. Kilduff, 15 Illinois, 500 ; Bromer v. O’Brien, 2 Indiana, 423; State v. Jones, 19 Indiana, 356 ; Michigan People v. Van Cleve, 1 Michigan, 362; Dishon v. Smith, 10 Iowa, 212; State v. Cavers,’ 22 Iowa, 343; Thomson v. Circuit Judge of Mobile, 9 Ala., 338 ; Mayo v. ‘158 SUFFRAGE AND ELECTIONS. The only question which a board of canvassers, in the absence of statutory provision conferring other’ than ordinary powers, can entertain, is one going to the authenticity of the returns. If on their face they are regular, and made in compliance with law, they cannot be rejected even though the canvassers may be certain that monstrous frauds have been committed.” In The People ex rel. Fuller v. Hilliard, reported in 29 Illinois Rep., 410, the eanvassers rejected the returns from a county, because the affidavits of the judges and clerks were not signed in the poll books accompanying the returns. The court held that such objection was of no force, it being immaterial, so far as the validity of the returns was concerned, whether the election officers were sworn or not. “They were acting colore offictt in the performance of appropriate acts, and are presumed to have been well appointed and qualified.” The defect being a mere formai one is open to correction. In a notable case reported in Vol. 4, of Wisconsin Re- ports, in which the functions and powers of election canvassers were considered, several important questions Freeland, 10 Missouri, 629 ; State v. Harrison, 38 Mo., 540; State v. Rod- man, 43 Mo., 256; Bacon v. York, 26 Maine, 491; Taylor v. Taylor, 10 Minn., 107 ; O’Farrell v. Colby, 2 Minn., 180; Marshall v. Kerns, 2 Swan ° (Tenn.), 68. , 1. People ex rel. Fuller v. Hilliard, 29 Illinois, 418. “They” (the - canvassers) “may probably judge whether the returns are in due form, but, after that, they can only compute the votes cast for the several candidates, and declare the result.” 2. Attorney General v, Barstow, 4 Wisconsin, 749. 3. See People v. Cook, 14 Barbour, 259, supra. THe Conpuct oF ELEcTIONs. 159 arose. The proceeding was an information in the nature of a quo warranto, to try the title to the governorship of the state. The report of the case occupies nearly three hundred pages, and is remarkable for the propositions which were advanced and discussed. The board of state canvassers undertook to reject some of the votes returned, and at a subsequent meeting, to supplement those origi- nally received with others. As the result of this action, a certificate of election was given to the respondent, who took possession of the gubernatorial office. On the in- formation the point was raised, on behalf of the respon- dent, that the executive being equally with the judiciary, a co-ordinate branch of the government, the court could not entertain the proceeding. To this proposition, which jumped elear of the question at issue—whether the respondent was the executive—the court refused to ac- cede, saying that the election, not the certificate, confers the right to hold the office; that the duties of the canvassers are purely ministerial; that the court will go behind the certificate to ascertain whether, in granting it, the canvassers have exceeded their duties, and who was legally elected; that while the court has no power to control or interfere with the executive department, it has jurisdiction of the citizen to prevent his usurping an office; and that the office of governor being a civil office, an unlawful intrusion into or usurpation of it, may be tried by the court, and the usurper or intruder ousted. The board of canvassers were held to have exceeded their powers, the certificate was accordingly declared in- ‘ 160 SUFFRAGE AND ELECTIONS. valid, and a judgment of ouster was entered against the respondent.! As we have seen, the canvassers have a right to be satisfied of the genuineness of the returns. It does not result from what has been stated that they are compelled to accept anything purporting to bea return; but the returns being genuine, the canvassers cannot, unless authorized by statute, go behind them for any purpose. And in determining as to the form of the returns, they must consider the substance and not be too technical. If there is a substantial compliance with the law it is enough. ? Some of the states have statutes conferring upon the canvassing boards the power to revise the returns, to 1. The Attorney General ex rel, Barkford v. Barstow, 4 Wisconsin R., 567. The court, in deciding its jurisdiction, say: ‘It is clear, from the provisions of the constitution and the law above cited, that the office of governor is a civil office, that the incumbent of the office is subject to the process of the law, and that proceedings by guo warranto are especially provided to protect all the civil offices of the state from usurpation and intrusion. * * * Let it still be borne in mind, that this and the like process is the process of the state, not of the court—the mandate of the people, not of the judges; that it is directed to the defendant, not to the executive department; not to dictate or control the action of the depart- ment, but to ascertain by what warrant the defendant is in possession of it. And here I may be permitted to repeat, that the higher and more sacred an office created by the constitution may be, the stronger the reason and the greater the necessity for guarding it against unwarrantable intrusion. The minor offices of the state, county or town might be intruded into and usurped for a time, without seriously affecting the public welfare; but a successful usurpation of the highest office of the state is, in, truth and in effect, the overthrow of the government itself. If the success continues, the constitution is destroyed, and irresponsible and self-constituted power reigns, riots and ruins.” 2. McCrary on Elections, 2 83. Tue Conpuct oF ELEcTIONS. 161 A ‘s hear evidence, and, in their discretion, to reject such ; votes as they deem illegal. Texas, Louisiana, Alabama and Florida are examples. It seems, however, an abuse of terms to call boards clothed with such powers “Can- vassing Boards.” These powers are greatly in excess of the legitimate duty of canvassing the returns, and trans- form those possessing such revisionary and judicial functions into tribunals for contesting elections. The board of canvassers, having canvassed the re- turns, computed the votes and adjourned sine die, is functus officio, and cannot reconvene, reconsider its action and supply and correct errors in its proceedings.? ‘ 1. Clark v. Buchanan, 2 Minnesota, 347. 11 Cuapter VI. . INELIGIBLE CANDIDATES, The authorities are somewhat in conflict as to the effect to be given, in determining the result of an election, to votes cast for an ineligible candidate. In Wisconsin it is held unqualifiedly that while votes cast for an inelig- ible candidate can avail him nothing whatever, they must, nevertheless, be taken account of in canvassing the ballots, and if they exceed in number those cast for the next highest candidate, they operate to defeat him 1! But in Indiana the opposite doctrine prevails, and it is there held that votes cast for a candidate ineligible by reason of a consitutional provision, and of whose inelig- ibility the voters have knowledge, either by actual or constructive notice, are to be regarded as if not cast at 1. State of Wisconsin. v. Giles, 1 Chandler, (Wis.) 112; State v. Smith, 14 Wisconsin, 497. In the case first cited, the court said: “ We are all of the opinion that the mere ineligibility of a candidate, does not, as the law now is, render void the votes cast for him'; that such votes should not be rejected, but should be counted by the canvassers, and that in the eveft of such ineligible person having the highest number of votes, the person hav- ing the next highest number is not thereby elected. If any public embar- rassment is apprehended from this, such as that an office may remain in- definitely vacant, by reason of a majority of the voters persisting in voting for an ineligible person, it is within the undoubted power of the legislature to prevent it, by enacting that all such votes rhall be deemed void, and not to be counted.” 164 SUFFRAGE AND ELECTIONS. all, and the eligible candidate receiving the greatest number of Jegal votes is elected and entitled to the office.1 It is noticeable that in both the Wisconsin decisions the rule is barely asserted as the law, a circumstance which is alluded to by the Indiana court, which states fully the reasons upon which its conclusions are founded. In applying this doctrine to cases in which the disquali- fication arises from a constitutional prohibition the court intimates that it is questionable whether the same rule would govern in cases of statutory disqualification. In State v. Smith, 14 Wis., 497, an alien, who had never declared his intention to become a citizen, and was not, therefore, a qualified elector, was held ineligible for the office of sheriff, for which he had been a candidate at the election and received a majority of the votes cast, and as to the question whether the person receiving the next highest number of votes was entitled to the office, the court referred to and reaffirmed the doctrine in Chandler, supra. _ In Gulick v. New, the relator claimed the office of sheriff on the ground that the opposing candidate, who had received a majority of the votes cast, was not eligible. The fact of ineligibility being established, the court adjudged the relator entitled to the office.? 1. Gulick v. New, 14 Iudiana, 93; Price v. Baker, 41 Indiana, 572. 2. It being conceded that the votes cast for Wallace (the opposing can- didate) were powerless and fruitless in effecting the main end aimed at, that is, in electing him, we are still asked to decide that they were so far effective as to prevent the election of any other person ; that they were, 80 far as affirmative results were involved, thrown away, but that negatively INELIGIBLE CANDIDATES. 165 On the question whether the fact that the candidate held a judicial office (the cause of ineligibility) under a public act, was notice of the ineligibility to the citizens, the court held that it was, (Grant on Corp., 107 ; Oushing on Law of Legislative Assemblies, 66, 67; Biddle v. Willard, they were operative. We are reminded that, in our form of government, the majority should rule, and that if the course indicated is not followed, a majority of the voters may be disfranchised, their voice disregarded and their rights trampled under foot, and the choice of a minority listened to. True, by the constitution and laws of this state, the voice of a majority controls our elections; but that voice must be constitutionally and legally expressed. Even a majority should rot nullify a provision of the consti- tution, or be permitted, at will, to disregard the law. In this is the strength and beauty of our institutions. Suppose a majority should persist in voting for a man totally ineligible to take the office of sheriff, what would be the result? As he could not hold the office, either the one capable of hold- ing, receiving the next highest vote, would, as contended by the appellant, be entitled to the office, or there would be a vacancy, as contended by the appellee. Suppose the proceedings should result in creating a vacancy, then it would remain greatly to the detriment of public and private inte- rests, or it would, under the statute, have to be filled by the action and choice of, perhaps, two men, which might be, possibly, in direct conflict with the choice of that majority in every respect. Then, while it is true that the votes of a majority should rule, the tenable ground appears to be that if the majority should vote for one wholly incapable of taking the of- fice, having notice of such incapacity, or should perversely refuse or neg- ligently fail, to express their choice, those, although a minority, who should legitimately chcose one eligible to the position, should be heeded. Suppose that, eight years ago, at the first election under our new constitu- tion, when nearly all the offices in the state were to be filled, a majority of the voters in the state, and in the several districts and counties, had voted for persons wholly ineligible to fill the several offices, would those offices have thereby remained vacant? Could that majority, by persevering in that course, have continued the anarchy that might have resulted from such action? Or, rather, is it not the true theory that those who act in ac- cordance with the constitution and the law, should control even a majority who may fail so to act? Whether the same reasoning would hold good where the ineligibility should arise out of some cause other than a consti- tational prohibition is a question we are not now called upon to decide.” 166 SUFFRAGE AND ELECTIONS. 10 Ind., 62, ». 68 ;) and concluded: “The votes then given, or attempted to be cast for him for that office, were ineffectual for any purpose. They had no more effect, in a legal point of view, than if they had been cast for a dead man, or for one who never had a being.” In Price v. Baker, 41 Indiana, 572, decided in 1878, the doctrine in Gulick v. New was re-affirmed as “a principle of law well settled in the state.” It was strictly confined in its application to “those cases only where different persons are candidates for the same office, and” as hav- ing “no application to cases where two or more persons are candidates at the same election for different offices. Accordingly, although the office of one prison director is the same as that of another prison director, except it, may be with reference to the time of election and the term for which he is to serve, still when one has been elected to succeed a designated person in such office, he cannot act as the successor of another in the same body, on the ground that the person who has been elected to succeed the other is ineligible.” In New York, the court of appeals, while holding that under certain circumstances a candidate next highest to one who is ineligible, may be entitled to the office, practically rejects the doctrine of constructive notice to the voter. The next highest eligible candidate, it is held, can only be deemed entitled to the office when the fact is so notorious as to charge those who cast their ballots for an ineligible candidate with actual notice and knowl- edge of the law. If a majority vote, through ignorance INELIGIBLE CANDIDATES. 167 of the law or the fact, for a person ineligible to the office, the New York rule is that their votes are not nullities, but the election is a failure. A minority may elect to an office, but only when the majority decline to vote, or, when voting, they do so for a person legally disqualified, under circumstances justifying the conclusion that they purposely intended to throw away their votes. The rule of the court is thus stated: “The existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an intent to waste it. The knowledge must be such, or the notice brought so home, as to imply a willfulness in acting, when action is in opposition to the natural impulse to save the vote and make it effectual. He must act so in defiance of both the law and the fact, and so in opposition to his own better knowledge, that he has no right to complain of the loss of his franchise, the exercise of which hehas wantonly misapplied.” The principle upon which this decision’ is grounded is that of presumptive acquiescence, the rule amounting to this: That the only circum- stances under which a minority candidate can be ad- judged entitled to the office are such as create a pre- sumption that the majority intended to acquiesce in the action of the minority, and that only from the majority not voting at all, or from their voting for a candidate whom they know or have notice is disqualified, can acquiescence be presumed. 168 SUFFRAGE AND ELECTIONS. The decision in the People ex rel. Furman et al. v. Clute, 50 New York Reports, Court of Appeals, Sickels 5, 451, was one reversing the judgment of the supreme court general term. The special term had decided that although the candidate who received a majority of the votes was in- eligible, the next highest candidate could not, in the absence of proof of notice of disqualification to the electors, acquire title to the office, The general term reversed this decision, and adjudged the relator entitled to the office. This latter judgment was, in its turn, reversed by the appeals, and that of the special term sustained. 1. Folger, J., delivering the opinion of the court, said: “It is the theory and general practice of our government that the candidate who has but a minority of the legal votes east does not become a duly elected officer. But it is also the theory and practice of our government, that a minority of the whole body of qualified electors may elect to an office, when a majority of that body refuse or decline to vote for anyone for that office. Those of them who are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls, and who do not vote for any candidate for an office, are bound by the result of the action of those who do; and those who go to the polls, and who vote for a person for an office, if for any valid reason their votes are as if no votes, they are also bound by the result of the action of those whose votes are valid and of effect. As if, in voting for an office to which only one can be elected, two: are voted for, and their names appear together on the ballot, the ballot so far is lost. The votes are as if for a ‘dead man or for no man. They are thrown away; and those who cast them are to be held as intending to throw them away, and not to vote for anyone capable of the office. And then he who receives the highest num- ber of earnest valid ballots, is the one chosen to the office. We may goa step further. They who, knowing that a person is ineligible to office by reason of any disqualification, persistently give their ballots for him do throw away their votes, and are to be held as meaning not to vote for any- one for that office. But when shall it be said that an elector so knows of a disqualification rendering ineligible the person, and knowing, persistently INELIGIBLE CANDIDATES. 169 The court of Missouri has followed the New York doctrine. (State ex rel: Att’y General v. Vail, 53 Missouri, Post. XII, 97. Citing 56 Penna. State, 270; State ex rel. Stone v. Garland, 18 Louisiana, 517; 20 Louisiana, 114 ; 13 Cal., 152 ; 25 Maine 568 ; 38 Maine, Appendix; 12 Ga., 23; Dillon on Municipal Corporations, 176, § 185.) The Missouri court say: “To declare a candidate for an elective office elected, who has received but few votes, on the ground that his competitor, who received, perhaps, twice as many, was disqualified, would not accomplish: the will of the electors. The object of an election is to casts for him his ballot. There may be notice of the disqualifying fact, and of the legal effect of it, given so directly to the voter, as that he shall be charged with actual knowledge of the disqualification. There may be a disqualifying fact so patent or notorious, as that knowledge in the election may be presumed as matter of law. (Gosling v. Veley, 7 Ad. and Ell, N. R., 406-439 ; 53 Eng. Com. L. Rep., 406.) To which we add, that not only must the fact which disqualifies be known, but also the rule or enactment of law which makes the fact thus effectual.’ The court says further that the maxim that ignorance of Jaw does not excuse, has no application in these cases when it “charges upon the elector such a presumption of knowledge of fact and of law as finds him full of the intent to vote in the face of knowledge, and to so persist in casting his vote for one for whom he knows that it cannot be counted, as to manifest a purpose to waste it. * * We have consulted many of the authorities cited to us from the English books; and in them it will be found, we think, that where it was held that votes for an ineligible person would be treated as thrown away, it was not extended beyond. cases in which there was actual notice of fact and of law to the voters before their votes were cast. (Gosling v. Veley, supra.; Rex _v. Hawkins, 10 East., 211; Claridge v. Evelyn, 5 Barn. and Ald., 81; Douglas, 398, note [22]; Rex v. Parry, 14 East., 549; Rex v. Bridge, 1 Manlet, Selwin 76.) -And there are American authorities which hold that if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him in poll shall receive the office. (Saunders v. Hayner, 13 Cal., 145 ; State v. Giles, 1 Chandler (Wis.,) 112; State v. Smith, 14 Wis., 497.) 170 SUFFRAGE AND ELECTIONS. ascertain the choice of the majority. If a disqualified candidate receives a thousand votes and his competitor only a hundred, to pronounce the latter elected is not in accordance with any ascertained will of the electors, unless it may be inferred that the votes for the disquali- fied candidate were cast with a knowledge of his inability to take the office.” In the case of The Commonwealth v. Cluley, 56 Penna., 270, the disqualification of the candidate for whom a majority voted was a constitutional one, but, notwith- standing this, the court held that the next highest can- didate was not entitled to the office.1 There was a dis- senting opinion in this case which is worthy of notice/ as, taken in conjunction with the Indiana decision, it presents a fair idea of the arguments in favor of giving 1. Commonwealth v. Cluley, 56 Penna., 270. Cluley, after holding the office of sheriff for one term, was renominated and voted for, for a second succeeding term, although the constitution provided that no person could be commissioned for that office twice in six years. He received a large majority of the votes cast. The court held that his competitor, although eligible, could not take the office, and therefore had not such an interest as to entitle him to sue for a writ of quo warranto. The decision says: “The votes cast at an election for a person who is disqualified from holding an of- fice are not nullities. They cannot be rejected by the inspector, or thrown out of the account by the return judges. The disqualified person isa person still, and every vote thrown for him is formal.” Referring to cases where the opposite conclusion was reached, the court added: “In those cases ° the notice was brought home to almost every voter, and the number of electors was never greiter than three hundred, and generally not more than two dozen. Besides, a man who votes for a person with knowledge that the person is incompetent to hold the office, and that his vote cannot, therefore, be effective, that it will be thrown away, may very properly be considered as intending to vote a blank, or throw away his vote.” INELIGIBLE CANDIDATES, 171 the office to the candidate next highest to one who is ineligible? The case in 18 and 20 Louisiana Reports, cited in the Missouri decision, is not directly in point. There the court decided that, the defendant being disqualified, the vacancy must, under the proceedings instituted by the relator, be filled’ as provided specially by the charter, adding that they were not called upon to say what might have been the rights of the defendant had he contested the matter in a way not to be construed as acquiescing in the election. The case cited from 12 Georgia Reports, 24, related to the office of city clerk and treasurer. The court held that the allegation of disqualification was: not sustained, but said “under no circumstances could we permit the informant to be installed into these appointments, he not having received a majority of the legal votes of the city. Under such circumstances, if the incumbent be removed, a new election will be ordered.” 1. Thompson, Chief Justice, dissenting, said: ‘“ But I confess my ina- bility to see, if it (the question of intent) must be treated as a preliminary question, ‘if the constitutional disqualification of the defendant be estab- lished, the relator is not entitled to the office. He had votes enough to elect him if the votes given for the defendant be regarded as thrown away. This cannot be disputed. It seems to me this position cannot be contro- verted, that if the votes cast for the defendant would not confer the office on him, that tney did not possess the faculty or capacity of depriving the plaintiff of his election, having, as already said, enough legal votes to elect him, The majority of votes cast operates only in one direction, namely, to elect, and, by electing, defeat any competitor, but without electing, I deny that the effect is to defeat a competing candidate. * * * Itnever can be an answer to this position, that the electors did not know of the in- -eligibility of the candidate.” 172 SUFFRAGE AND ELECTIONS. The judgment in Saunders v. Haynes, 13 Cal., 148, is in consonance with the Wisconsin, New York, Missouri and Georgia decisions, and the authorities on which they are based, holding that the prevailing opinion, English and American, of modern times, seems to be against giving the office to the candidate next highest to one who is in- eligible, and so deciding. ‘Upon principle we think the law should be soruled. An election js the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or fact, hap- pen to cast their votes upon an ineligible candidate, it by no means follows that the next to him on the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the vote, and who never could have been elected at all but for this mistake. The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes, because his competitor was ineligible.” This question was before the United States Senate as long ago as 1796. Albert Gallatin was chosen to that body by the legislature of Pennsylvania. It was found that he labored under a disqualification (non-residence), and was declared not entitled to the seat. But the seat was not given to his competitor. Ata later date Joseph C. Abbott claimed a seat in the Senate on the ground that, although he received only a minority of the votes INELIGIBLE CANDIDATES. 173 cast, no other eligible candidate was voted for. The Senate refused to give him the seat. (Forty-second Con- gress: Senate Report, No. 58.) In 1824 John Bailey, elected to the House of Representatives from Massachu- setts, was found to be disqualified, but his competitor was not allowed to take the place. There are cases holding directly that when the candi- date receiving the highest number of votes, is ineligible from a fact or cause which the public do not and are not bound to know, the result is a failure, and gives no can- didate the office. Examples of cases wherein the voters may not be held as having knowledge, are the infancy of the candidate, non-residence, want of naturalization and non-existence. In a case reported in Maine, a portion of the people voted by mistake for a person not in being. It was held that there was a vacancy.? . In this connection we may note here the case of State ex rel. Schuet v. Murray, 28 Wisconsin, 496, which decided that though a person is ineligible when voted for, he 1. Opinion of court, 38 Maine (appendix,) 597. The case was this: Among the returns made to the governer and council was one reporting votes for Abel C. Winslow. A certificate was accordingly made out in that name. It turned out thatthere was no such person as Abel C Winslow, but that there was an Abel E. Winslow. The opinion of the court was asked, and was given to the effect that'the governor and council could do nothing more than certify to the election of such person as appeared by the returns to have been elected; that they could not take testimony to show that Abel E. and not Abel C. was the name of the candidate voted for, and upon that issue a new commission to the former, nor could they turn out returns shown to have been made for a person not in existence, and issue a commission to the eligible candidate; and that in such a case, the issued certificate having no application, there was a vacancy, and the governor might fill it. 174 SUFFRAGE AND ELECTIONS. may enter upon and hold the office if the ineligibility ceases or is removed before the term: of the office begins. The principle was declared to be that the disqualification does not relate to the election, but to the holding of the office.1 . 1. See post., chapter Aliens and Naturalization. Cuapter VII. REGISTRATION LAWS. In some of the states special provision is made in the constitution for the enactment of registration laws by the legislature,! in others the making of the registration of the voters a prerequisite to the right to vote, is forbid- den,” and in one registration laws are absolutely prohib- ited. In states whose constitutions are silent, laws of this character have been enacted as a part of the system regulating elections, and have given rise to litigation. The obvious conclusion has been that the legislature 1. See constitution of: Alabama, Art. III, Sec. 5; Colorado, Art. VII, Sec. 11; Florida, Art. XV, Sec. 1; Georgia, Art. II, Sec. 6; Kansas, Art. V, Sec.4; Kentucky, (by implication?) Art. VIII, Sec. 4; Louisiana, (by implication?) title VI, articles 99 and 103; Maryland, Art. I, Sec. 5; Michigan, (by implication?) Art. VIT, Sec. 6; Mississippi, Art. VII, Sec. 3; Missouri, Art. VIII, Sec. 5; Nevada, Art. II, Sec. 6; and with special reference to persons in the military and naval service, Sec. 2; New York, (by implication?) Art. II, Sec. 4; North Carolina, Art. VI, Sec. 2; Oregon, (by implication?) Art. II, Sec. 8; Pennsylvania, Art. VIII, Sec. 7; Rhode Island, Art. II, Sec. 6; South Carolina, Art. 8, Sec. 3; Tennessee, (by im- plication) Art. IV, Sec. 1; Virginia, Art. III, Sec.4; West Virginia, (by implication) Art. IV, Sec. 11, but see section 12. 2. Constitution of Arkansas, Art. III, Sec. 2; Nevada, as to persons in the military and naval service, Art. II, Sec. 2; Pennsylvania, Art, VIII, Sec. 7; West Virginia, Art. IV, Sec. 12. 8. Constitution of Texas, Art. VI, Sec. 4. 176 SUFFRAGE AND ELECTIONS. cannot add anything to the qualifications prescribed by the constitution of the state. In Monroe v. Collins, 17 Ohio St. 665, it is very properly said, that legislation should be to facilitate rather than impede the right of suffrage. “Between the legislative power and the legal elector, no matter who or what he is, the constitutional provision stands, as a bulwark, for the protection of his right to vote. What the legislature cannot do directly, it cannot do by indirection. If it has no power expressly to deny or take away the right, it has none to define it away, or unreasonably to abridge or impede its enjoy- ment by laws professing to be merely remedial. The power of the legislature in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise and preventing its abuse.”? ‘It is, accordingly, heid that a law which alters, adds to or abridges the constitutional qualification of a voter is void.2 A decision in New Jersey, where the constitution provides that every male citizen of the United States, who 1. In the case cited, the court added: “ All reasonable latitude should be allowed to the legislature in the exercise of this power of registration, and every reasonable intendment in favor of the constitutionality of laws enacted for that purpuse, should be made by the courts. Such laws are not to be held unconstitutional unless clearly so, and if they will at all beara construction which makes them consistent with the constitution, they are to receive that construction, and so to be upheld. The true line between laws which take away or abridge the right of suffrage, and those which may be lawfully enacted to regulate its exercise, is laid down by the Supreme Court of Massachusetts in Capen v. Foster, 12 Pick., 488. Itwas there held, substantially, that laws of the latter description must be reuson- able, uniform, and impartial; and must be calculated to facilitate and secure rather than to subvert or impede the exercise of the right to vote.” 2, See 7 Nevada Rep., 64, and cases cited hereafter. ReEGIstRATIoN Laws. 177 has resided in the state one year and in the county where he offers to vote five months, shall be entitled to voté, but where the registry law closes the registration some days in advance of the election, and provides that the vote of no one whose name is not on the list shall be received, would seem to be inconsistent with the princi- ple stated. That principle has, in other states, been broadly asserted. Thus it is held in North Carolina that the suffrage guaranteed by the constitution of a state is aright to be exercised in any part of it, and that the legislature cannot in any way change the qualifications of voters in state, county, township, city or town. (The Peojile of North Carolina ex rel. Van Bokkelen and others v. Wm. P. Canaly and others, 73 North Carolina, 198.) An act of the legislature provided that no person should be entitled to registration [that being a prerequisite to voting] in Wilmington who had not resided ninety days next preceding the election in the lot, block and ward. The provision was pronounced unconstitutional.! 1. The Supreme Court said: “Our government is founded on the will of the people. Their will is expressed by the ballot. * * * The con- stitution provides that every male person twenty-one years old, resident in» the state twelve months, and_in the county thirty days, shall be an elector. —Art. VI, sec. 1. An elector for what? The constitution does not say for what. Does it mean elector for president, or for members of congress, or for governor, or for judges, or for members of the general assembly, or for county officers, or for township or town officers, or for what else? There it stands by itself without explanation—that every such person shall be an elector—a voter. It evidently means to designate those per- sons as a, class, to vote generally wherever the polls are opened and elec- tions held for anything connected with the general government, or the state or local governments. * * * Cities and towns, like counties and townships, are parts and parcels of the state organized for the convenience te ° 178 SUFFRAGE AND ELECTIONS. The Wisconsin Supreme Court has decided the same way. (The State of Wisconsin v. Williams, 5 Wiscon- sin Rep., 308.) An act was passed by the Wisconsin legislature submitting to the voters of a county the pro- posed change of the county seat. The act provided that no person should vote on the question of removal who had not resided in the town where he offered his vote at: least thirty days previous, and who was not a permanent resident of the county. The supreme court considered the qualifications of the voters as fixed by the act in respect to residence in the state, quite different from those prescribed in the constitution. “It seems to us clear, that by requiring a residence of thirty days in the town where the elector offers to vote, the legislature have added a qualification not contained in the constitution, and which is repugnant to its provisions. The constitu- tion provides that, if a person possesses certain qualifica- tions, and has resided in the state one year next preced- ing any election, he shall be deemed a qualified elector of local self-government. And the qualifications of their voters are the same. It follows that the general assembly cannot in any way change the qualifications of voters in state, county, township, city or town elections. And yet the act, which we are considering, requires a residence of ninety days instead of thirty, * * * For illustration: a man presents him- self at a town election and says I have voted in the state election, in the county election, in the township election, and now I want to vote in the town election, where I have lived thirty days. His vote is rejected be- cause he has not resided there ninety days. In vain we look in the con- stitution for any such qualification. * * * Weare of the opinion that the qualifications for a voter in a city or town are citizenship, twenty-one years of age, twelve months’ residence in the state and thirty days in the city or town.” REGISTRATION LAws. 179 at such election; while the act. of the legislature in question, provides, in effect, that this shall not be sufficient. We have no doubt that the legislature have the power to provide that a person who has a right to vote under the constitution, shall be allowed to exercise this right only in the town where he resides, because this would only be to prescribe the place where a right which he possessed under the constitution shall be exercised, and fixes upon the most convenient place for its exercise. Such a provision does not add to the qualifications which the constitution requires; but an act of the legisla- ture which deprives a person of the right to vote, although he has every qualification which the constitu- | tion makes necessary, cannot be sustained.” The remark of the court that the legislature may enact, that the elector shall vote only in the place where he resides, must, taken in connection with the rest of the decision, be interpreted as meaning the actual residence without regard to time. Even taken in this broad sense, it. seems to abridge the right as guaranteed by a con- stitutional provision, which speaks only of the county wherein the person offers to vote. It would seem to have been the intention-of the framers of constitutions thus worded, not to take notice, in prescribing the quali- fications for suffrage, of divisions and subdivisions of counties, but to make residence in the county for the specified time, the sole test as to the voting locality, leaving the citizen free to move from one part of the 180 SUFFRAGE AND ELEcTIONS. county to another, if necessity required it, up to the day of election, without thereby losing his right to vote. The case in 12 Pickering, Mass. Reports, in which it was decided that a law requiring lists of voters to be made out, and forbidding the election officers to receive the vote of anyone whose name is not on the list, is valid, will be found, on examination, not to sustain the posi- tion that a law which adds to the qualification by closing the registry some days in advance of election, thus mak- ing residence in the city or ward for a certain time essential, is constitutional. The act under consideration in that case provided that the lists should be opened on the day of election, to give those who had not previously registered an opportunity to do so, and the court referred to this provision of the law as one of the reasons for sustaining it.? ; The adjudications on this question in Pennsylvania have been somewhat remarkable, the decision rendered in one year by the Supreme Court, being overturned in the next, the organization of the court having, in the interim, undergone a change, by the resignation of one 1, Capen v. Foster, 12 Pickering, Mass. Rep., 492, 493. “The lists,” said the court, “are first to be prepared by the collectors of taxes, and submitted to the selectmen, who are to revise and publish the same for the inspection of all interested. They are to be in session a sufficient length of time, shortly before the election, and for an hour at least on the day of meeting to receive evidence of the qualifications of those whose names may have been omitted.” And: “Still if the provision of this law is such as to afford the voter no opportunity to know seasonably whether his name is on the list or not, and to have it inserted if previously omitted, it would constitute a serious objection to its validity.”'’ Page 493. REGISTRATION Laws. 181 of the judges who voted with the majority on the first decision, and the appointment of a successor who voted with the two judges dissenting in the first case, to over- rule. In Page v. Allen, 58 Penna. State Rep., 388, the reg- istry law under consideration required certain proofs as to residence, and other prescribed qualifications, to be made to the board of registry, among others of ten days residence in the district previous to offering the proof, and the proof to be made ten days before the election. The court held this unconstitutional. The principle of the decision was ably stated by Chief Justice Thompson, who, delivering the opinion of the court, said that “for the ordinary exercise of the right resulting from these (constitutional) qualifications, it is admitted that the legislature must prescribe necessary regulations, as to the place, mode and manner, and whatever else may be required to ensure its full and free exercise, but this duty and right inherently imply that such regulations are to be subordinate to the enjoyment of the right the exercise of which is regulated. The right must not be impaired by the regulation; it must be regulation purely, not destruction; if this were not an immutable principle, elements essential to the right itself might be invaded, frittered away or entirely exscinded, under the pretence of regulation, and thus would the natural order of things be subverted, by making the principal subordinate to the accessory; to state is to prove this position. As a corollary of this, no constitutional quali- 182 SUFFRAGE AND ELECTIONS. fication of an elector can in the least be abridged, added to or altered by legislation on the pretence of regulation ; any such action would necessarily be absolutely void and of no effect: We hold, therefore, what, indeed, was not expressly denied, that no regulation can be valid which would have the effect to increase the district or state residence, prior to the time of an offer to exercise the right of an elector.” The next year, however, the court, as newly consti- tuted, decided the other way. A case went to the Supreme Court on an appeal from a lengthy and careful opinion delivered by Justice Sharswood at Nisi Prius, holding that the registry act of 1869 was unconstitutional be- cause, by imposing conditions to the exercise of suffrage upon citizens of Philadelphia not imposed upon other parts of the state, it contravened the declaration in the Bill of Rights that elections shall be equal, and because it abridged the space of time allowed by the constitution 1. By the court: “The constitution requires a previous residence when the citizen offers to vote, of ten days in the district. The act requires ten days’ residence in order to be admitted to registration, and proof to be made at least ten days before election day. This is a plain requirement of proof of twenty daya, instead of ten days, as required by the constitution. * * * The absence of his [the voter's] name there [on the registry] is made conclusive against his right. * * * This adds to the qualifica- tion ten days. One year and ten days in the one case, and six months and ten days residence in the other, is the requirement of the act. * * * “It seems inevitable that in all cases where the voter’s qualification becomes complete, according to the constitution, only within ten days before any general election, he cannot be registered from inability to make-the proof required by the act, and consequently will be deprived of his right to vote if the act be sustained as constitutional. For these reasons, a majority of us concur in holding the act unconstitutional, and of course void.” Registration Laws. 183 for the assessment made a qualification of suffrage. The questions mainly discussed were whether the constitu- tional requirement that elections shall be equal invali- dated a law relating to elections, operating differently in different parts of the state, and whether the legislature could prescribe any requirement having the effect of in- creasing the time of residence prescribed by the consti- tution. Notwithstanding the act under consideration did this, and, as Justice Sharswood showed ‘in his opin- jon, contained numerous provisions specially applying to one place,! a majority of the Supreme Court sustained it.2 The decision was earnestly combatted by Chief Jus- 1. Patterson v. Barlow, 60 Penn. Rep., pages 65-6. 2. Ibid. Opinion of court, page 74. The syllabus of the decision,.as rendered by Agnew, J., is as follows: The constitution cannot execute it- self; the power to regulate elections is legislative, and has always been ex- ercised by the general assembly. The precincts, places and boards of elec- tion, the lists of electors, and the evidence as to persons and qualifications must be prescribed by law. This power is left by the constitution to legislative discretion regulated only by the injunction that “elections shall be free and equal. The constitution does not require that the regula- tions to make elections free and equal shall be uniform. The discretion belongs to the legislature, is a sound one and cannot be reviewed by any other department of the governinent except in a case of plain, palpable and clear abuse of the power which actually infringes upon the rights of electors. Mere errors in the execution of the legislative power cannot make the execution unconstitutional. That election is free and equal where all the qualified voters of the precinct are clearly distinguished from the un- qualified and are protected in the right to deposit their ballots in safety and unprejudiced by fraud. The provision of the constitution that the elector shall have paid a state or county tax within two years, which shall have been assessed at least ten days before the election, was to restrain the assessment so that voters might not be fraudulently made at the polls; not that assessments should be compulsory down to the tenth day before the election. If the legislature believe that the best means to prevent fraud in 184 SurrrAGE AND ELECTIONS. tice Thompson in a lengthy decision, in which he was sustained by Justice Sharswood. They adhered to the principles laid down in Page v. Allen, but the judge who had, with them, formed the majority in deciding that case, having retired, and his successor voting to overrule, the decision was reversed.! the city election is to increase the period for the last assessment 1t may be done. An election law is unconstitutional only when it subverts the true elector’s rights, not because the tribunal acting under it may make mis- takes or even abuse its functions, The act is constitutional.” In the text of the decision the following are among the arguments used: “If uni- formity of regulation be unsuited to different localitiés, the end must be attained by diversity. If in one part of a state a system secures to electors a free and equal election, but fails to secure it in another part, because of the difference of circumstances, what principle of constitutional law makes it unlawful to enact other provisions to counteract the circumstances and secnre the true purpose of the constitution.” After pointing out the differences between the city and the country, and the greater necessity of regulations to prevent abuses in the former, Judge Agnew continued: “Then of what service is it to display the differences in this law, between ‘the regulations made for the city and those for the state? Let them'be ten or ten times ten, it is not their difference which proves their uncon- stitutionality—difference of regulation is not want of equality in the elec- tion. He who would prove them to be unlawful, must show wherein they subvert the rights of the electors themselves. If the prevalence of fraud, corruption or force in the city makes the law more rigid and exacting in order to determine the rights of the lawful electors, it may be a hardship; but it is not caused by the law, but by the crimes which make the law necessary for their protection. * * * But what clause of the constitu- tion requires the assessment of taxes to be extended to any period? It is a new discovery that the system of taxation must be subordinated to that of election. * * * The rights of the true electors were well protected when they were allowed two years preceding for the payment of a tax to secure their qualification, a period including certainly two and it might be three annual assessments. To this the law adds an extra assessment at any time before the twentieth of September. The time of the assessment of taxes is part of a different system, that of taxation, and the constitution has nowhere said it is to be subordinated to the system of election.” 1. Under the peculiar circumstances a few sentences from the dissenting REGISTRATION Laws. 185 Mr. Brightly in his Leading Cases on Elections, refers to this last decision in connection with his note on Capen v. Foster, in which he remarks that “the practical diffi- culty has beén that a partizan elective judiciary have ever been found ready to sustain a law enacted in favor of their own political friends,” for the purpose of point- opinion of Chief Justice Thompson, may be quoted: “To speak without circumlocution, and to the point under consideration, it seems to me an incontrovertible position that whatever legislation embarrasses and ren- ders more difficult than is requisite to its enjoyment, the right of an elector to vote, impairs the right itself, and, as a consequence is a violation of the constitution on the subject. * * * A right surrounded by such details, requirements and difficulties as to embarrass its enjoyment at every step, is hardly to be regarded as a right at all. It is more properly character- ized as a chance for the enjoyment of the specific right. In my judgment, after a most sedulous effort to master and comprehend its details, that is just the nature and character of the right pertaining to a large body of electors in the city of Philadelphia under the registry ac. * * * * If frauds were imminent by simulated voters, let penalties be provided for the rogues, and set honest and vigilant men to watch them, hut let not the rights of honest voters be sacrificed by these apprehensions.” In answer to the argument of Agnew, J., that the difference between the city and the county warranted a different regulation for it, the chief justice says: “It would seem, therefore, only necessary to assume a want of morality in a particular district to justify the legislature in dealing with that locality so as to embarrass the rights of its electors, ete. * * * * “ A regulation must necessarily be subservient to, and in aid of the thing regulated. * * * * The governing power in this country is the people, and it is made up of all classes. The compact between the people, namely ‘the constitution, settled who should be voters, and this was a prohibition against interference with the arrangement. * * * * In this country of equal rights it can hardly be claimed that a statute destructive of an equality created by the constitution can be binding. But it is argued ‘that it is so, unless expressly prohibited. This is always said where the pressure is severe for an argument, but is mostly untrue. There are many things which the constitution does not prohibit, but which all will agree will conflict with it. Is it necessary to find a prohibition, for instance against an attack upon the principles of liberty itself? 186 SUFFRAGE AND ELECTIONS. ing out inaccuracies in the historical references upon which the opinion of the majority of the court was par- tially rested.1 Where registration laws are within the terms of the con- stitution,and so framed as to give them effect, it is import- ant that their requirements should be observed. Ens- worth v. Albin et. al., 44 Missouri, 247, is authority on the point that an election held in disregard of a registry law, will be held void. In that case, however, it appeared that, although the statute made registration an indispen- sable prerequisite to an election, there was no registration whatever. It was argued, with some force, that, if such a rule prevail, it would be in the power of boards of reg- istration to render legal elections impossible, by neglecting or omitting to perform their duties. This possible mischief of the statute, which might occur from the dereliction of the officials appointed to execute it, was not regarded as going to the question of its constitutionality or its bind- ing force. “ We are referred to no case,” said the court, 1. Brightly’s Leading Cases on Elections, page 68-4, note. “ Mr. Justice Agnew, who was a member of the convention of 1838, based his argument upon the fact, that when the third article of the constitution was under consideration, Mr. Sterigere offered an amendment ‘that all election laws shall be uniform throughout the state, and no greater or other restrictions shall be imposed on ‘the electors, in any city, county or district, than are imposed on the electors of every other, city, county or district, and that this amendment was rejected, many.of the political friends of Mr. Sterigere voting in the majority. But the learned judge omitted to state that the democratic members of the convention who voted with the majority, con- tended in the debate, that the amendment was not only out of place, but was unnecessary, inasmuch as the clause in the bill of rights, that ‘elec- tions shall be free and equal,’ covered the whole ground, and rendered unconstitutional the Philadelphia registry law of 1836.” REGISTRATION Laws. 187 “where a law has been held unconstitutional for the reason that the officers required to execute it, had ne- glected their duty or abused their trust, nor are we aware of any principle on which to base such a decision.” This decision 1s reconcilable with those holding that official irregularities do not render an election void, on the ground that the statute was mandatory. Cuapter VIII. ——$<<£——_____. TAXES AND SUFFRAGE. From the principle laid down in cases already cited, that the legislature cannot add to the qualifications or restrictions imposed by the constitution on the exercise of suffrage, it follows that the payment of a tax can be made a prerequisite to the right to vote only in those states whose constitutions contain provisions of that character. Some of the state constitutions contain such provisions, and they have given rise to litigation. The old Pennsylvania constitution provided that “every freeman, of the age of twenty-one years, having resided in the state two years next before the election, and within that time paid a state or county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector.” In Catlin v. Smith the plaintiff brought action against an election offieer of Philadelphia for refusing his vote. The declaration set forth his qualifications as to residence, and alleged that he caused himself to be assessed-on the 29th of October, for a tax that had been laid on the county, but not assessed on him, six months before, and that having paid the tax on the 29th of October, he offered to vote the next day, but that his vote was re- 190 SUFFRAGE AND ELECTIONS. jected. The court held that the rejection of the vote was right; that to entitle a citizen, otherwise qualified, to vote, the tax must be assessed on him individually at least six months preceding the election.t The present constitution of Pennsylvania provides, as to all persons of twenty-two years of age and upwards, that to entitle them to vote, they shall have paid within two years a state and county tax, which shall have been assessed I. Catlin v. Smith, 2 Sergeant and Rawle, Pa., 267. Three opinions were read. Tilghman, C. J., said: “Why was an assessment, six months prior to the election, deemed necessary? It was not merely to induce the citizens to pay their taxes; the object was of more importance ; it was to secure peace and certainty, and prevent tumult and confusion at elections. Six months before the election, when the passions were not inflamed with the approaching contest, every man might give in his name to the assessors, and thus a register would be formed, showing, with certainty, every person ‘who was entitled to vote;’ but as the election drew near, the minds of men became heated, and great exertions were made, attended often with tumult, to procure votes, by causing persons who had no property to be assessed. I believe this often took place on the day of election, involved the inspectors and judges in difficulties, for want of time to ascertain the _ qualifications of men thus suddenly brought to the polls, and, of course, was productive of altercation and hot blood. These were the evils to be prevented ; and they will be prevented if no person is permitted to vote unless the tax was assessed on him six months before the election.” Yates, J., putting it on another ground, said: ‘The object of these special. pro- visions unquestionably was, in the language of the old constitution, to allow only those to give their suffrages who ‘had a sufficient evident com- mon interst with and attachment to the community,’ and who, therefore, must necessarily participate in the prosperous or adverse fortunes of the recublic.” And Brackenridge, J., speaking of the object of the taxation clause and the policy it was-designed to subserve, says: “It must have been to provide against the very thing that has here happened, a moneyed man procuring votes, on the spur of the occasion, by getting individuals assessed and paying a tax for them. In this point of view, it is anti-repub- lican,. and I am inclined to reject a construction that will have that opera- tion.” TAXES AND SUFFRAGE. 191 at least two months, and paid at least one month, before the election. The phraseology of this provision keeps it within the principle of the decision quoted from Catlin v. Smith. The case of Humphrey v. Kingman decides that the payment of state and county tax, by one otherwise quali- fied, entitles him to vote, though such taxes were illegally assessed upon him;! and in Draper v. Johnson it was de- cided that, although a tax assessed upon one person, be be paid for him by another without previous authority, yet if the person assessed acknowledge the act and en- gage to refund the person paying, he acquires the right to vote as fully as if he had paid it with his own hand.? But where it appeared that the person from whom a tax on land was first claimed, refused to pay, denying that he owned the land, and afterwards, the tax having been paid by the owner, refunded it without acknowledging his liability, but merely for the purpose of voting, his right to vote was denied. In Massachusetts it is held that persons exempted from the payment of poll taxes by reason of old age, are not entitled to vote, unless they have paid a property tax.? 1, Humphrey v. Kingman, 5 Met., 162. 2. Draper v. Johnson, 1 Cong. Elect. Cases, 702. * 8, Opinion of Judges, 5 Met., 591. Cuarter IX. ALIENS—NATURALIZATION. As we have already seen, naturalization neither con- fers the right to vote, nor is it, in, all the states, essential to the right of suffrage. But in most of the states it is. The general rule is, that an alien is one born out of the jurisdiction and allegiance of the United States.? But to this there are exceptions. The inhabitants of territory ceded to the United States by treaty, become citizens without naturalization, by act of congress.® The same is the case in regard to the inhabitants of a territory acquired by annexation.4 The rights and privileges of citizenship, whether arising from birth or acquired by naturalization, are the same with the excep- tion of the right to hold the office of president or vice president of the United States, and the children of citi- zens of the United States, native or naturalized, born without the limits of the country, are entitled to all the 1, See suffrage clauses of constitution of West Virginia, Kansas, Minne- sota and Alabama; Spragin v. Houghton, 3 Ill. 377; Note 5 Chase’s Blackstone, page 124, (*375.) 2. 2 Kent’s commentaries, 50. 8. Harrold’s case, 1 Clark, 214. 4, Cryer v. Andrews, 11 Texas, 183. 13 194 SUFFRAGE AND ELECTIONS. privileges of citizenship,! and this, notwithstanding the mother 1s an alien, the principle partus sequitur patrem controlling in such cases.2- Even where a citizen of the United States removes to a foreign country, intending to make it his permanent home, and, carrying out his intention, settles and dies there, it is held that the mere change of residence and domicile in a foreign country, does not forfeit his citizenship,? and that his children, born after his removal and during his residence abroad, are, citizens of the United States.4 The doctrine that gives to the child the full benefit of all the rights or privileges of citizenship, partially or wholly acquired by the father, has been carried to the extent that the chil- dren of an alien, who are born abroad, but come to this country under seventeen years of age, become citizens on attaining twenty-one years, the father having declared 1. Davis v. Hall, 1 N. & McCord, 8. ©. Rep., 292; Oldtown v. Bangor, 58 Maine, 353; McKay v. Campbell, 2 Saw., Nevada Rep., 118; State v. Adams, 45 Iowa Rep., 99; 10 Rich, (S. C.) Equity, 38. 2. Ludlam v. Ludlam, 31 Barbour, N. Y., 486. 3. Brown v. The U.S., 5 Ct. of CL, 511; Beavers v. Smith, 11 Ala., 420. 4, State v. Adams, 45 Iowa, 99. In this case the father of the person whose status was in question, being a citizen of the United States, went to Canada, intending to make it his permanent home, and, after some years, during which the person in question was born, died there. Held that this case was within the rule that, ordinarily, the citizenship of the child is determined by that of its father. “By the common law,” said the court, “allegiance is not a matter of individual choice. It attaches at the time and on account of birth, and under circumstances in which the family owe allegiance and are entitled to protection, A person may be domiciled in one place or country and owe allegiance to and be a citizen of another.” Citing Calais v. Marshfield, 30 Maine, 411; Peck vy. Young, 26 Wendell, 612; Inglis v. Trustees, etc., 6 Peters., 99. ALIENS—NATURALIZATION. 195 his intention, after having been here the proper time, but died before receiving his certificate of naturalization.1 The inchoate citizenship created in the parent by the declaration of intention, is thus transmitted to the child, and ripens into a perfect citizenship with the attainment of his majority. On the other hand, a child born within the allegiance of the United States, is a citizen thereof, without refer- ence to the political status or condition of its parents,? and it has been accordingly held that the child of aliens born during their temporary sojourn in this country is a citizen of the United States. In a New York case it was held, that a native of Holland who, after being in this country nine years, re- turned to Holland, remained there six years and was married there, and then returned to this country and was employed continuously for fifteen years in the American merchant service may, having declared his in- tention at the proper time, be naturalized, though he has a wife and family at his place of birth; the wife re- fusing to follow him to this country. The principle upon which this decision was rested, was that a vessel is part of the territory of the government to whose jurisdic- 1, Schrimpf v. Stettegart, 38 Texas, 96. But see Beardstown v. Virginia, 76 Illinois Rep., 34. Where a person of foreign birth, who was a minor when he came to this country, testified that he had never been naturalized, and did not know that his father had been—held, that this afforded prima facie evidence that such person was not entitled to vote. 2. McKay v. Campbell, (supra.,) 2 Sawyer (Nevada), 118, 8. Munro v. Merchant, 26 Barbour, 383. 196 SUFFRAGE AND ELECTIONS. tion she is subject, and that five years continuous em- ployment upon the vessel of a nation is equivalent to such a residence upon the land as is required by the naturalization laws.? In Ex parte Scott, 1 Daly, 524, it was held that an alien who came to this country with his parents at the age of three years, and lived with them in the city of New York until their death, when he shipped as a seaman in an American vessel, and for seven years thereafter was employed exclusively as a mariner in the merchant ser- vice of the United States, has such a residence as entitles him to naturalization. But where an alien came to this country when he was thirteen years of age, and resided here until he was twenty-three, when he returned to Ireland, the place of 1. 2 Daly’s N. Y. Rep., 525, in nratter of Thomas Bye. “ We have re- peatedly held that a mariner of foreign birth, who has been employed exclusively in American vessels for five years continuously prior to his application to be admitted a citizen, and who, for the last year of that term, has shipped only in vessels belonging to the port of New York, is, within the meaning of the naturalization laws, to-be deemed a resident during that term of the United States and a resident of this state for one year, unless there are circumstances which show that he has maintained and kept up a previous residence. (In the matter of Scott, 1 Daly, 534; In the matter of Hawley, Ib., 531; Dunlap’s Laws of the United States, 307, 493, 494, 1167; Story’s Conflict of the Laws, Secs. 42 to 48.) A foreigner, continuously and exclusively employed in the vessels of a nation, may, by length of time, acquire a residence in that nation as effectually as though he had remained upon the land within its boundaries; for vessels are subject to the jurisdiction of the country to which they belong, and, for certain purposes, are regarded as part of its territory; as in the case put by Vattel of a child born in the vessel of a nation upon the high seas, which, he says, may be reputed to be born in its territory. (Vattel, B 1, Ch. 19, Sec. 216, and see Lawrence’s Wheaton, p. 209.) ALIENS—NATURALIZATION, 197 his birth, to see his father who was ill, and remained there for seven years working as a mechanic, it was held that he had lost his residence in this country, though he may have intended to return, and could not be naturalized, though he had declared his intention to become a citizen, until he had lived in this country continuously for five years after his return. (Jn the matter of Hawley, 1 Daly, N. Y., 581.) The judge ren- dering judgment said that as when Hawley left this country for Ireland, he no doubt intended to return here, and as he went there in consequence of the illness of his father, and probably contemplated nothing more than a temporary absence, had it been merely a visit to see his parents, and had he returned to this coun- try within what would have been deemed a reasonable time, under the circumstances, in view of the intention he expressed when leaving, the case might have been re- garded as one of continuing residence never abandoned. But he was absent for seven years, and it appeared that during a portion of that time he worked as a mechanic in Ireland, as he had done in this country. This last circumstance, coupled with his long absence, was con- sidered decisive upon the question of residence. Where a person of foreign birth alleged to be illegiti- mate, came to this country as a member of the family of his putative father, whose wife was his mother, and the reputed father was naturalized while the alleged illegiti- mate child was yet a minor, it was held that as the child was yet an infant at the time of the reputed father’s nat- 198 SUFFRAGE AND ELEcTIONS. uralization, he became, by virtue of the act of congress, naturalized, and that the question of his illegitimacy would not be inquired into in a proceeding to contest his election.} The mode of acquiring citizenship by naturalization is fully prescribed by acts of congress, in which the power exclusively resides, providing that aliens may he ad- mitted to citizenship. These acts require, as the first step by an alien, that he shall declare on oath before a circuit or district court of the United States, or a district or supreme court of the territories, or a court of record of any of the states having common law jurisdiction and a seal and clerk, two years at least prior to his admission, that it is bona fide his intention to become a citizen of the United States,? and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which the ‘alien may be at the time a citizen or subject. This declaration, on application for what are commonly called the first pa- pers, may be made at any time after the arrival of an alien in this country, but two years -must intervene be- tween the declaration and the final admission, which latter cannot take place, however soon the declaration may be made, until five years after arrival in the coun- try. In case the alien applying to be admitted to citi- zenship has borne any hereditary title, or been of any of 1. Dale v. Irwin, 78 Illinois Rep., 170. 2. Cumming’s petition, 41 N. H., 270. ALIENS—NATURALIZATION. 199 the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above re- quisites, make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in that court. The evidence of the declaration and of the time that has intervened are the papers obtained at the time. Upon the application for final admission it must be made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least,1 and within the state or territory 1. There must have been a continuous residence of five years on the part of the applicant in the United States, and one year in the state or territory, immediately preceding the application, before he can be admitted to citi- zenship. Temporary absence, either on business or pleasure, is permissi- ble. The proof as to residence must be the affidavit of some person other than the applicant, who can swear of his own knowledge that the appli- cant has resided in the state and United States during the required time. The term “continued term of five years at least next preceding the pres- ent time,” has been construed to mean such a continued residence as has not been broken by a permanent absence ; but it has been held that an ab- sence in Europe for three years for the purpose of being educated was not such an absence as would be in conflict with the requirements of the stat- ute. But an absence on the part of the applicant, accompanied by his family, for the purpose of pursuing his business avocation in another coun- try, will necessitate a further continued residence for five years, although his residence abroad may be for a very limited time. If the intention in going abroad be to take up his residence where he is going, then he re- nounces his intention of remaining here, although he may have made his declaration of intention to become a citizen. As to residence in the state, that must be for one year continuous, immediately preceding the applica- tion ; and any temporary residence in another state during this time will deprive the applicant of his right to be admitted. As, for example, if the applicant would have been entitled to his certificate of citizenship on the lst day of May, 1877, and on the Ist day of April, 1877, he were to enter into business in a neighboring state, and remove thither, he must necessa- rily remain in that state until the 1st of April, 1878, before entitled to his hy 200 SUFFRAGE AND ELECTIONS. where such court is at the time held one year at least: and that during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence. The applicant for admission, having complied with the foregoing requisitions before one of the courts above spe- cified, must declare on oath that he will support the con- certificate, as the residence must be for one year positively. Of course tem- porary absence, such as spending the summer in the country, or a trip even to foreign lands, is not such an absence as would deprive the applicant of his right. The oath of the applicant shall in no case be allowed to prove his own residence. This fact must be proven to the satisfaction of the court by other testimony than that of the applicant. Anon, 7 Hill, N. Y., 137. But actual residence on land is not necessary during the five years. Con- tinuous employment on an American ship is residence sufficient for natu- ralization, the alien having come to this country, intending to remain, de- clared his intention, and then shipped on a vessel subject to the jurisdic- tion of the United States. Matter of Thomas Bye, 2 Daly, N. Y. Rep., 525, ante. 1. The applicant must have behaved as a man of good moral character during all the time he has been in the United States, and not merely the five years preceding the application. Good reputation is not enough. His conduct must be such as comports with good character. In re Spencer, U.8.8.C., Oregon Law Report, vol. VI., 1878. The court says: “In other words, he must have behaved—conducted himself as a man of good character ordinarily would, shonld, or does. Character consists of the quality which constitutes the individual; reputation the sum of the opin- ion concerning him. The former is interior; the latter external. The one is the substance; the other the shadow.” 8 Barb., 603; Ex parte Douglas, 2 Bright. Fed. Dig. 25; Ex parte Sanberg, 5 West, Jr., 171; Bouvier’s Dic., Verba Behavior; 2 Blackstone, 251, 256; 4 Sawyer, 213. The fact of good moral character must be proved by other testimony than that of the applicant himself. Matter of Clark, 18 Barb., N. Y., 444. ALIENS—NATURALIZATION. 201 stitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state or sovereignty of which he was before a citizen or subject, which proceed- ing shall be recorded by the clerk of the court. An exception is made to the foregoing rules in the case of any alien of the age of twenty-one years and upward, who has enlisted or may enlist in the armies of the United States, either the regular or volunteer forces, and has been or may hereafter be honorably discharged. All such are admitted to become citizens of the United States upon petition, without any previous declaration of intention to become such; and shall not be required to prove more than one year’s residence within the United States previous to the application ; and the court admitting shall, in addition to such proof of residence and good moral character, as now provided by law, be satisfied by competent proof of such persons having been honorably discharged from the service of the United States.? 1, The application under this section is made by petition showing the age, enlistment and discharge of the alien, which petition must be verified in open court. The certificate of discharge is, of course, the most com- petent proof for the court of the fact of an honorable discharge, but should the certificate be lost, as is sometimes the case, the fact of such honorable discharge may be proven to the satisfaction of the court by other docu- mentary evidence, obtainable in most cases from the adjutant general’s office in Washington, or chief of the pension bureau, coupled with such affidavit or affidavits as the court may require as to the identity of the applicant.—THe phrase “armies of the United States” in the act of con- gress, permitting any alien who has enlisted in the armies of the United States to be naturalized withont previous declaration of intention, does not include the marine corps. Re Bailey, 2 Sawyer, 200. 202 SuFFRAGE AND ELECTIONS. A record of naturalization, made by a court of compe- tent jurisdiction, cannot be impeached in a collateral pro- ceeding, by showing by parol evidence, that the prelimi- nary steps required by law to procure it, were not taken,’ but it may be for fraud, as naturalization certificates fraudulently issued, without the order of the court, con- fer no right. It is competent to show that the parties were not within the jurisdiction of the court. In the Contested Election Cases of 1868, 1 Brewster, 183, 270, it was held, not only that a certificate of natural- ization, in due form and properly attested, is sufficient evidence, in the first place, that the individual named in it was duly examined and sworn in open court, in the presence of some of the judges, that the certificate was regularly and lawfully issued, and that it could not be collaterally attacked, but that those who asserted that it was not issued according to law, must prove their allega- tion. “The seal of the court is conclusive unless the certificate has been obtained by fraud.” (Commonwealth v. Paper, 1 Brewster, 263.) This subject was fully considered in the case of The Acorn, 2 Abbott's U. S. Reports, 434. The ship Acorn was 1. People v. McGowan, 77 Illinois, 644. Quo warranto to test the right of the defendant to hold office. Allegation that he was an alien and inelig- ible. Plea that he was naturalized. Replication, nul tiel record, under which it was attempted to show, by parol testimony, that previous to naturalization he had not complied with the requirements of the naturali- zation laws, as to declaration of intention, &c. Evidence ruled out, and held that the record of naturalization imports verity, and can only be im- peached for fraud or want of jurisdiction in the court issuing it. McCrary on Elections, 3 321, 457. ALIENS—NATURALIZATION. 203 libelled, one of the alleged grounds of forfeiture being, that the owner had sworn falsely as to his citizenship. For the purpose of sustaining the allegation that the owner was not a citizen of the United States, as alleged in his oath of enrollment, testimony was introduced on behalf of the United States, tending to show that for several years previous to the year 1866, (the year in which the vessel was enrolled,) he had resided in Canada. To meet. the case thus made against him, he produced an exemplified copy of the record of his naturalization, which was admitted without objection, but on the final ar- gument, counsel for the United States took the following exception to its sufficiency :—“ That the preliminary pro- ceedings necessary to give the naturalizing court jurisdic- tion, viz: the petition, declaration of intention and oath of allegiance, are not proven.” It was recited in the record’ that such proceedings were had, but it was contended that such recitals were not evidence, but that the proceedings themselves should have been proven. On this point the court said, “It is-doubtful whether this objection does not come too late, but even if in time, the weight of authority is decidedly against the position that such preliminary proceedings must be proven, and I see no reason for holding otherwise in this case. See Ritchie v. Putnam, 13 Wend, 524-6; Stark v. Chesapeake Ins. Co., 7 Canada, 420.” It was also contended on the part of the United States that, inasmuch as the order of naturalization could be made only on proof of continuous residence in the 204 SUFFRAGE AND ELECTIONS. United States for five years immediately preceding, it must, in this case, in view of the evidence on behalf of the United States above mentioned, have been made upon false testimony as to the fact of such residence. This presented the question—Is the order admitting an alien to citizenship conclusive as to the requisite length of residence in the United States, or is that question open to inquiry collaterally? The court held that it was con- clusive.1 1. By the court: “The proceeding to obtain naturalization is clearly a judicial one. A hearing is required to be had in open court, and the right can be conferred only by the judgment of the court, and upon satisfactory proof, It therefore has all the elements of a judgment. That it has the character and attributes of 2 judgment, and is equally conclusive, the authorities are entirely uniform. See Spratt v. Spratt, 4 Peters, 393, 407; McCarthy v. Marsh, 5 N. Y., 263, 279, 284, and authorities cited; inre An Alien, 7 Hill, 137-8; in re Clark, 18 Barb., 444; Ritchie v. Putnam, 13 Wendell, 524-6. “The distinction between cases in which judgments may and those in which they may not be impeached collaterally, as derived from the autho- rities and founded in common sense, may be stated thus: They may be impeached by facts involving fraud or collusion, but which were not before the court or involved in the issue or matter upon which the judgment was rendered, They may not be impeached for any facts, whether involving fraud or collusion, or not, or even perjury, which were necessarily before the court and passed upon. “See McCarthy v. Marsh, 5 N. Y., 284; Mason v. Messenger, 17 Iowa, 261, 272; White v. Merrit, 7 N. Y., 352, 355 ; Sidensparker v. Sidenspar- ker, 52 Maine, 481, 489; Parkhurst v. Sumner, 23 Vt., 538; Lewis v. Rogers, 16 Pa., 18, 21; Warburton v. Aken, 1 McClean, 460; Demertt v. Lyford, 7 Fort, N. H., 541, 546, 549; Dilling v. Murray, 6 Indiana, 324; Peck v. Woodbridge, 3 Day, 30, 36; Homer y. Fish, 1 Pick., 435, 439, 441; Smith v. Lewis, 3 Johns., 157, 168; Smith v. Lowry, 1 Johns. Ch., 322, 324. “Tt was objected on the argument on behalf of the United States, that the record shows that the oath of the applicant was allowed to prove his residence, contrary to the express provision of the naturalization laws, and ALIENS—NATURALIZATION. 205 Where an alien born has voted at an election, his naturalization and the consequent legality of his vote will be presumed until prima facie evidence is given of his want of naturalization.! ‘It is not necessary that the declaration of intention shall be made before the same court which afterwards admits the alien to citizenship. This declaration may be made before any of a great number of courts and in any state or territory. Neither must it be made before a court of the state or place in which the declarant resides, has resided, or intends to reside. The admission to citizenship may, therefore, as well be founded on the preliminary declaration made in another court as if it were made in the court where the final decision is ren- dered.2 The contrary doctrine had been previously held in South Carolina.® that the record is, therefore, a nullity. The record states as follows: ‘And it appearing to the satisfaction of ‘the court, as well as the oath of the said applicant, as from the testimony of Charles Old and Jesse Coe,’ and then follows a statement of all the prerequisites to naturalization, viz.: resi- dence, good moral character, attachment to the principles of the constitu- tion, &e. The oath of the applicant is prohibited by the act only as to his residence. By implication, therefore, such oath may be allowed to prove any of the prerequisites other than that of resideace; and the court will, in support of the validity of this record, refer such oaths to such prere- quisites only as could be lawfully proven by it, and will presume that the finding of the court, as to the residence of the applicant, was based upon the other testimony mentioned in the record, and not upon the oath of the applicant. It is a well settled rule that, when a record or other writing admits of two constructions, one of which will give it force and validity, and the other of which will render it a nullity, the court will adopt the former. I hold, therefore, that the objection is not tenable.” 1. People v. Pease, 30 Barbour, 588. 2. McCarthy v. Marsh, 5 N. Y. Rep., Ct. of Appeals, (Selden) pp. 280-81 3. Vaux v. Nesbit, 1 McCord, (Ch.) B., 366. 206 SUFFRAGE AND ELECTIONS. Aliens who come to the United States before their eighteenth year, and who reside here from their eigh- teenth to their twenty-first birthday, may, after complet- ing a five years residence, (including the three of min- ority) be naturalized without making the preliminary declaration, but they must make the usual declaration required at the time of admission, and prove an intention for two years’ previous to become citizens.? The case of Spragin v. Houghton, 3? Illinois, 377, ante, decided that, naturalization being inessential as a quali- fication for suffrage, and “inhabitant” not meaning “ citi- zen,” an unnaturalized alien could vote under the state constitutional provision permitting all inhabitants to ex- ercise the rights of electors. In accordance with this doctrine, that inhabitants and citizens are not terms of the same meaning, it has been held in Pennsylvania that alien residents are qualified to hold borough offices where the law conferred the franchise upon the inhabi- tants of the borough who had resided therein for one year and paid the borough tax.2 The doctrine on which this is based is, however, denied in Massachusetts.? In a Wisconsin case it was held that, although citizen- — ship is necessary to eligibility, and although the candi- date voted for is disqualified by reason of alienage at the time of the election, he may, if he received a majority, 1, State ex rel. Brown v. McDonald, (Sup. Ct., Michigan;) 1 N. W. Reporter, 133; 5 Central Law Journal, 227, 228. 2. Stewart v. Foster, 2 Binney’s Pa. Rep., 110. 3. Harvard College v. Gore, 5 Pickering, 370; Opinion of Judges, Cush. Elect, Cas., 120; Case of Malden, Cush. Elect. Cas., 377. ALIENS—NATURALIZATION. 207 take and occupy the office if, before the commencement of the term, his disqualification is removed by naturali- zation.1 An alien becomes instantly, upon being naturalized, a citizen of the United States and of the state, and has the right to vote at the election occurring immediately after if he has the necessary qualifications as to residence. (Morgan v. Dudley, 18 B. Monroe, 693 ; Wood v. Fitzgerald, 3 Oregon, 568, supra.) 1. State ex rel. Schuet v. Murray, 28 Wisconsin, 96. ‘“ We have already seen that the grounds upon which a person not an elector is excluded from holding public office is, that the powers and functions of a free and inde- pendent government must be exercised by those by whom such government was intended, that is, by the electors thereof. So if a person who is not an elector attempts to exercise the functions of a public office, the courts, upon proper proceedings being instituted for that purpose, will oust him. ‘This is one thing. But to hold that a person qualified to hold such office when the term for which he was elected commences, is disqualified merely because he was not an elector when he was elected two months before, is another and very different thing. What, then, is the nature and effect of the disqualification under consideration? In my judgment, it is that a per- son who is not an elector only because of some disqualification which he has the power to remove at any time, is thereby rendered ineligible to. be elected to a public office for a term which is to commence at a future time, but it is that a person thus disqualified shall not be eligible to hold such office. Such disqualification does not relate to the election to, but to the holding of the office. (Quoting Cushing’s Law and Practice of Legislative Assem- blie=, Sec. 78.) It has been argued that the logical result of these views, would render minors or persons who have not resided in this state one year, at the time of an election, but who, in all other respects, are qualified electors, eligible to be elected to public office, in all cases where such minors become of age, or such persons complete a residence of one year in the state before the commencement of the term of office to which they may have been elected. In my opinion the argument is sound, and I think that persons elected to public offices under such circumstances, may lawfully hold the same. In other words, I’tHink that in those cases, as in this case, the disqualifi- cations relate to the holding of the office, and not to the election thereto. 208 SUFFRAGE AND ELECTIONS. Citizenship once entered upon, the duties it imposes, or the rights it secures, cannot be either renounced or relinquished by the act of the party himself. In Wynn . v. Morris, 16 Ark., 414, 426, it is held that becoming an adopted citizen of a foreign government does not work a forfeiture of any rights vested in one by law while a citi- zen of the United States, though he afterwards leaves this country and takes an oath of allegiance to foreign gov- ernment with intent and effect to expatriate himself. The general doctrine is declared in Shanks v. Dupont, 3 Pet., 246, to be that “no person can, by any act of his own, without the consent of the government, put off his allegiance and become an alien.” CuHapTer X. ——__ ____ LIABILITY OF ELECTION OFFICERS. The courts are not entirely in accord as to the extent of liability to which election officers may be held for re- jecting the ballots of legal voters. The weight of author- ity, however, is to the effect that, to make such an officer liable, malice must be alleged and proved, and that an action will not lie for a mere error of judgment. This was the ruie laid down in Jenkins v. Waldron, 11 Johns. N. Y., 114, by the Supreme Court of New York, in con- formity to the decisions of most of the states in this country and in England. The contrary doctrine is held in Massachusetts, and not without some show of reason, and in Ohio with some qualification. Jenkins v. Waldron was a suit brought for the rejection of the plaintiff’s vote by the defendant, acting as an elec- tion officer. It was neither alleged nor proved that the inspectors fraudulently or maliciously refused the vote, and this the court considered “absolutely necessary to the maintenance of an action against the inspectors of an election.” (Wickerly v. Geyer, 11 8. & R. (Pa.), 138.) They had no doubt that “ malice is an ingredient with- out which the action cannot be supported,” and malice was defined as “the refusal of a vote from improper 14 210 SUFFRAGE AND ELECTIONS. motives and contrary to the inspector’s own opinion.” It is not necessary that this should be expressly proved ; the jury may infer it from circumstances. A public officer. though not strictly a judicial officer, whose duties necessarily demand an exercise of judgment, is not liable to an action, provided he act with purity and good faith. That he is responsible if he,act wilfully and maliciously, was decided by the English House of Lords in the case. of Ashby v. White, 1 Bro. P. C, 49, and has been held for law ever since. See also Moran v. Bennard, 3 Brewster, Pa., 601; Com- monwealth v. Sheriff, 1 Brewst., 183; Comm. v. Lee, Ibid, 272; U.S. v. Gillis, 2 Cranch C. C., 44; 2 Peckwell, 17, 29; Cullen v. Morris, 3 Stark., 506 ; State v. McDonald, 4 Har- rington, Del., 65 ; State v. Porter, [bid, 556; State v. Smith, 18 N. H., 91; State v. Daniels, 44 N. H., 3888; Carter v. Harrison, 5 Black, Ind., 138 ; State v. Robb, 17 Ind., 586 ; Peavey v. Robbins, 3 Jones (N. C. Law), 339; Anderson ». Baker, 23 Md., 531; Miller v. Rucker, 1 Bush., Ky., 135; Rail v. Potts, 8 Humphrey, Tenn., 228. The case of Rail v. Potts and Baker was an action in which the defendants were sued for preventing the plain- tiff from voting at an election in which they acted as judges. The jury found that the defendants had acted in good faith, excluding the plaintiff’s vote because they honestly believed he was not entitled to vote. Judg- ment was accordingly entered for the defendants, and an appeal taken. The question considered on appeal was the same as in the foregoing cases—whether the judges Liapitity or Exvection Orricers. 211 of an election are responsible in damages for refusing to receive the vote of a legally qualified voter, they at the time not being actuated by any fraudulent, corrupt or malicious intention, but acting in good faith and giving their judgment upon the honest conviction that he was not at the time entitled to vote. It was held, as in the decisions already cited, that the judges of election are judicial officers, and, like other judicial officers, are not liable for damages for mere errors of judgment in the discharge of their duties. Their conduct must be cor- rupt and malicious, to subject them to an action.t The same doctrine is held in Maryland, in Bevard v. Hoff- man,” Caulfield v. Bullock,? and in Morgan v. Dudley,* the court, in the last case laying down the broad and gene- ral doctrine that no judicial officer, however low his grade as such, is liable to suit for a judicial opinion, however erroneous it may be, if it be not influenced by improper motives.® 1 Rail v. Potts and Baker, 8 (Humphrey’s) Tennessee R, 225. 2. Bevard v. Hoffman et al., 18 Maryland, 479. 3. Caulfield v. Bullock, 18 B. Monroe (Kentucky), 494. 4, Morgan v. Dudley, 18 B. Monroe (Kentucky), 693. 5. Morgan v. Dudley, 18 B. Monroe (Kentucky), 693. The court said: “Tt is undoubtedly true, as a general principle, that whenever a right is violated, the law provides a remedy for the injury. But this, like all other general rules, is subject to exceptions. From the very nature of a judicial tribunal its action must be necessarily, in some degree, exempted from the operation of this principle. Every erroneous decision viokates some right and works an injury tosome party. But as every human tribunal is liable to err, no judge, even the most inferior one, should be held responsible for a mere error of judgment, committed by him in the regular discharge of the duties of his office. * * * No action ought, then, in principle, 212 SUFFRAGE AND ELECTIONS. The doctrine in Massachusetts is that, while, in the ab- sence of corrupt motive, the election officer is not liable to criminal prosecution for depriving a citizen of his vote, a civil action will lie without regard to malice.! In United States v. Gillis et al., the attorney for the United States, observing that it had been intimated by the court that prosecutions of judges of elections could not be supported, unless a corrupt motive were charged and proved, said, that if such were the opinion of the court, he would enter a nolle prosequi; the court said that such was their opinion, and the prosecutions were accordingly abandoned.? ‘ The weight of authority is decidedly in favor of the doctrine that a judge of election, in the performance of his duty, acts judicially; and is only answerable for acts done corruptly or maliciously. to be maintainable against the judges of an election, whose functions are to some extent judicial, for refusing to receive a vote, without alleging and proving that, in so acting, they were influenced by bad motives, and decided contrary to their own honest convictions of what was right and proper.” 1. Lincoln v. Hapgood, 11 Mass., 350. Said Chief Justice Parker: “The decision of the selectmen is final and conclusive as to the existing elec- tion; no means are known by which the rejected vote may be counted by any other tribunal, so as to have its influence upon the election; or, at least, no practice of that kind has ever been adopted in this state. There is, therefore, not only an injury to the individual but to the whole commu- nity; the theory of our government requiring that each elective officer shall be appointed by a majority of the votes of all the qualified electors, who choose to exercise their privilege. Now if a party duly qualified is unjustly prevented from voting, and yet can maintain no action for so im- portant an injury, unless he is able to prove an ill design in those who ob- struct him, he is entirely shut out from a judicial investigation of his right, and succeeding injuries may be founded on one originally committed by mistake.” 2. U.S. v. Gillis et al., 2 Cranch, C. C. Rep., 44. LIaBILITy oF Erection OFFIcers. 213 The case of Zeiler v. Chapman, went so far as to decide that a rejection of registered voters by the judges of an election will be presumed to have been made rightly until the contrary is shown. Pike v. Magoun, decided that registering officers are not liable in damages for erroneously refusing to register a voter, but that they are for corrupt or malicious refusal.2 And Elbin v. Wilson, applies the same test to election judges who refuse to receive the ballot of a registered voter. There are several cases in which a distinction is drawn between criminal prosecutions and civil suits against an election officer for rejecting the vote of a qualified elec- tor, and holding that, in suits of the latter character, malice nor corruption need not be proved in order to maintain an action. It was very justly observed by the court, 1n Lincoln v. Hapgood, supra, that the decision of the election officer being final and conclusive, an injury is done not only to the individual but to the whole com- munity, when a lawful vote is shut out, the theory of our government requiring that a majority of qualified citizens, choosing to exercise the privilege of voting, shall elect, and unless a citizen obstructed in the enjoyment of the right can maintain his action without proving 1. 54 Missouri, 502. 2. 44 Missouri, 492. 3. 33 Maryland Reports. 4, Killiam v. Ward, 2 Mass., 236; Henshaw v. Foster, 9 Pick., 312; Gates v. Neal, 23 Pick., 308; Jeffries v. Anthony, 11 Ohio, 372; Arderson v. Milliken, 9 Ohio St. R., 568; Gillespie v. Palmer, 20 Wis., 544. . 214 SUFFRAGE AND ELECTIONS. malice, he may be entirely shut out from judicial inves- tigation. It is impossible to look into the human breast to explore motives and intentions, and, in the absence of any circumstance from which motive may be inferred, it cannot be proved. In criminal prosecutions, malice being a necessary ingredient of the crime, proof of it is necessary, but the injury to the right of suffrage is com- plete when the voter’s ballot is rejected, whether done with malice or not. In Gates v. Neal,! the court said, that without the right to maintain an action, irrespec- tive of malice, “a voter might oftén be refused his priv- ilege upon slight and frivolous grounds, but yet under such circumstances as to render it difficult, if not im- possible, to prove actual malice in the officer superin- tending the elections.” In Blanchard v. Storms, 5 Metcalf, 298, the court, while adhering to the doctrine of the other Massachusetts cases, ruled that, in an action against an election officer, _ the plaintiff must prove, asa part of his case, that he furnished the defendant with evidence that he was a legal voter before his vote was refused. This rule of evidence, making proof from which wilfullness on the part of the election officer may be inferred, necessary: to the maintenance of an action, is a near approach to the doctrine held in the majority of states, and shows a tendency in that direction by the court which originated _ the opposite doctrine. 1. Supra. Cuapter XI, BRIBERY AND CORRUPTION. Bribery as a Cause for Disfranchisement. It is the design of the elective system, and essential to its successful operation, that elections shall be pure as well as free, and legislative ingenuity has been exhausted in devising laws to prevent and punish all practices in- tended or having a tendency to make the ballot express anything but the independent, untrammeled and honest opinion of the voter. That these laws are evaded, and that corruption in its various forms is a growing evil, is not the fault of the framers of our state constitutions, of legislators, or of the courts. The constitutions of several of the states contain pro- visions making bribery a cause for disfranchisement,— the severest penalty that can be visited upon a freeman,— or empowering the legislature to do so, which power has in most cases been exercised. The reader is referred to the chapter on state constitutions, in which he will find clauses providing that conviction for bribery shall or may forfeit the right of an elector in the following states: . Alabama, (Ante page 59); California, (page 49); Con- 216 SUFFRAGE AND ELECTIONS. necticut, (page 25); Delaware, (page 37); Florida, (page 68); Georgia, (page 52); Kansas, ( page 36); Kentucky, (page 58); Louisiana, ( page 56); Maryland, ( page 39); Mississippi, (page 58); Missouri, (page 46); New Jersey, (page 30); New York, (page 27); Ohio, (page 31); Oregon, (page 34); Pennsylvania, (page 41) ; Rhode Island, (page 20); Tennessee, (page 54); Texas, (page 66); Virginia, (page 43); West Virginia, (page 61.) In the states in which the legislature is not empowered to make disfranchisement the penalty for bribery, there are statutes making it a misdemeanor, punishable by fine and imprisonment. Some of these laws are remark- able for their comprehensiveness in defining of what bribery shall consist, and all of them include every in- direct inducement, in the way of gift or promise of reward, and every manner of influence which operates upon the ambition, greed or appetite of the voter, as within the definition of bribery. In most of the states a conviction for bribery disquali- fies from holding any office of honor, profit or trust. In states where this is not imperative, it is provided by statute that any candidate who is guilty of bribery shall forfeit the office. Kansas, Ohio, Wisconsin and Penn- sylvania are examples. In the last named state the constitution provides, that any candidate for office who commits bribery, shall be disfranchised for four years. Others guilty of the offence, upon being challenged, lose the right to vote at the election which the bribery was intended to affect. BRIBERY AND CORRUPTION. 217 To preclude the voter from having any other than a public interest in the result of an election, betting upon it, or making any contingent gain or loss, advantage or disadvantage dependent upon the result, is forbidden and is discountenanced by the courts. A case in 36 Wisconsin Reports illustrates the extent to which the courts go in discountenancing all appeals to the cupidity of voters collectively as well as individu- ally. After the salary of a county judge had been fixed by the board authorized by law to regulate it, a candi- date for the office. published and circulated a promise addressed to the electors of the county, that, if elected, he would perform all the duties for a less sum than had been named. He received a majority. There was a con- test for the office. The court held that the offer to accept for his own use less than the legal fees attached to the office, made for the purpose of influencing votes at the election, invalidated the title to the office. (State ex rel, Newell v. Purdy.) The court said: “Hawkins, in his treatise on the Pleas of the Crown, after defining the term bribery, when used in a strict sense, that is, as descriptive of a crime, proceeds thus: ‘Also bribery sometimes signifies the taking or giving of a reward for office of a public na- ture. And certainly nothing can be more palpably pre- judicial to the good of the public than to have places of the highest concernment, on the due execution whereof the happiness of both king and people doth depend, dis- posed of, not to those who are most able to execute them, 218 SUFFRAGE AND ELECTIONS. but those who are most able to pay for them; nor can anything be a greater discouragement to industry and virtue, than to see those places of trust and honor which ought to be the reward of those who by their industry and diligence have qualified themselves for them, con- ferred on such as have no other recommendation than that of being the highest bidders; neither can anything be a greater temptation to officers to abuse their powers by bribery and extortion and other acts of injustice than the consideration of the great expense they were at in gaining their places, and the necessity of sometimes straining a point to make their bargains answer their expectation.’ (Vol. I, chap. 27.) Again the same learned author says: ‘It is of the utmost importance to the pub- lic welfare, that, in the administration of the govern- ment, none but persons competent to perform the duties of their offices should be admitted to any department. But if the sale of offices were allowed to those who have the patronage and appointment, it is evident that there would be the greatest danger of situations being filled, not by those whose talents fitted them for the station, but whose purses enabled them to obtain it. The sale of offices may, therefore, justly be ranked as an offence against the political economy of the state. (Book I, chap. 82, page 748.) It will thus be seen that the sale and purchase of an office is considered as a kind of bribery. The effect of bribery, by the rules of the common law, independently of any constitutional or statutory provi- sion on the subject, is thus stated by Lord Glenberine, in BRIBERY AND CORRUPTION. 219 his note on the case of St. Ives, 2 Election Cases (Doug.), 403: ‘It is essential to the very idea of election, that it should be free.’ ” After quoting several authorities the court adds: “The doctrine which we think is established by the foregoing authorities, and which we believe to be sound in principle, is that a vote given for a candidate fora public office in consideration of his promise, in case he shall be elected, to donate a sum of money or other valuable thing to a third party, whether such party be an individual, a county, or any other corporation, is void. The power to reject such vote is not vested in the election canvassers, but is vested in the court which is called upon to determine judicially the result of the election.” To the same effect is a case decided very recently in the Iowa Supreme Court, in which it is held, that a promise by a candidate to pay into the public treasury, if elected, a part or all of his compensation, is within the meaning of the statute, an offer of a bribe to an elector, that will disqualify the former from holding the office.? The same doctrine was affirmed in Missouri in a late case, in which the court remarks: “The transaction of which the state in the present case compiains may have been entered upon with laudable motives, but it is, as we think has been successfully shown, decidedly de- moralizing in its tendencies, and utterly subversive of the plainest dictates of public policy. The maxim in 1. Per Adams, J., Supreme Court of Iowa, April, 1880. 220 SuFFRAGE AND ELECTIONS. such cases should be obsta principiis, and itis only by a rigid observance of which, by the courts, that the purity of elections can be preserved.”? This is most salutary doctrine. Svuciety cannot afford to do violence to the moral of its own laws, as it would be doing if those whose duty it is to administer its laws were to allow any direct appeal to the pecuniary interests of taxpayers to be successful in securing a pub- lic office. Bargains to Influence Voters. The courts refuse to‘enforce, as against public policy and tending to corrupt elections, all bargains to influ- ence elections or to secure nominations. The case of Strasburger v. Burk, Am. Law Reg., N.S, 607, applied the doctrine to primary elections. The plaintiff sued to recover money expended at the request of the defendant to influence a primary meeting in the selection of delegates. The court held that he could not recover, saying that “it is equally injurious to the public whether a man sells his influence with the voters ata primary election or at a legal election, and it is equally corrupting to voters whether they are treated to beer and cigars to influence their votes at a primary election or at a legal election.” Nicholls v. Mudgett, 32 Vermont Rep., 546, is to the same 1. The State ex rel, Attorney General vy. Collier, Supreme Court of Missouri, April, 1879. BRIBERY AND CoRRUPTION. 221 effect. The action was in debt. The defendant admitted that he had been indebted to the plaintiff, but alleged that they had entered into an agreement by which, in consideration of his giving his influence to the plaintiff, who was a candidate for office, and of his being elected, the debt was- to be discharged; that he had given his influence and that the plaintiff was elected. The court held that the agreement was void, and that the debt was not discharged. The opinion of the judge says: “It is not claimed but that such an agreement is immoral and void. It is only claimed that they did not in express words say that the defendant should vote for the plaintiff. Although nothing was said about the defendant’s vote, yet the meaning was unmistakable. Men who enter into cor- rupt bargains are not to be expected to speak out in plain language the name of the criminal act which they are about to commit. “The bargain was not only the sale of the defendant’s vote, but also of his influence and exertions against his convictions and opinions. The defendant generally voted for the candidate of the other party, and but for this agreement would not have voted for the plaintiff nor favored his election. This also was immoral and against public policy. Every voter is bound to use his influence to promote the public good, according to his own honest opinions and convictions of duty. If for money or other personal profit he agrees to cast his influence against what he believes to be for the public good, he is corrupt 222 SUFFRAGE AND ELECTIONS. and the agreement void, even though in the actual exer- cise of his influence against his conscience he resorts.to no unlawful means. Such bargains cannot be enforced by law. Another reason why they cannot be enforced is, not only because they are made criminal acts by statute, or are opposed to the provisions of the constitution, but because of their own inherent turpitude, because they are corrupt and corrupting, because they are destructive to public virtue and the welfare of the community.” Invalidity of Election Contracts. ° The case of Jackson v. Walker, is a notable example of the firmness with which the courts have set their faces against all indirect devices for corruptly influencing elections. Suit was brought to recover a sum alleged to have been promised to the plaintiff by the defendant if he would suffer a certain log cabin to remain and be kept open for the benefit of the whig party. The log cabin was kept open to promote the election of the whig electoral ticket. The Supreme Court on error held that the contract was illegal, being within the mischief at which the statute to preserve the purity of elections is levelled, and there was judgment for the defendant. (5. Hill, N. Y. Sup. Ct. Rep., 27.) “Jt is said that the statute only forbids the contribution of money for corrupt pur- poses. But the statute says nothing about corruption; it declares that the thing shall not be done; with two specified exceptions, it provides, that money ‘ intended BRIBERY AND CORRUPTION. 223 to promote an election,’ shall not be contributed. The legislature evidently thought, that the most effectual way ‘to preserve the purity of elections, was to keep them free from the contaminating influence of money ; they said you may contribute money to pay for printing and circulating votes and information, but not for any other purpose. If this contract be void, it is said that money cannot be contributed to hire a room for holding political meetings. That is undoubtedly true, if the object be to promote the election of any particular per- son or ticket.” In Macham v. Dow, 32 Vermont Rep., 721, which was an action on a promissory note, the testimony introduced by the defendant tended to show that the note was given upon the consideration that the payee, who was a United States mail agent, and contemplated resigning his office, agreed to resign in the defendant’s favor, and to use his influence with the departments at Washington, for the defendant’s appointment to the place. The plaintiff proved that he had performed his part of the contract ; but it was held that, the consideration of the note having been really the sale of an office, it was illegal, and that the action could not be maintained. The case just cited follows the principle upon which Ferris v. Adams, (23 Vermont Rep., 136,) was determined. That was also an action on a note executed by the de- fendant to the plaintiff, who held the office of sheriff, in consideration of his being appointed a deputy. Redfield, J., in deciding the case, characterized the sale of public 224 SUFFRAGE AND ELECTIONS. offices, or of one’s influence in obtaining appointments to them, as “a transaction of so vicious a character, that it is no sufficient consideration for a promise.”! 1. By the court: This is the general current of all the English books upon this subject. 7 Bac. Ab. Tit. Offices and Officers, F. B. The case of Rex v. Vaughan, 4 Barr, 2494, is the case of an information against one for attempting to bribe a privy counsellor to procure a patent for a public office in the gift of the king. And this was held to bean indictable offence at common law. Lord Mansfield, in giving judgment against the respon- dent, in reply to the argument attempted to be drawn from the frequency of similar transactions, says: “If these transactions are believed io be fre- quent, it is time to put a stop to them.” The case of King v. Plympton, 2 Ld. Raym., 1377, is a public prosecution against one for attempting to bribe a corporator to vote for a particular candidate for a corporate office, and is not important to the present question. Law v. Law, 3 P. Wms,, 391, is the case of brokerage of office, as it is termed, where the procurer took a bond of the incumbent for an annual stipend of £10. The court of chan- cery relieved against the bond. The Lord Chancellor held that giving money to one to influence the commissioners, in whose gift the appointment is, was altogether as bad as giving money to the commissioners themselves to secure the appointment. Stackpole v. Earl, 2 Wils., 133, is assumpsit upon a promise to pay the plaintiff £2 to find a purchaser for the defend- ant’s office of the port of London. It was held an illegal contract at com- mon law. Justice Clive said “he thought the sale of offices malum in se at common law.” Garforth v. Fearon, 1 H. Bl. 327, is where one man allowed his name to be used to obtain an office in the customs, which it was agreed should be executed by the plaintiff, and he receive the profits; but after the appointment the defendant declined to do so. The court held that no action will lie upon such a contract, it being void, both at common law and under the statute. Harrington v. Du Chatel, 1 Br. C.C, 124, is where one held the nomination of certain officers in the king’s household, and nominated the defendant for one, taking from him a bond for 1001 therefor. Lord Thurlow granted a perpetual injunction against the bond, although he did not regard the case as coming within the statute of Edw. VL, but treated it as a matter of public policy of the law. Many other English cases might be cited to show that, at common law, the sale of an office, or of any agency or influence in the procuring of one, is illegal, and that any contract, made upon any such consideration, is void. The Amer- ican cases, and the general opinion of the profession, certainly favor the view we have taken of this case. The opinion of Woodbury, J., in Mere- BRIBERY AND CORRUPTION. 225 Duke v. Asbee, 11 Iredell, 112, is instruétive as showing the liberal construction of the statutes against election bribery, by the courts. The defendant being a candi- date for an elective office, requested the plaintiff to fur- nish his friends, upon public occasions during the can- vass, with liquors and other articles. The action was for the liquor furnished at this request. The plaintiff swore that he did not furnish the liquor with any design of influencing voters and did not himself vote for the defendant. The jury found for the plaintiff, but the verdict was set aside. The opinion of Nash, J., quotes from the legislative acts to punish bribery at elections, which are similar in substance and identical in design with the legislation in other states,and the English statutes after which they were modeled, and remarks that they bear so striking a likeness to the latter that the decisions of the English courts are very safe guides to us. Several of these are referred to. Rebbans v. Crickett, 1 Bos. and Pul., 264, was a suit for dith v. Ladd, 2 N. H., 517, recognizes this distinction as valid and impor- tant. The learned judge says: ‘‘ But should even a deputy sheriff agree to pay the high sheriff a gross sum, at all events, the contract would be void.” The same principle is virtually confirmed in Carleton v. Whitcher, 5 N. H., 196, and in Cardigan v. Page, 6 Ib., 182, The same rule is recognized in Groton v. Waldoborough, 2 Fairf., 306. The case of Love v. Bucknor, 4 Bibb, 506, is the very case before this court ; and the court held the bond given to indemnify the sheriff against the defaults of the deputy void. We should not perhaps be prepared to go that length. The case of Lewis v- Knox, 2 Bibb, 453, is much like the last case. And the cases of Overton y. Rhodes, 3 A. K. Marsh, 205, and Baldwin v. Bridges, 2 J. J. Marsh, 7, are to the same effect. 15 226 SUFFRAGE AND EQLECTIONS. provisions furnished the voters at the request of the de- fendant, who was a candidate at the time, and it was decided there could be no recovery, “because the con- tract was malum prohibitum. The person treating is within the statute whether he be the agent of the candi- date or not. (Lophouse v. Wharton, 1 Campbell, 550; Ward v. Nanny, 2? Car. & P., 399; 14 B.C. L. R., 369.) In another suit it was decided that “if a mercer sells ribans, knowing that they are to be distributed to voters, he cannot recover the price.” (Richardson v. Webster, 3 Car. & P., 128. And so, if a candidate pay the expense of buying out the freedom of voters, or pay their travel- ing expenses, they incur the penalty of the statute. (ist Sel. N. P., page 12; Bayntun v. Cattle, Ist M. & Rob., 265.) - Following these precedents, the North Carolina court stated the spirit and letter of statutes against bribery to be hostile to every attempt to influence voters, however insignificant or indirect the means employed, and held that their policy applied to all persons, irrespective of in- tention, who knew the object with which voters are en- tertained, so far as recovery for the entertainment is concerned. “Tf in England,” said Judge Nash, concluding his opinion, and we adopt his remarks as a fitting close to this chapter, “the purity of the ballot box is considered so important, how much more sedulously ought it to be guarded here. Upon the virtue and intelligence of the people our institutions rest; nor can they be endangered BRIBERY AND CORRUPTION. 227 until these principles are lost sight of. The legislature has done its part, and if its enactments are enforced, by those to whom the duty belongs, much may yet be done to give them stability and vigor. And among the most corrupting practices of candidates for office, is the one we are considering in this case; it is bribery of the most vicious and destructive tendency, and deserves to find no favor in courts of justice or from the people themselves. Whenever the offence is known to exist, the law ought to be rigidly enforced.” Cuapter XII. 8 _— ELECTION CONTESTS. Most of the questions that arise in election contests, on the merits—questions which go to the qualifications of the voter, the legality of the ballot and whether it was counted for the right person, and the regularity of the election—are considered in the preceding chapters. There are certain established rules touching the rights of the claimants pending the inquiry into the merits which may be now stated. The constitution of every state makes each house of the legislature the judge of the qualifications and re- turns of its own members, and the constitution of the United States contains the same provision relative to the Senate and House of Representatives. In considering and determining between rival claimants to seats, there- fore, these bodies are entirely independent of the courts, this being essential to the maintenance of their equality as co-ordinate branches of the government. All other bodies and officials, however, are, as we shall see,? within the jurisdiction of the courts. 1. Kerr v. Trego, 47 Pa State, 292, post. 230 SUFFRAGE AND ELECTIONS. The Mode of Procedure. ‘ The common law method of trying the title to office was by the writ of quo warranlo, and this practice still obtains in addition to statutory provision for other methods. Originally the proceeding, instituted against the defendant as an usurper in office, the judgment of ouster against him carried with it a penalty in the na- ture of a fine, as it was considered a public offence to usurp an office. But its object is now practically con- fined to trying the right to the disputed office. The pro- ceedings under quo warranto are in many states regulated by statutes, which do not change the common law very materially, but it is safe to consult them, as they are, in some respects, remedial and should be strictly followed. Procedures other than that of quo warranto have been substituted in all the states for contesting the election of state and county officials. The acts providing for these contests create the tribunals before which they shall be had, and prescribe in detail the course of proceedings. They are more summary than the old method, and an improvement upon it, as, under them, the merits of the case may be more quickly reached and the abuse of long continued usurpation in office prevented. Congress has also provided by law the method of con- testing elections in either house. (See appendix.) The Certificate of the Returning Officers. The certificate of the election returning officers is pri- ELEcTION ConrTeEsSTS. 231 ma, facie evidence of the right of the person holding it,! and the primary evidence in a proceeding contesting his election. If the returning officer refuse to issue it, sec- ondary evidence may be offered by the party claiming the election. The election officers can only be required to certify to the facts required by the statute, and their certificate is evidence solely of such facts,? but their re- fusal or neglect to perform the duty imposed upon them by the statute, cannot operate to defeat the popular will or deprive anyone of his rights.3 e In the organization of legislative bodies it is the gen- eral rule, where a seat is contested, to permit the person holding the certificate, signed by the officer or officers authorized by law to issue credentials, to qualify and take his seat in the first place, subject to a decision upon the merits.* The New Jersey case was one in which the lower house of congress refused to allow those holding the governor's credentials to be sworn. The case was a peculiar and extraordinary one. One set of claimants held certifi- cates of election signed by the governor; the others presented certificates of the secretary of state, showing that they had received majorities of the votes cast iu their respective districts. A protracted discussion, while the house was yet in an unorganized state, resulted 1. Kerr v. Trego, 47 Pa. State R., 292. 2. Switzler v. Anderson, 2 Bartlett, 374. 3. Richards’ Case, Cl. & H., 95; Clements’ Case, 1 Bartlett, 266. 4, McCrary on Elections, 22 204, 205. 232 SuFFRAGE AND ELECTIONS. in a refusal to admit either set of claimants pending the investigation, the majority being satisfied that the gover- nor’s certificates were in fraud of the electors. The form of the certificate or credential is immaterial. It is sufficient if signed by the officer authorized by law to issue it, and if several are required to join in issuing it, _it is generally sufficient if a majority sign it.1 And when the law does not expressly designate the officer who shall certify to the election of a member of congress, a certificate signed by the governor of the state, with the seal of office attached, will be accepted as lawful, and as prima facie evidence of the holder’s title, under the statute of 1867.? Cases have occurred in which it was necessary to de- cide between claimants holding certificates from the same officer. This was the case in Morton v. Daly. The governor first issued his certificate to Morton, and sub- sequently, upon the alleged discovery of fraud, gave Daly a certificate declaring him to have been elected. The House allowed the latter to be sworn and take his seat pending investigation. This decision is questioned, inasmuch as it recognized in the governor the right to exercise judicial functions and enquire into fraud, con- trary to several authorities holding that in the absence of law vesting the executive with judicial powers, he cannot exercise such powers, for the purpose of investi- 1. Ibid., 3 205. 2. Case of Clark, 42 Congress, ELectrion ConrteEsts. 233 gating charges of fraud and deciding upon them. Ina later case, (Wallace v. Simpson, 2 Bartlett, 552,) in which Mr. Simpson held the governor’s certificate, and Mr. Wallace held a certificate of the canvassers setting forth that he had received a majority of the legal votes, ac- companied by a statement alleging that frauds and irregularities had occurred in the election, and that although they had given Simpson a certificate they believed Wallace elected, the house acted upon the doctrine that the second statement, showing on its face that the canvassers had gone beyond their province, was unauthorized, and that the governor’s certificate es- tablished a prima facie case, and entitled the holder to the seat. This doctrine has since been established by frequent decisions. An exception to the rule which makes the certificate signed by the proper officer prima facie evidence of title, occurs when the paper contains some recital of facts im- pairing its value for that purpose. If facts are recited, for example, contradicting the purport of the certificate by showing that certain votes were not canvassed which might have changed the result, or by showing affirma- tively that the holder of the certificate was not in fact elected, the prima facie case is destroyed, and it will be competent to go behind the certificate to inquire into the facts. If it appear upon inquiry that the canvassing of the omitted votes would not have affected the result, 1, State ex rel. Bland v. Rodman, 43 Minn., 256; State v. Steers, 44 Mo., 224-228. 234 SUFFRAGE AND ELECTIONS. the prima facie case is re-established. (Kountz v. Kof- froth, 2 Bartlett, 25.) The exception just mentioned having relation to cases in which the certificate contains some unusual feature, and is not, therefore, in ordinary or regular form, the rule still holds good that a certificate of election, regular in form and signed by the proper authority, generally confers upon the person holding it the prima facie right to the office,1 and is evidence of his title which can ordinarily only be overcome by a contest in the manner directed by law.? The syllabus of the decision in Kerr v. Trego et al.,47 Pa. State, 292, reads: “In all bodies that are under law, where there has been an authorized election for the office in controversy, the certificate of election which is sanc- tioned by law or usage, is the prima facie written title to the office, and can only be set aside in a contest in the forms prescribed by law.” This was a proceeding founded on a bill in which the complainants alleged that, having been duly elected to the common council of Philadel- phia, they had attended the meeting held by the mem- bers continuing from the preceding year, and presided over by the president whose term had not yet expired, and had duly organized,forming a quorum. But thatthe defendants and other members had refused to act with 1. People v. Miller, 16 Mich., 56; Crowell v. Lambert, 10 Minn., 369; State v. Sherwood, 15 Minn., 221; State v. Churchill, Ibid, 445. 2. Commonwealth v. Baxter, 35 Penn. St. R., 263; The State v. The Governor, 1 Dutch., N. J., 331; Kerr v. Trego, Supra. Eection Contests, 235 them, had disturbed their proceedings, and threatened and intended to exercise, as a separate body, the powers of the common council. It appeared that the complain- ants had all presented their certificates at the time of the organization, but that their seats were contested. The Supreme Court (Lowrie, J., delivering the opinion) held that the courts had the authority to redress such wrongs because “all bodies, except the supreme legislature, are under law” and “subject to the judicial power established by the constitution ;” that the body represented by the complainants having maintained the forms of organiza- tion according to the laws and usages of the body, was legitimately organized, the certificates of the new mem- bers being evidence of their right to admission, subject to contest. Hadley v. City of Albany and Hunter v. Chandler, al- though not decisions in election cases, may be noticed here as illustrating the effect given by the courts to elec- tion certificates in collateral proceedings. . Hadley v. City of Albany, decided by the New York Court of Appeals, is authority for the doctrine that while, in a proceeding between the people and a person claim- ing an office, to impeach the election, the certificate is only prima facie evidence of the right claimed under it, and may be impeached, yet in a controversy arising col- laterally or between the party holding the certificate and a stranger, it is conclusive of the electicn of the officer, and is not open for determination by a jury. In the case referred to the plaintiff brought suit to recover his 236 SUFFRAGE AND ELECTIONS. salary as policeman. The defence was that he had been removed by the mayor. The plaintiff offered to prove that his removal was not legal, because the person claim- ing to act as mayor was not elected, and to sustain this offered in evidence the returns to impeach the certificate of election. The court ruled the evidence out, and was sustained on appeal. The decision in Hunter v. Chandler, 45 Mo., 458, was that when one, who is in office under a commission, re- signs pending a quo warranto proceeding on the part of the state against him and the proceedings are abandoned before the right to the office is determined, an action cannot be maintained against him for the emoluments he may have received, by the person claiming to have been entitled to the office, unless he has first established his right in a proceeding for that purpose. The Hearing. The inquiry in all contested elections, whether in legislative bodies, in courts or before a jury, or upon quo warranto, opens the whole question,? and goes to the merits of the case, the object being to ascertain and give 1. Hadley v. City of Albany, 33 N. Y., 603. Denio, J.: “If the ques- tion had arisen upon an action in the nature of a quo warranto informa- tion, the evidence would have been competent; but it would be intolerable to allow a party affected by the acts of a person claiming to be an officer, to go behind the official determination to prove that such official determi- nation arose out of a mistake or fraud’’ Hunter y. Chandler, 45 Mo., 453; Peyton v. Brent, 3 A. Cr. C. C, 424, ‘ 2. McCrary on Elections, 3 287; The People v. Vail, 20 Wend., 12. ‘ ELEcTION ConrsEsts. 237 effect to the will of the majority of legal voters who voted in the election.1_ Accordingly, the returns may be im- peached, the ballots recounted, their legality, when ques- tioned, inquired into and their meaning, when doubtful, ascertained,? and all allegations of irregularity, fraud and corruption examined into. In Missouri it is held that, if a contestant seeks to go behind and set aside the returns, he must set forth in his pleadings wherein they are false.® In Howard v. Shields, 16 Ohio St. Rep., 184, where the fact was that the election officers had omitted to sign the poll books and tally lists, at the proper place, and had omitted, also, to state the aggregate of the votes cast, it was decided that verbal evidence was admissible to ex- plain and correct the omissions. The rules for counting disputed ballots in which the initials only of a candidate are used, or a wrong initial, or one initial omitted, or in which the voter has substi- tuted a written for a printed name, have been already stated,* and need not be repeated now, further than to say that, in such cases, the decisions are, that the inten- tion of the voter should prevail when it can be ascer- tained. People v. Pease, supra., is authority upon the point that if a voter refuses to disclose for whom he voted, 1, People v. Vail, supra.; Commonwealth v. Commissioners, 5 Rawle, 77. 2. Peozle v. Pease, 27 N. Y., 45; Cushing’s Am. Par. Law, 2 199, 210. 3. State ex rel. Townsley, 56 Mo., 107. 4, Ante; Chapter on Conduct of Elections. 238 SuFFRAGE AND ELECTIONS. which he has the right to do unless he voted illegally,? circumstantial evidence may be resorted to, identfying him with a certain party, or showing from whom he ob- tained his ballot, from which a presumption may be raised; and where a person is shown to have voted ille- gally, he may be required to say for whom he voted, unless he decline because to do so would be self-crimi- nating. (Brighily’s Election Cases, 248 ; McDaniel’s Case, 3 Pa. Law Journal, 810.) And, in accordance with the doctrine in People v. Pease, that circumstantial evidence may be resorted to, such circumstances as that the illegal voter asked for a: certain ticket, that there were no scratched tickets, ete, were admitted. (Thompson v. Ewing, 1 Brewst., 68-69.) McDaniels’ case and others state the rule to be, in cases where illegal votes are shown to have been polled, without showing for which candidate, to deduct from each the per centage which the illegal vote is of the whole number cast. (Cushing’s Election Cases, 583 ; Shepherd v. Gibbons, 5 Brewst., 128.) This is obviously, however, an expedient which, though it may make the aggregate, as reduced, a better representation of the legal vote, can only reduce the majority of the leading candi- date. The only alternative is, in such cases, to order a new election where there is power to do so. But it was held in Duffey’s Case, 4 Brewster, 531, that where notice is given by a contestant to the person having the majority 1. People v. Cicott, 16 Mich., 283; State v. Hilmantel, 23 Wis., 422. ELection Conrests. 239 that illegal votes were received, it is incumbent upon the latter either to prove that the votes were legal or that they were cast for the contestant, and, if he fails to do so, they will be taken altogether from his count. Mr. McCrary doubts the correctness of this doctrine,? and it would certainly seem to be contrary to the familiar principle of evidence which puts the burthen of proof on him who affirms. . ‘The disposition of the courts is against rejecting the entire poll if it is possible to ascertain for whom the majority of legal votes were given,? and if, in recounting the ballots, it be found that some of them have been marked by the election officers in violation of the stat- ute, they should, nevertheless, be counted. Where the statute provides how the ballots should be kept after the election and they are so kept, they are the best evidence, but if they have not been so kept, it is questionable whether they should be received in evidence. If they are, their value is for the court or jury to decide upon under all the circumstances.* Notice is indispensable in all contests (Brightly’s Elec- tion Cases, 646), and where it is to be given within a given number of days after the determination of the re- sult, the rule for computing the time is to include the first and exclude the last day, or vice versa. 1. McCrary on the American Law of Elections, page 227. 2, Biddle and Richards v. Wing, Cl. & H., 504. 3. McKenzie v. Braxton, Giddings v. Clark, 42d Congress. 4. Cooley’s Constitutional Limitations. 240 SUFFRAGE AND ELECTIONS. Quo Warranto and Mandamus. Statutory provisions for contesting elections do not abolish the proceeding by quo warranto to inquire by what right a person occupies an office, and to oust him if he is an usurper. (People v. Holden, 12 Cal., 123.) The two remedies are distinct, that by quo warranto belonging to the people “in the right of their sovéreignty.” (Zbid.) Mandamus is not the proper remedy for obtaining pos- session of an office, but it will lie to compel the election officers to perform such duties as are required by statute and as are purely ministerial—as to canvass the returns and declare the result as shown by them and decided in a proper action, and issue certificates in accordance there- with. (Clark v. McKenzie, 7 Bush, Ky., 523.) Mandamus may also issue to compel the officer whose duty it is to swear in the person elected to perform that duty. (Ez parte Heath, 3 Hill, 42.) But this will not confer any title not already existing. (High on Extraordinary Remedies, § 52.) With these exceptions, the general rule applies in controversies relating to elections, as in other controver- sies, that the writ of mandamus will not be granted where another adequate remedy exists, and the courts refuse it in all cases in which an information in the na- ture of a quo warranto, or other proceeding provided by statute, will secure to the aggrieved party the rights of which he is deprived. The authorities are numerous in ELECTION CoNnTESTS. 241 this country,! and the courts of England hold the same doctrine.? 1. High on Extraordinary Rem., 349; People v. N. Y.3 Johns. Cas., 79; ‘People v. Sup. of Greene, 12 Barb., 227; Anderson v. Colson, 1 Neb., 172; Bonner v. State, 7 Geo., 478; St. Louis Co. Ct. v. Sparks, 10 Mo., 118; State v. Rodman, 43 Mo., 286; People v. Council of Detroit, 18 Mich., 338; Underwood v. White, 27 Ark., 382, etc. 2. King v. Mayor of Colchester, 2 T. R., 260; Queen v. Derby, 7 Ad. & E., 419. ' Cuapter XIII. COMMISSIONS—THEIR EFFECT AND REVOCA- ‘TION. The rights conferred by commissions and the power of the governor to revoke them, in cases of officers chosen by the people, were considered by the Supreme Court of Pennsylvania in the case of Ewing v. Thompson, 42 Penn- sylvania State Reports, 372. Ewing had been commissioned by the governor as sheriff, having been returned elected. Before his commission was issued, Thompson, his oppo- nent at the election, had commenced a contest which was subsequently decided in his favor. The judgment of the quarter sessions rendering this decision, was removed, by certiorari, to the Supreme Court, and while the cause was pending in that tribunal, the governor revoked the first commission and issued another to Thompson. The Supreme Court held that this act of revocation by the governor did not give the person to whom the second commission was issued, the right to assume the office or interfere with its duties, until the question had been finally adjudicated upon. While the certiorari did not take away from the governor the power to issue the com- mission to Thompson, the service of the writ affected the 244 SUFFRAGE AND ELECTIONS. latter; it did not take away his title to the commission, but it suspended his right to proceed under it until the final decision under the revisory writ. It was also held that where the appointing power is in the electors, the governor has no choice but to commission the person elected, that being merely a ministerial duty, and, that done, a vested right is consummated in the appointee, which nothing but a judicial decision can take away or authorize the governor to recall. It was further held that, had the second commission been issued before the writ of certiorari was served, but after the decree of the quarter sessions in favor of the contestant, and had the officer commenced his duties, the commission would not have been avoided by the subsequent service of the writ. In such case the act of revocation of the first commission by the governor and the issuing of the second, would have been done in conformity to a judicial decision at the time unquestioned and unappealed from. 1, Ewing v. Thompson, 43 Penna. 8. Rep., 372.‘ The power of the gov- ernor,” says the court, “to revoke a commission once issued to an ofhcer, not removable at the pleasure of the governor, may well be denied; even where he has the power of appointment of such an officer, an appointment once made, is irrevocable; much more, it would seem, is a commission issued by him incapable of being recalled or invalidated by himself, when the appointing power is located elsewhere, and when his act, in issuing the commission, is not discretionary with him, but is ‘only the performance of a ministerial duty. Under the constitution, the governor does not appoint a sheriff, and he has no choice as to whom he will commission; the appointment is made by the electors, and it is the duty of the chief execu- tive to commission the person whom they have designated according to the power of law; when he has done that, his duty is performed, and a vested. right is consummated in the person commissioned, a right which nothing but judicial decision can take away or authorize him to recall.” Quoting Marbury v. Madison, 1 Cranch, U.S. Rep., 187. ComMISsIONs. 245 In another case the principle is stated to be that a commission issued after a proceeding instituted to con- test an election is regarded only as provisional.1 The commission is presumptive evidence of the election of the holder ;? it gives color to the acts of the incumbent, and makes him a de facto officer ;3 but his election hav- ing been declared void by a competent judicial tribunal, the commission gives him no title to hold the office,4 and it is annulled and superseded by the issuing of a new commission to the person decided to have been legally elected.5 In The State v. Johnson, 17 Ark., 407, the facts were that Johnson was, upon the first count, declared elected mayor, and commissioned by the governor. His oppo- nent, Rogers, contested the election before the board of commissioners having jurisdiction in the case, who de- cided, upon hearing, that Rogers had a majority of the votes cast and was entitled to the office, and gave him a certificate accordingly. Upon this certificate the gover- nor commissioned Rogers. Johnson not surrendering the office, the state brought a quo warranto. The ap- pellee (Johnson) pleaded his election, as first declared, and his commission. The state replied, setting forth the contest, the decision of the commissioners that Rogers 1, Ewing v. Filley, 43 Penn. 8. R., 384. 2. State v. County Court of Howard, 41 Mo., 247. 3. State v. Johnson, 17 Ark., 407. 4, Berry v. Lauck, 5 Cold., 588. 5. State v. Johnson, 17 Ark., 407, supra. 246 SUFFRAGE AND ELEcTIONS. had a majority, the certificate to that effect, and the commission issued to him. To this there was a demurrer, which was sustained in the circuit, and the state ap- pealed. On the appeal the judgment on the demurrer was overruled, the court saying that the party com- missioned “derives his authority as an officer, not from the proclamation of the judges, not from the certificate of election, not from those abstracts made out for the gov- ernor, and not from the commission, but from the free choice and election of the people, not the people in the popular sense of those words, but fromi the people who were competent and qualified electors, when the votes were polled and the election held.” As to the force and effect of the second commission, the court said that as soon as the contestant was commissioned in accordance with the adjudication had, the commission first issued “was virtually destroyed, cancelled and suspended,” the holder was an usurper if he continued to act, and quo warranto to oust him would lie. In Wanmack v. Holloway, 2 Ala. Rep. (N. S.), 31, the language of the court is this: “We think it will not admit of doubt that, whenever the constitution provides for the election of any officer, he derives his right to ex- ercise the particular office from the election; the com- mission from the executive is only the evidence of the right. If one who has no right is commissioned and acts, he exercises a franchise without legal authority, and it may be resumed by the state whenever the judi- CoMMISSIONS. 247 cial tribunals have ascertained the fact of usurpation in the mode prescribed by law.” The case of Marbury v. Madison is historical, and ought to be noticed in this connection. The defendant was Mr: James Madison, then secretary of state, and afterwards president of the United States. The Supreme Court was asked for a rule requiring him to show cause why a man- damus should not go against him to compel him to issue a commission to Mr. Marbury, who was appointed jus- tice of the peace of’the District of Columbia by Presi- dent Adams. The president had nominated Marbury to the Senate, the nomination had been confirmed, and the commission had been signed by the president and sealed by his secretary of state, but Mr. Madison refused to deliver it. The application for the mandamus was denied, it being an-exercise of original jurisdiction not warranted by the constitution. In his learned decision Chief Jus- tice Marshall, who delivered the opinion of the court, discussed very fully the prerogative of the executive in regard to appointments and commissions, what rights are conferred by a commission, and how far it is essen- tial to the exercise of the duties of the office by the ap- pointee. It was held that a commission is not necessary to the appointment of an officer by the executive, that, in the case of an officer not holding by the will of the executive, when the nomination has been made and confirmed and the commission signed, the appointment is complete and irrevocable, and the commission is only evidence of the appointment.* 1. Marbury v. Madison, 1 Cranch U. 8. Supreme Court Reports, 137- 248 SUFFRAGE AND ELECTIONS. The following extracts from the able and interesting opinion of Chief Jus- tice Marshall refer to the point in question: ‘Some point of time must be taken when the power of an executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been ex- ercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. * * * The signature is a warrant for affixing the great seal to the com- mission ; and the great seal is only to be affixed to an instrument which is complete. * * * The commission being signed, the subsequent duty of the secretary of state [affixing the seal] is prescribed by law, and not to be guided by the will of the president. * * * It is a ministerial act which the law enjoins on a particular officer for a particular purpose. * * * Jn considering this purpose, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential * * * It is not necessary that the delivery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the president. If, then, the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, re- corded and transmitted to the party. * * * It has occurred as possi- ble, and barely possible, that the transmission of the commission and the acceptance thereof, might be necessary to complete the right of the plain- tiff. The transmission of the commission is a practice directed by con- venience, but not by law. It cannot, therefore, be necessary to constitute the appointment which must precede it, and which is the mere act of the president. If the executive required that every person appointed to an office should himself take means to procure his commission, the appoint- ment would not be the less valid on that account. * * * A commis- sion is transmitted to a person already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry, * * * It is, therefore, decidedly the opinion of the court that when a commission has been signed by the president the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state * * * It has already been stated that the applicant has, to that commission, a vested legal’ right, of which the executive cannot deprive him. He has been appointed to an office, from. which he is not removable at the will of the executive; and being so ap- pointed, he has a right to the commission which the secretary has received fiom the president for his use.” APPENDIX. THE ELECTION OF FEDERAL OFFICERS. GENERAL CONSTITUTIONAL PROVISIONS. Article XIV. Section 1, fourteenth amendment: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. (For the next section relative to the denial or abridg- ment of the right to vote, see paragraph 3, section 2, article I, of constitutional provisions for representatives, ost. ere 3, fourteenth amendment: No person shall be a senator or representative in congress, or elector of pres- ident, and vice president, or hold any office, civil or military, under the United States, or under any state, who having previously taken an oath as a member of congress, or as an officer of the United States, or asa member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may, by a vote of two thirds of each house, remove such disability. 250 SUFFRAGE AND ELECTIONS. Section 5. The congress shall have power to enforce, by appropriate legislation, the provisions of this article. Article XV. Section 1. The right of citizens of the United States to vote, shall not be denied or abridged by the United States, or by any state, on account of race, color, or pre- vious condition of servitude. Section 2. The congress shall have power to enforce this article by appropriate legislation.” THE PRESIDENT. CoNSTITUTIONAL PROVISIONS. . Article IL, Section 1. 1. The executive power shall be vested in a president of the United States of America. He shall hold his of- fice during the term of four years, and, together with the: vice president, chosen for the same term, be elected as follows :3 2. Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representa- tives to which the state may be entitled in the congress ; but no senator or representative, or person holding an 1. Candall v. The State of Nevada, 6 Wall., 35; Paul vy. Virginia, 8 Wall., 108; Ward v. Maryland, 12 Wall., 418; Slaughter House cases, 16 Wall., 86; Bradwell v. The State, 16 Wall. 130; Bantmeyer v. Iowa, 18 Wall, 129; Minor v. Happersett, 21 Wall., 162; Walker v. Sanvinct, 92 U.S, 90; Kennard y. Louisiana; Ex rel. Morgan, 92 U. S. 480; United States v. Cruikshank, 92 U. S. 542; Munn vy. Illinois, 94 U. S. 113. 2. U.S. v. Reese et al., 92 U.S, 214; U.S. v. Cruikshank, 92 U.S., 542. 8. Chisolm, Ex’or, v. Georgia, 2 Dallas, 419; Leitensdorfer et al. v. Webb, 20 Howard, 176; Section 152 Revised Statutes, post. ELEcTION OF FEDERAL OFFICERS. 251 office of trust or profit under the United States shall be appointed an elector.! 3. The congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States.? 4. No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president ; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. 5. In case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall de- volve on the vice president, and the congress may, by law, provide for the case of removal, death, resignation or inability both of the president and vice president, de- claring what officer shall then act as president, and such officer shall act accordingly, until the disability be re- moved or a president shall be elected.® Article XII of Amendments. The electors shall meet in their respective states and vote by ballot for president and vice president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice president, and of the 1. In re Corliss, 16 Am. Law Register, 15. Held by the Supreme Court of Rhode Island that ineligibility by reason of holding an office at the timeof the election cannot be removed by a subsequent resignation of the. office. The effect of such ineligibility on the part of the person who re- ceives the highest vote is to render the election void. The next highest candidate is not elected. 2. See sections 131 and 135 U. 8. Revised Statutes, post. 3. See sections 146, 147, 148, 149, 150 and 151 U.S. Rev. Stat., post. 252 SUFFRAGE AND ELECTIONS. number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the sc nate; the president of the senate shall, in the presence of the senate and house of representatives, open all the certifi- cates, and the votes shall then be counted; the person “having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. But in choosing the president the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice president shall act as president, as in the case of death or other constitutional disability of the president.! The person having the greatest number of votes as vice president, shall be the vice president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States, ‘ Statutory Provisions. . Section 181. Except in case of a presidential election 1. See Sections 132 to 145 of U. S. Revised Statutes, post. ELECTION OF FEDERAL OFFICERS, 253 prior to the ordinary period, as specified in sections one hundred and forty-seven to one hundred and forty-nine, inclusive, when the offices of president and vice presi- dent both become vacant, the electors of president and vice president shall be appointed, in each state, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a presi- dent and vice president.! ; Section 182. The number of electors shall be equal to the number of senators and representatives to which the several states are by law entitled at the time when the president and vice president to he chosen come into office; except that where no apportionment of representa- tives has been made after any enumeration at the time of choosing electors, the number of electors shall be according to the then existing apportionment of senators and representatives. Section 133. Each state may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote, Section 134. Whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day, in such a manner as the legislature of such state may direct. ‘Section 185. The electors for each state shall meet and give their votes upon the first Wednesday in December, in the year in which they are appointed, at such place, in each state, as the legislature of such state shall direct. Section 136. It shall be the duty of the executive of each state to cause three lists of the names of the electors of such state to be made and certified, and to be delivered to the electors, on or before the day on which they are required by the preceding section to meet. Section 137. The electors shall vote for president and vice president respectively, in the manner directed by | the constitution.? 1. See Section 5520, and act of June 20, 1876, post. 2, See Article XII., Amendment to the Constitution, ante. t ‘ 254 SUFFRAGE AND ELECTIONS. Section 138. The electors shall make and sign three cer- tificates of all the votes given by them, each of which certificates shall contain two distinct lists, one of the votes for president, and the other of the votes for vice president, and shall annex to each of the certificates one of the lists of the electors which shall have been furnished to them by direction of the executive of the state. Section 139. The electors shall seal up the certificates so made by them, and certify upon each that the lists of all the votes of such state given for president, and of all the votes given for vice president are contained therein, Section 140. The electors shall dispose of the certifi- cates thus made by them in the following manner: One. They shall by writing under their hands, or under the hands of a majority of them, appoint a person to take charge of and deliver to the president of the sen- ate, at the seat of government, before the first Wed- nesday in January, then next ensuing, one of the cer- tificates. Two. They shall forthwith forward by the post office to the president of the senate, at the seat of government, one other of the certificates. Three. They shall forthwith cause the other of the certificates to be delivered to the judge of that district in which the electors shall assemble. Section 141. Whenever a certificate of votes from any state has not been received at the seat of government on the first Wednesday of January, indicated by the pre- ceding section, the secretary of state shall send a special messenger to the district judge in whose custody one certificate of the votes from that state has been lodged, and such judge shall forthwith transmit that list to the seat of government. Section 142. Congress shall be in session on the second Wednesday in February succeeding every meeting of the electors, and the certificates, or so many of them as have been received, shall then be opened, the votes counted and the persons to fill the offices of president and vice ELECTION OF FEDERAL OFFICERS. 255 president ascertained and declared, agreeable to the con- stitution.+ Section 148. In case there shall be no president of the senate at the seat of government on the arrival of the persons intrusted with the certificates of the votes of the electors, then such persons shall deliver such certificates into the office of the secretary of state, to be safely kept and delivered over as soon as may be to the president of the senate. Section 144. Each of the persons appointed by the electors to deliver the certificates of votes to the president of the senate, shall be allowed on the delivery of the list intrusted to him, twenty-five cents for every mile of the estimated distance, by the most usual road, from the place of meeting of the electors to the seat of government of the United States. Section 145 Every person who, having been appointed, pursuant to subdivision one of section one hundred and forty, or to section one hundred and forty-one, to deliver the certificates of the votes of the electors to the president of the senate, and having accepted such appointment, shall neglect to perform the services required from him, shall forfeit the sum of one thousand dollars. Section 146. In case of removal, death, resignation, or inability of both the president and vice president of the United States, the president of the senate, or, if there is none, then the speaker of the house of representatives, for the time being, shall act as president, until the dis- ability is removed or a president elected.” Section 147. Whenever the offices of president and vice president both become vacant, the secretary of state shall, forthwith, cause a notification thereof to be madé to the executive of every state, and shall also cause the ‘same to be published in at least one of the newspapers printed in each state. Section 148. The notification shall specify that electors 1. See Article XII of Amendments to Constitution, ante. 2. See Paragraph 5, Section 1, Article IL, of the Constitutional Provi- sions, Ante. 256 SUFFRAGE AND ELECTIONS. of a president and vice president of the United States, shall be appointed or chosen in the several states as follows: First. If there shall be the space of two months yet to ensue between the date of such notification and the first Wednesday in December, then next ensuing, such notifica- tion shall specify that the electors shall be appointed or chosen within thirty-four days preceding such first Wednesday in December. Second. If there shall not be the space of two months between the date of such notification and such first Wednesday in December, and if the term for which the president and vice president last in office were elected will not expire on the third day of March next ensuing, the notification shall specify that the electors shall be appointed or chosen within thirty-four days preceding the first Wednesday in December in the year next ensu- ing. Butif there shall not be the space of two months between the date of such notification and the first Wednesday in December, then next ensuing, and if the term for which the president and vice president last in office were elected will expire on the third day of March next ensuing, the notification shall not specify that electors are to be appointed or chosen. Section 149. Electors appointed or chosen upon the notification prescribed by the preceding section, shall meet and give their votes upon the first Wednesday of December specified in the notification. Section 150. The provisions of this title, relating to the quadrennial election of president and vice president, shall apply with respect to any election to fill vacancies’ in the offices of president and vice president, held upon a notification given when both offices become vacant. Section 151. The only evidence of a refusal to accept, or of a resignation of the office of. president or vice pre- sident, shall be an instrument in writing, declaring the same, and subscribed by the person refusing to accept or resigning, as the case may be, and delivered into the office of the secretary of state. Section 152. The term of four years for which a presi- ELECTION oF FEDERAL OFFICERS. 257 dent and vice president shall be elected, shall, in all cases, commence on the fourth day of March next suc- ceeding the day on which the votes of the electors have been given.! ' SENATORS. CONSTITUTIONAL PROVISIONS. Article I., Section 2. 1. The senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote. 2. Immediately after they shall be assembled in con- sequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expira- tion of the second year, of the second class at the expira- tion of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legis- lature of any state, the executive thereof may make tem- porary appointments until the next meeting of the legis- lature, which shall then fill such vacancies. 3. No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. Article I., Section 4. 1. The times, places and manner of holding elections for 1, Paragraph 1 of section 1 of article II. of Constitution, ante. 17 \ 258 SUFFRAGE AND ELECTIONS. senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. . Article I., Section 6. 1. Each house shall be the judge of the elections, re- turns, and qualifications of its own members. Article I., Section 6. 2. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office. Article V. * * No state, without its Consent, shall be deprived of its equal Suffrage in the senate. , StatuToRy PRovisions. Section 14. The legislature of each state which is chosen next preceding the expiration of the time for which any senator was elected to represent such state in congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a senator in congress. Section 15. Such election shall be conducted in the following manner: Each house shall openly, by a viva voce vote of each member present, name one person for senator in congress from such state, and the name of the person so voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house, by the clerk or secretary ELEcTION OF FEDERAL OFFICERS. 259 thereof; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o’clock meridian of the day follow- ing that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a ma- jority of all the votes in each house, he shall be declared duly elected senator. But if the same person has not received a majority of the votes in each house, or if either house has failed to take proceedings as required by this section, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person receives such majority on the first day, the joint assembly shall meet at twelve o’clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a senator is elected. Section 16. Whenever, on the meeting of the legisla- ture of any state, a vacancy exists in the representation of such state in the senate, the legislature shall proceed on the second Tuesday after meeting and organization, to elect a person to fill such vacancy, in the manner pre- scribed in the preceding section for the election of a senator for a full term. Section 17. Whenever during the session of the legis- lature of any state a vacancy occurs in the representation of such state in the senate, similar proceedings to fill such vacancies shall be had on the second Tuesday after the legislature has organized and has notice of such vacancy. Section 18. It shall be the duty of the executive of the state from which any senator has been chosen, to certify his election, under the seal of the state, to the president of the senate of the United States. Section 19. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the state. 260 SuFFRAGE AND ELECTIONS. REPRESENTATIVES. ConsTITUTIONAL PROVISIONS. Article I., Section 2. 1. The house of representatives shall be composed of members chosen every second year, by the people of the several states; and the electors in each state shall have the qualifications requisite for electors of the most nume- rous branch of the state legislature. : 2. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. 3. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, ex- cluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vice president of the United States, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty- one years of age, and citizens of the United States, or in any way abridged except for participation in rebellion, or other crime, the basis of representation therein shall be re- duced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.! The actual enu- meration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall, by law, direct. The number of representatives shall not exceed one for every thirty thousand ; but each state shall have at least one representative. [The re- maining part of this clause apportioned the representa- tives until the first enumeration was made. ] 1. As amended by Section 2 of the XIV Amendment. ELECTION oF FEDERAL OFFICERS. 261 4, When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill up such vacancies. Article I., Section 4. 1. The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may, at any time, by law make or alter such regulations, except as to the places of choosing senators. Article I., Section 5. 1. Each house shall be the judge of the elections, returns and qualifications of its own members. Article I., Section 6. 2. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office. SratutToRY PROVISIONS. Section 22. Should any state deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States,’ to vote at any election named in the amendment to the constitu- tion, article fourteen, section two,? except for participa- tion in the rebellion or other crime, the number of representatives apportioned to such state shall be reduced 1. See section General Constitutional provisions, aate. \ 2. See paragraph 3, of section 2, article I. of Constitutional provisions, ante. 262 SuFFRAGE AND ELECTIONS. in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty- one years of age in such state. Section 23. In each state entitled, under this appor- tionment, to more than one representative, the number to which such state may be entitled in the forty-third, and each subsequent congress, shall be elected by dis- tricts composed of contiguous territory, and containing, as nearly as practicable, an equal number of inhabitants, and equal in number to the number of representatives to which such state may be entitled in congress, no one dis- trict electing more than one representative; but in the election of representatives to the forty-third congress in any state to which an increased number of representa- tives is given by this apportionment, the additional rep- resentative or representatives may be elected by the state at large, and the other representatives by the districts as now prescribed by ‘law, unless the legislature of the state shall otherwise provide, before the time fixed by law for the election of representatives therein.+ Section 25. The Tuesday next after the first Monday in November, in the year eighteen hundred and seventy- six, is established as the day in each of the states and territories of the United States, for the election of representatives and delegates to the forty-fifth congress; and the Tuesday next after the first Monday in November, ‘in every second year thereafter, is established as the day for the election, in each of said states and territories, of representatives and delegates to the congress, commencing on the fourth day of March next thereafter. / (This last section has been modified so as not to apply to states that have not changed their day of election and that cannot do so until their constitutions are amended. ] Section 26. The time for holding elections in any state, district or territory, for a representative or delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected, may be 1. See paragraph 1, section 4, article I., Constitutional provisions, ante. 4 ELectTion oF FepERAL OFFICERS. 263 prescribed by the laws of the several states and territories respectively.! Section 27. All votes for representatives in congress must be by written or printed ballot; and all votes re- ceived or recorded contrary to this section, shall be of no effect. But this section shall not apply to any state voting otherwise, whose election for representatives occurs pre- vious to the regular meeting of its legislature,-next after the twenty-eighth day of February, eighteen hundred and seventy-one. —_——_—— TERRITORIAL DELEGATES. SratutTory Provisions. Section 1862. Every territory shall have the right to send a delegate to the house of representatives of the United States to serve during each congress, who shall be elected by the voters in the territory qualified to elect members of the legislative assembly thereof. The per- son having the greatest number of votes shall be de- clared by the governor duly elected, and a certificate shall be given accordingly. Every such delegate shall have a seat in the house of representatives, with the right of debating, but not of voting. Section 1863. The first election of a delegate in any territory for which a temporary government is hereafter provided by congress, shall be held at the time and places, and in the manner the governor of such territory may direct, after at least sixty days notice, to be given by proclamation ; but at all subsequent elections therein, as well as at all elections for a delegate in organized ter- ritories, such time, places and manner of holding the election shall be prescribed by the law of each territory.” 1. See paragraph 4, section 2, article I, constitutional provisions, ante. 2. See section 25, of Statutory Provisions for Election of Representatives, ante. 264 SUFFRAGE AND ELECTIONS. CONTESTED FEDERAL ELECTIONS. JURISDICTION OF THE UNITED States Courts. District Courts. Section 563 of the United States revised statutes pro- vides that the district courts shall have jurisdiction as follows: : ' Thirteenth. Of all suits to recover possession of any office, except that of elector of president or vice presi- dent, representative or delegate in congress, or member of a state legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided, that such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the constitution of the United States, and secured by any law to enforce the right of citizens of the United States to vote in all the states. Circuit Courts. Section 629 provides that the circuit courts shall have original jurisdiction, as follows: Twelfth. Of all suits brought by any person to recover damages for any injury to his peison or property, on ac- count of any act done by him, under any law of the United States * * * to enforce the rights of citizens of the United States to vote in the several states. Thirteenth. Of all suits to recover possession of any office, except that of elector of president or vice presi- dent, representative or delegate in congress, or member of a state legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, ELECTION OF FEDERAL OFFICERS. 265 color, or previous condition of servitude: Provided, that such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the constitution of the United States, and secured by any law to enforce the right of citizens of the United States to vote in all the states, Fifteenth. Of all suits to recover pecuniary forfeitures under any act to enforce the rights of citizens of the United States to vote in the several states.1 [The above courts are also given jurisdiction in* proceedings by quo warranto, instituted by the United States district attorney, for the removal from office of any person holding office contrary to the provisions of the third section of the fourteenth article of amendment to the United States constitution. ] MovbE oF PROCEDURE. Section 105. Whenever any person intends to contest an election of any member of the House of Representa- tives of the United States, he shall, within thirty days after the result of such election shall have been deter- mined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. Section 106. Any member upon whom the notice men- tioned in the preceding section may be served shall, 1. Subsequent to the enactment of this section of the revised statutes Con- gress haa passed an act for the removal of causes from state to federal courts, which provides that any civil suit or criminal prosecution brought against any officer of the United States, or other person, on account of any act done under the provisions of title ‘The Elective Franchise,” or on account of any right, etc., claimed by such officer or other person thereunder, in any state court, may be removed, at any time before trial or final hearing. thereof, to the circuit court, on the petition of such defendant.—Act of March 8, 1875. See Harrison v. Hadley, 2 Dillon, 229; also section 2010, post. ’ 266 SUFFRAGE AND ELECTIONS. within thirty days after the service thereof, answer such notice, admitting or denying the facts alleged therein, and stating specifically any other grounds upon which he rests the validity of his election ; and shall serve a copy of his answer upon the contestant. Section 107. In all contested election cases the time’ allowed for taking testimony shall be ninety days, and the testimony shall be taken in the following order: The contestant shall take testimony during the first forty days, the returned member during the succeeding forty days, and the contestant may take testimony in rebuttal only during the remaining ten days of said period. [The last section is construed by act of 2d March, 1875, chap. 119, v. 18, p. 338, as follows: Section 2. That section one hundred and seven of the revised statutes of the United States shall be construed as requiring all testimony in cases of contested election to be taken within ninety days from the day on which the answer of the returned member is served upon the con- testant. ] Section 108. The party desiring to take a deposition under the provisions of this chapter shall give the opposite party notice, in writing, of the time and place, when and where the same will be taken, of the name of the witnesses to be examined and their places of residence, and of the name of an officer before whom the same will be taken. The notice shall be personally served upon the opposite party, or upon any agent or attorney authorized by him to take testimony or cross-examine witnesses in the matter of such contest, if, by the use of reasonable diligence, such personal service can be made; but if, by the use of such diligence, personal service can not be made, the service may be made by leaving a duplicate of the notice at the usual place of abode of the opposite party. The notice shall be served so as to allow the opposite party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive ‘of Sundays and the day of service. Testimony in re- buttal may be taken on five days’ notice. ELECTION OF FEDERAL OFFICERS. 267 Section 109. Testimony in contested election cases may be taken at two or more places at the same time. Section 110. When any contestant or returned member is desirous of obtaining testimony respecting a con- tested election, he may apply for a subpeena to either of the following officers who may reside within the con- gressional district in which the election to be contested was held: 1. Any judge of any court of the United States. 2. Any chancellor, judge, or justice of a court of record of any state. 3. Any mayor, recorder, or intendent of any town or city. 4, Any register in bankruptcy or notary public. Section 111. The officer to whom the application authorized by the preceding section is made shall there- upon issue his writ of subpeena, directed to all such wit- nesses as shall be named to him, requiring their attend- ance before him, at some time and place named in the sub- poena, in order to be examined respecting the contested election. Section 112. In case none of the officers mentioned in - section one hundred and ten are residing in the con- gressional district from which the election is proposed to be contested, the application thereby authorized may be made to any two justices of the peace residing within the district; and they may receive such application and jointly proceed upon it. Section 113. It shall be competent for the parties, their agents or attorneys authorized to act in the premises, by consent in writing, to take depositions without notice ; also, by such written consent, to take depositions (whether upon or without notice) before any officer or officers authorized to take depositions in common law, or civil actions, or in chancery, by either the laws of the United States or of the state in which the same may be taken, and to waive proof of the official character of such officer or officers. Any written consent given as aforesaid shall be returned with the depositions. . Section 114. Each witness shall be duly served with a 268 SUFFRAGE AND ELECTIONS. subpeena, by a copy thereof delivered to him or left at his usual-place of abode, at least five days before the day on which the attendance of the witness is required. Section 115. No witness shall be required to attend an examination out of the county in which he may reside or be served with a subpcena. Section 116. Any person who, having been summoned in the manner above directed, refuses or neglects to attend and testify, unless prevented by sickness or un- avoidable necessity, shall forfeit the sum of twenty dollars, to be recovered, with costs of suit, by the party at whose instance the subpena was issued, and for his use, by an action of debt, to any court of the United States; and shall also be liable to an indictment for a misde- meanor, and punishment by fine and imprisonment. Section 117. Depositions of witnesses residing outside of the district, and beyond the reach of a subpcena, may be taken before any officer authorized by law to take testimony in contested election cases, in the district in which the witness to be examined may reside. Section 118. The party notified as aforesaid, his agent or attorney, may, if he see fit, select an officer (having authority to take depositions in such cases,) to officiate, with the officer named in the notice, in the taking of the depositions; and, if both such officers attend, the deposi- tions shall be taken before them both, sitting together, and be certified by them both. But if only one of such officers attend, the depositions may be taken before and certified by him alone. ‘ Section 119. At the taking of any deposition under this chapter, either party may appear and act in person, or by agent or attorney. Section 120. All witnesses who attend in obedience to a subpcena, or who attend voluntarily at the time and place appointed, of whose examination notice has been given, as provided by this chapter, shall then and there be examined on oath by the officer who issued the sub- peena, or, in case of his absence, by any other officer who is authorized to issue such subpcena, or by the officer be- fore whom the depositions are to be taken by written ELEcTION oF FEDERAL OFFICERS. 269 consent, or before whom the depositions of witnesses residing outside of the district are to be taken, as the case may be, touching all such matters respecting the election about to be contested as shall be proposed by either of the parties or their agents. Section 121. The testimony to be taken by either party to the contest shall be confined to the proof or disproof of the facts alleged or denied in the notice and answer mentioned in sections one hundred and five and one hundred and six. , Section 122, The officer shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents, to be reduced to writing in his presence, and in the presence of the parties or their agents, if attending, and to be duly attested by the wit- nesses respectively. Section 123. The officer shall have power to require the production of papers; and, on the refusal or neglect of any person to produce and deliver up any paper or papers in his possession, pertaining to the election, or to produce and deliver up certified or sworn copies of the same, in case they may be official papers, such persons shall be liable to all the penalties prescribed in section one hundred and sixteen. All papers thus produced, and all certified or sworn copies of official papers, shall be transmitted by the officer, with the testimony of the witnesses, to the clerk of the house of representatives. Section 124, The taking of the testimony may, if so stated in the notice, be adjourned from day to day. Section 125. The notice to take depositions, with the proof or acknowledgment of the service thereof, and a copy of the subpoena, where any has been served, shall be attached to the depositions when completed. Section 126. A copy of the notice of contest, and of the answer of the returned member, shall be prefixed to the depositions taken, and transmitted with them to the clerk of the house of representatives. Section 127. All officers taking testimony to be used in a contested election case, whether by deposition or otherwise, shall, when the taking of the same is com- 270 SUFFRAGE AND ELECTIONS. pleted, and without unnecessary delay, certify and care- fully seal and immediately forward the same, by mail, addressed to the clerk of the house of representatives of the United States, Washington, D. C.; and shall also indorse upon the envelope containing such deposition or testimony, the name of the case in which it is taken, together with the name of the party in whose behalf it is taken, and shall subscribe such indorsement. Upon the written request of either party, the clerk of the house of representatives shall open any deposition at any time after he shall have received the same, and he may fur- nish either party with a copy thereof. (The words of this section requiring the clerk of the house to open any deposition, and authorizing him to furnish a copy to either party, repealed. ] Section 128. Every witness attending by virtue of any subpoena herein directed to be issued, shall be entitled to receive the sum of seventy-five cents for each day’s attendance, and the further sum of five cents for every mile necessarily traveled in going and returning. Such allowance shall be ascertained and certified by the officer taking the examination, and shall be paid by the party at whose instance such witness was summoned. (See. section 130.) Section 129. Each judge, justice, chancellor, chief ex- ecutive officer of a town or city, register in bankruptcy, notary public, and justice of the peace, who shall be ne- cessarily employed, pursuant to the provisions of this chapter, and all sheriffs, constables, or other officers who may be employed to serve any subpoena or notice herein authorized, shall be entitled to receive from the party at whose instance the service shall have been performed, such fees as are allowed for similar services in the state wherein such service may be rendered. Section 130. No payment shall be made by the house of representatives, out of its contingent fund or other- wise, to either party to a contested election case, for ex- penses incurred in prosecuting or defending the same. | ELECTION OF FEDERAL OFFICERS. 271° Act of March 3, 1879. That hereafter no contestee or contestant for a seat in the house of representatives shall be paid exceeding two thousand dollars for expenses in election contests; and before any sum whatever shall be paid td a con- testant or contestee for expenses of election contests, he shall file with the clerk of the committee on elections a full and detailed account of his expenses, accompanied by the vouchers and receipts for each item, which ac- count and vouchers shall be sworn to by the party pre- senting the same, and no charges for witness fees shall be allowed in said accounts, unless made in strict con- formity to section one hundred and twenty-eight revised statutes of the United States. THE ELECTIVE FRANCHISE. ’ [From the United States Revised Statutes. ] Section 2004. All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or other territo- rial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstand- ing.? - Pantie 2005. When, under the authority of the con- stitution or laws of any state or the laws of any territory, any act is required to be done as a prerequisite or quali- fication for voting, and by such constitution or laws per- sons or officers are charged with the duty of furnishing to citizens an opportunity to perform such prerequisite 1, 2 Ahbott U. §., 120; McKay v. Campbell, 1 Saw., 374; U.S. v. Reese et al, 92 U.S. 214; U.S. v. Cruikshank, 92 U.S, 542. 272 SUFFRAGE AND ELECTIONS. or to become qualified to vote, every such person and officer shall give to all citizens of the United States the same and equal opportunity to perform such prere- quisite, and to become qualified to vote. Section 2006. Every person or officer charged with the duty specified in the preceding section, who refuses or knowingly omits to give full effect to that section, shall forfeit the sum of five hundred dollars to the party aggrieved by such refusal or omission, to be recovered by an action on the case, with costs, and such allowance for counsel fees as the court may deem just. _ Section 2007. Whenever, under the authority of the constitution or laws of any state or the laws of any ter- ritory, any act is required to be done by a citizen as a prerequisite to qualify or entitle him to vote, the offer of such citizen to perform the act required to be done, shall, if it fail to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such perform- ance or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing to vote, and being other- wise qualified, shall be entitled to vote in the same man- ner and to the same extent as if he had in fact per- formed such act. Section 2008. Every judge, inspector, or other officer of election whose duty it is to receive, count, certify, reg- ister, report, or give effect to the vote of such citizen, who wrongfully refuses or omits to receive, count, certify, register, report, or give effect to the vote of such citizen upon the presentation by him of his affidavit, stating such offer and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall forfeit the sum of five hundred dollars to the party aggrieved by such re- fusal or omission, to be recovered by an action on the case, with costs, and such allowance for counsel fees as the court may deem just. Section 2009. Every officer or other person, having ELectTion oF FEDERAL OFFICERS, 273 powers or duties of an official character to discharge under any of the provisions of this title, who, by threats or any unlawful means, hinders, delays, prevents, or ob- structs, or combines and confederates with others to bin- der, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote, or from voting at any election in any state, territory, dis- trict, county, city, parish, township, school district, mu- nicipality, or other territorial subdivision, shall forfeit the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with costs, and such allowance for counsel fees as the court may deem just.! Section 2010. Whenever any person is defeated or de- prived of his election to any office, except elector of pre- sident or vice president, representative or delegate in congress, or member of a state legislature, by reason of the denial to any citizen who may offer to vote, of the right to vote, on account of race, color, or previous con- ‘ dition of servitude, his right to hold and enjoy such office, and the emoluments thereof, shall not be impaired by such denial; and the person so defeated or deprived may bring any appropriate suit or proceeding to recover possession of such office, and in cases where it appears that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on’ account of race, color, or pre- vious condition of servitude, such suit or proceeding may ‘be instituted in the circuit or district court of the United States of the circuit or district in which such person re- sides. And the circuit or district court shall have, con- currently with the state courts, jurisdiction thereof, so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the constitution of the United States, and secured herein.? Section 2011. Whenever, in any city or town having 1. Seely v. Knox, 2 Woods, 368. 2. Ex parte Warmouth, 17 Wall, 64. See sections 563 and 629, ante, 18 274 SUFFRAGE AND ELECTIONS. upward of twenty thousand inhabitants, there are two citizens thereof, or whenever, in any county or parish, in any congressional district, there are ten citizens thereof, of good standing, who prior to any registration of voters for an election for representative or delegate in the con- gress of the United States, or prior to any election at which a representative or delegate in congress is to be voted for, may make known in writing, to the judge of the circuit court of the United States for the circuit wherein such city or town, county or parish, is situated, their desire to have such registration or such election, or both, guarded and scrutinized, the judge, within not less than ten days prior to the registration, if one there be, or, if no registration be required, within not less than ten days prior to the election, shall open the circuit court at the most convenient point in the circuit. Section 2012. The court, when so opened by the judge, shall proceed to appoint and commission, from day to day and from time to time, and under the hand of the judge, and under the seal of the court, for each election district or voting precinct, in such city or town, or for such election district, or voting precinct, in the congres- sional district, as may have applied, in the manner hereinbefore prescribed, and to revoke, change, or renew such appointment from time to time, two citizens, resi- dents of the city or town, or of the election district, or voting precinct, in the county or parish, who shall be of different political parties, and able to read and write the English language, and who shall be known and desig- nated as supervisors of election. See 5521 and 5522. Section 2018. The circuit court, when open by the judge, as required in the two preceding sections, shall” therefrom and thereafter, and up to, and including, the day following the day of election, be always open for the transaction of business under this title, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time; and a judge, sitting at chambers, shall have the same powers and jurisdiction, including the power of keeping order ELEcTION OF FEDERAL OFFICERS. 275 and punishing any contempt of his authority, as when sitting in court. Section 2014. Whenever, from any cause, the judge of the circuit court, in any judicial circuit, is unable to per- form and discharge the duties herein imposed, he is required to select and assign to the performance thereof, in his place, such one of the judges of the district courts, within his circuit, as he may deem best; and upon such selection and assignment being made, the district judge, so designated, shall perform and discharge, in the. place of the circuit judge, all the duties, powers, and obliga- tions imposed and conferred upon the circuit judge by the provisions hereof. Section 2015. The preceding section shall be construed to authorize each of the judges of the circuit courts of the United States to designate one or more of the judges of the district courts, within his circuit, to discharge the duties arising under this title. Section 2016. The supervisors of election, so appointed, are authorized and required to attend, at all times and places fixed for the registration of voters, who, being rezistered, would be entitled to vote for a representative or delegate in Congress, and to challenge any person offer- ing to register; to attend, at all times and places, when the names of registered voters may be marked for challenge, and to cause such names registered as they shall deem proper to be so marked; to make, when required, the lists, or either of them, provided for in sec- tion two thousand and twenty-six and verify the same; and upon any occasion, and at any time, when in attendance upon the duty herein prescribed, to personally inspect and scrutinize such registry, and, for purposes of identification, to affix their signature to each page of the original list, and of each copy of any such list of registered voters, at such times, upon each day when any name may be received, entered, or registered, and in such manner as will, in their judgment, detect and expose the im- proper or wrongful removal therefrom, or addition thereto, of any name. : Section 2017. The supervisors of election are authorized 276 SUFFRAGE AND ELECTIONS. and required to attend at all times and places for holding elections of representatives or delegates in congress, and for counting the votes cast at such elections; to challenge any vote offered by any person whose legal qualifications the supervisors, or either of them, may doubt; to be and remain where the ballot-boxes are kept, at all times after the polls are opened, until every vote cast at such time and place has been counted, the canvass of all votes polled wholly completed, and the proper and requisite certificates or returns made, whether the certifi- cates or returns be required under any law of the United States, or any state, territorial, or municipal law, and to personally inspect any [and] scrutinize, from time to time, and at all times, on the day of election, the manner in which the voting is done, and the way and method in which the poll-books, registry-lists, and tallies or check- books, whether the same are required by any law of the United States, or any state, territorial, or municipal law, are kept. Section 2018. To the end that each candidate for the office of representative or delegate in congress may obtain the benefit of every vote for him cast, the supervisors of election are, and each of them is, required to personally scrutinize, count, and canvass each ballot in their elec- tion district or voting precinct cast, whatever may be the indorsement on the ballot, or in whatever box it may have been placed or be found; to make and forward to the officer who, in accordance with the provisions of sec- tion two thousand and twenty-five, has been designated as the chief supervisor of the judicial district in which the city or town wherein they may serve, acts, such certificates and returns of all such ballots as such officer may direct and require, and to attach to the registry list, and any and all copies thereof, and to any certificate, statement, or return, whether the same, or any part cr portion thereof, be required by any law of the United States, or of any state, territorial, or municipal law, any statement touching the truth or accuracy of the registry, or the truth or fairness of the election and canvass, which the supervisors of the election, or either of them, may ELectTion OF FEDERAL OFFICERS. 277 desire to make or attach, or which should properly and honestly be made or attached, in order that the facts may become known. Section 2019, The better to enable the supervisors of election to discharge their duties, they are authorized and directed, in their respective election districts or vot- ing precincts, on the day of registration, on the- day when registered voters may be marked to be challenged, and on the day of election, to take, occupy, and remain in such position, from time to time, whether before or “behind the ballot-boxes, as will, in their judgment, best enable them to see each person offering himself for reg- istration or offering to vote, and as will best conduce to their scrutinizing the-manner in which the registration or voting is being conducted; and at the closing of the polls for the reception of votes, they are required to place themselves in such position, in relation to the ballot- boxes, for the purpose of engaging in the work of can- vassing the ballots, as will enable them to fully perform the duties in respect to such canvass provided herein, and shall there remain until every duty in respect to such canvass, certificates, returns, and statements has. been wholly completed. Section 2020. When, in any election district or voting precinct in any city or town, for which there have been appointed supervisors of election for any election at which a representative or delegate in congress is voted for, the supervisors of election are not allowed to exercise and discharge, fuliy and freely, and without bribery, so- licitation, interference, hinderance, molestation, violence, or threats thereof, on the part of any person, all the duties, obligations, and powers conferred upon them by law, the supervisors of election shall make prompt report, under oath, within ten days after the day of election, to the officer who, in accordance with the provisions of section two thousand and twenty-five, has been desig- nated as the chief supervisor of the judicial district in which the city or town wherein they served, acts, of the manner and means by which they were not so allowed to fully and freely exercise and discharge the duties and 978 SUFFRAGE AND ELECTIONS. obligations required and imposed herein. And upon receiving any such report, the chief supervisor, acting both in such capacity and officially as a commissioner of the circuit court, shall forthwith examine into all the facts, and he shall have power to subpcena and compel the attendance before him of any witness, and to admin- ister oaths and take testimony in respect to the charges made; and, prior to the assembling of the congress for ‘which any such representative or delezate was voted for, he shall file with the clerk of the house of representa- tives all the evidence by him taken, all information by him obtained, and all reports to him made. (Sec. 5522.) Section 2021. Whenever an election at which repre- sentatives or delegates in congress are to be chosen is held in any city or town of twenty thousand inhabitants or upward, the marshal for the district in which the city or town is situated shall, on the application, in writing, of at least two citizens residing in such city or town, appoint special deputy marshals, whose duty it shall be, when required thereto, to aid and assist the supervisors of election in the verification of any list of persons who may have registered or voted; to attend in each election district or voting precinct at the times and places fixed for the registration of voters and at all times or places when and where the registration may by law be scru- tinized, and the names of registered voters be marked for challenge; and also to attend, at all times for hold- ing elections, the polls in such district or precinct. Section 2022. The marshal and his general deputies, and such special deputies, shall keep the peace, and sup- port and protect the supervisors of election in the dis- charge of their duties, preserve order at such places of registration and at such polls, prevent fraudulent regis- tration and fraudulent voting thereat, or fraudulent con- duct on the part of any officer of election, and immedi- ately, either at the place of registration or polling place, or elsewhere, and either before or after registering or voting, to arrest and take into custody, with or without process, any person who commnits, or attempts or offers to commit, any of the acts or offences prohibited herein, ® ELEcTION oF FEDERAL OFFICERS, 279 or who commits any offence against the laws of the United States; but no person shall be arrested without process for any offence not committed in the presence of the marshal or his general or special deputies, or either of them, or of the supervisors of election, or either of them, and, for the purposes of arrest or the preservation of the peace, the supervisors of election shall, in the ab- sence of the marshal’s deputies, or if required to assist such deputies, have the same duties and powers as dep- uty marshals; nor shall any person, on the day of such election, be arrested without process tor any offence com- mitted on the day of registration. (See 5521, 5522.) Section 2023. Whenever any arrest is made, under any provision of this title, the person so arrested shall forth- with be brought before a commissioner, judge, or court of the United States for examination of the offences alleged against him; and such commissioner, judge, or court shall proceed in respect thereto as authorized by law in case of crimes against the United States. Section 2024. The marshal, or his general deputies, or such special deputies as are thereto specially empowered by him, in writing, and under his hand and seal, when- ever he, or either or any of them, is forcibly resisted in executing their duties under ‘this title, or shall, by vio- lence, threats, or menaces, be prevented from executing such duties, or from arresting any person who has coin- mitted any offence for which the marshal or his general or his special deputies are authorized to make such arrest, are, and each of them is, empowered tosummon and call to his aid the bystanders or posse comitatus of his district. Section 2025. The circuit courts of the United States for each judicial circuit shall name and appoint, on or before the first day of May, in the year eighteen hundred and seventy-one, and thereafter as vacancies may from any cause arise, from among the circuit court commis- sioners for each judicial district in each judicial circuit, one of such officers, who shall be known for the duties required of him under this title as the chief supervisor of elections of the judicial district for which he is a com- 280 SUFFRAGE AND ELECTIONS. missioner, and shall, so long as faithful and capable, dis- charge the duties in this title imposed. Section 2026. The chief supervisor shall prepare and furnish all necessary books, forms, blanks, and instruc- tions for the use and direction of the supervisors of elec- tion in the several cities and towns in their respective districts. He shall receive the applications of all parties for appointment to such positions; upon the opening, as contemplated in section two thousand and twelve, of the circuit court for the judicial circuit in which the com- missioner so designated acts, he shall present such appli- cations to the judge thereof, and furnish information to him in respect to the appointment by the court of such supervisors of election; he shall require of the super- visors of election, when necessary, lists of the persons who may register and vote, or either, in their respective election districts or voting precincts, and cause the names of those upon any such list, whose right to register or vote is honestly doubted, to be verified by proper inquiry and examination at the respective places by them as- signed as their residences ; and he shall receive, preserve and file all oaths of office of supervisors of election, and of all special deputy marshals appointed under the pro- visions of this title, and all certificates, returns, reports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise herein specially directed. Section 2027. All United States marshals and commis- sioners who in any judicial district perform any duties under the preceding provisions relating to, concerning, or affecting the election of representatives or delegates’ in the congress of the United States, from time to time, and with all due diligence, shall forward to the chief supervisor in and for their judicial district, all com- plaints, examinations, and records pertaining’ thereto, | and all oaths of office, by them administered to any. supervisor of election or special deputy marshal, in order that the same may be properly preserved and filed. Section 2028. No person shall be appointed a supervi- sor of election or a deputy marshal, under the preceding ELecTion oF FEDERAL OFFICERS. 281 provisions, who is not, at the time of his appointment, a qualified voter of the city, town, county, parish, election district, or voting precinct in which his duties are to be performed. Section 2029. The supervisors of election appointed for any county or parish in any congressional district, at the instance of ten citizens, as provided in section two thousand and eleven, shall have no authority to make arrests, or to perform other duties than to be in the im- mediate presence of the officers holding the election, and to witness all their proceedings, including the counting of the’ votes and the making of a return thereof. Section 2030. Nothing in this title shall be construed to authorize the appointment of any marshals or deputy marshals in addition to those authorized by law, prior to the tenth day of June, eighteen hundred and seventy- two. Section 2031. There shall be allowed and paid to the chief supervisor, for his services as such officer, the fol- lowing compensation, apart from and in excess of all fees allowed by law for the performance of any duty as cir- cuit court commissioner: For filing and caring for every return, report, record, document, or other paper required to be filed by him under any of the preceding provisions, ten cents; for affixing a seal to any paper, record, report, or instrument, twenty cents; for entering and indexing the records of his office, fifteen cents per folio; and for arranging and transmitting to congress, as provided for in section two thousand and twenty, any report, state- ment, record, return, or examination, for each folio, fif- teen cents; and for any copv thereof, or of any paper on file,a like sum. And there shall be allowed and paid to each supervisor of election, and each special deputy marshal who is appointed and performs his duty under the preceding provisions, compensation at the rate of five dollars per day for each day he is actualy on duty, not exceeding ten days; but no compensation shall be allowed, in any case, to supervisors of election, except to those appointed in cities or towns of twenty thousand or more inhabitants; and the fees of the chief supervisors 282 SuFFRAGE AND ELECTIONS. shall be paid at the treasury of the United States; such accounts to be made out, verified, examined, and certi- fied as in the case of accounts of commissioners, save that the examination or certificate required may be made by either the circuit or district judge. CRIMES AGAINST THE ELECTIVE FRANCHISE AND CIVIL RIGHTS OF CITIZENS. Section 5506. Every. person who, by any unlawful means, hinders, delays, prevents, or obstructs, or com- bines and confederates with others to hinder, delay, pre- vent, or obstruct any citizen from doing any act required to be done to qualify him to vote, or from voting at any election in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be fined not less than five hundred dollars, or be imprisoned not less than one month, nor more than one year, or be punished by both such fine and imprisonment.1 (See 2004 and 2010.) Section 5507. Every person who prevents, hinders, controls, or intimidates another from exercising, or in exercising, the right of suffrage, to whom that right is guaranteed by the fifteenth amendment to the constitu- tion of the United States, by means of bribery or threats of depriving such person of employment or occupa- tion, or of ejecting such person from a rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, shall be punished as pro- vided in the preceding section.? Section 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, 1. See cases in note to section 2004. 2. Slaughter House cases, 1 Woods, 21. ELEecTION oF FEDERAL OFFICERS. 2838 or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars, and imprisoned not more than ten years; and shall, moreover, be thereafter, ineligible to any office or place of honor, profit or trust, created by the constitution or laws of the United States. Section 5509. If, in the act of violating any provision in either of the two preceding sections, any other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment as is attached to such felony or misdemeanor by the laws of the State in.which the offence is committed. Section 5510. Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects, or causes to be subjected, any inhabitant of any state or territory to the deprivation of any rights, privileges, or, immunities, secured or protected by the constitution and. laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not more than one thousand dollars, or by im- prisonment not more than one year, or by both. Section 5511. If, at any election for representative or delegate in congress, any person knowingly personates and votes, or attempts to vote, in the name of any other person, whether living, dead, or fictitious; or votes more than once at the same election for any candidate for the same office; or votes at a place where he may not be lawfully entitled to vote; or votes without having a law- ful right to vote; or does any unlawful act to secure an opportunity to vote for himself, or any other person ; or by force, threat, intimidation, bribery, reward, or offer thereof, unlawfully prevents any qualified voter of any state or of any territory, from freely exercising the right of suffrage, or by any such means induces any voter to refuse to exercise such right, or compels or induces by 284 SUFFRAGE AND ELECTIONS. any such means any officer of an election in any such state or territory to receive a vote from a person not legally qualified or entitled to vote; or interferes in any manner with any officer of such election in the discharge of his duties; or by any such means, or other unlawful means, induces any officer of an election or officer whose duty it is to ascertain, announce, or declare the result of any such election, or give or make any certificate, docn- ment, or evidence in relation thereto, to violate or refuse to comply with his duty or any law regulating the same; or knowingly receives the vote of any person not entitled to vote, or refuses to receive the vote of any person entitled to vote, or aids, counsels, procures, or advises any such voter, person, or officer to do any act hereby made a crime, or omit to do any duty the omission of which is hereby made a crime, or attempt to do so, he shall be punished by a fine of not more than five hundred dol- lars, or by imprisonment not more than three years, or by both, and shall pay the costs of the prosecution.! Section 5512. If, at any registration of voters for an election for representative or delegate in the congress of the United States, any person knowingly person- ates and registers, or attempts to register, in the name of any other person, whether living, dead, or fictitious, or fraudulently register or fraudulently attempts to reg- ister, not having a lawful right so to do; or does any unlawful act to secure registration for himself or any other person; or by force, threat, menace, intimidation, bribery, reward, or offer, or promise there- of, or other unlawful means, prevents or hinders any person having a lawful right to register from duly exercising such right; or compels or induces, by any such means, or other unlawful means, any officer of reg- istration to admit to registration any person not legally entitled thereto, or interferes in any manner with any officer of registration in the discharge of his duties, or by. any such means, or other unlawful means, induces any 1. U.S. v. Souders, 2 Abbot, C. C., 456; U.S. v. Anthony, 11 Blatch., 200; U.S. v. Hendric, 2 Sawyer, 476 and 479; U.S. v. O'Neill, 2 Saw., 481; U.S., Johnson, Ibid, 482. ELEcTION OF FEDERAL OFFICERS. 285 officer of registration to violate or refuse to comply with his duty or any law regulating the same; or if any such officer knowingly and willfully registers as a voter any person not entitled to be registered, or refuses to so reg- ister any person entitled to be registered ; or if any such officer or other person who has any duty to perform in relation to such registration or election, in ascertaining, announcing, or declaring the result thereof, or in giving or making any certificate, document, or evidence in rela- tion thereto; knowingly neglects or refuses to perform any duty required by law, or violates any duty imposed by law, or does any act unauthorized by law relating to or affecting such registration or election, or the result thereof, or any certificate, document, or evidence in relation thereto, or if any person aids, counsels, procures, or advises any such voter, person, or officer to do any act hereby made a crime, or to omit any act the omission of which is.hereby made a crime, every such person shall be punishable as prescribed in the preceding section.’ Section 5513. Every registration made under the laws of any state or territory, for any state or other election at which such representative or delegate in congress may be chosen, shall be deemed to be a registration within the meaning of the preceding section, notwithstanding such registration is also made for the purpose of any state, territorial, or municipal election. Section 5514. Whenever the laws of any state or ter- ritory require the name of a candidate or person to be voted for as representative or delegate in congress shall be printed, written, or contained on any ticket or ballot with the names of other candidates or persons to be voted for at the same election as state, territorial, muni- cipal, or local officers, it shall be deemed sufficient prima facie evidence to convict any person charged with voting, or offering to vote, unlawfully, under the provisions of this chapter, to prove that the person so charged cast or offered to cast such a ticket or ballot whereon the name of such representative or delegate might by law be 1. U. S. ¥. Quinn, 8 Blatch, 48; U.S. v, Hirschfield, 13 Blatch, 330; Harrison v. Hadley, 2 Dill, 229. 286 SUFFRAGE AND ELECTIONS. printed, written, or contained, or that the person so charged committed any of the offenses denounced in this chapter with reference to such ticket or ballot. Section 5515. Every officer of an election at which any representative or delegate in congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district, or munici- pal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized, with in- tent to affect any such election, or the result thereof; or who fraudulently makes any false certificate of the result of such election in regard to such representative or dele- gate; or who withholds, conceals, or destroys any certifi- cate of record so required by law respecting the election of any such representative or delegate; or who neglects or refuses to make and return such certificate as required by law; or who aids, counsels, procures, or advises any voter, person, or officer to do any act by this or any of the preceding sections made a crime, or to omit to do any duty the omission of which is by this or any of such sections made a crime, or attempts to do so, shall be punished as prescribed in section fifty-five hundred and eleven! Section 5516. Every person who willfully obstructs, hinders, or prevents any officer or other person charged with the execution of any warrant or process issued under the provisions of sections nineteen hundred and eighty-four and nineteen hundred and eighty-five, title “Civil Rights,” or any person lawfully assisting him, from arresting any person for whose apprehension such warrant or process may have been issued ; or rescues or attempts to rescue such person from the custody of the officer or other person lawfully assisting when so ar- rested, pursuant to the authority herein given; or aids, 1. U.S. v. Clayton, 19 Am. L. Rep., 737; Same, 2 Dill., 219; Harrison y. Hadley, Ibid., 229. Erection oF FEDERAL OFFICERS. 287 abets, or assists any person so arrested, directly or indi- rectly, to escape from the custody of the officer or other person legally authorized to arrest the party; or harbors or conceals any person for whose arrest a warrant or process has been issued, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, shall, for any of such offences, be subject to a fine of not more than one thousand dollars, or imprisonment not more than six months, or both. Section 5517. Every marshal and deputy marshal who refuses to receive any warrant or other process when ten- dered to him, issued in purstiance of the provisions of section nineteen hundred and eighty-five, title ‘“ Civil Rights,” or refuses or neglects to use all proper means’ diligently to execute the same, shall be liable to a fine in the sum of one thousand dollars, for the benefit of the party aggrieved thereby. Section 5518. If two or more persons in any state or territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, - trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any state, district, or place where his duties as an officer are required to be performed, or to injure him in his person or pro- perty on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge there- of, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; each of such persons shall be punished by a fine of not less than five hundred nor more than five thou- sand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment. Section 5519. If two or more persons in any state or territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of per- sons of the equal protection of the laws, or of equal 288 SUFFRAGE AND ELECTIONS. privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or secur- ing to all persons within such state or territory the equal protection of the laws; each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprison- ment. Section 5520. If two or more persons in any state or territory conspire to prevent, by force, intimidation, or threat, any citizen who is lawfully entitled to vote from giving his support or advocacy,'in a legal manner, to- ward or in favor of the election of any lawfully qualified person as an elector for president or vice president, or as a member of the congress of the United States ; or to in- jure any citizen in person or property on account of such support or advocacy, each of such persons shall be ptn- ished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment. Section 5521. If any person be appointed a supervisor of election or a special deputy marshal under the provi- sions of title “The Elective Franchise,” and has taken the oath of office as such supervisor of election or such special deputy marshal, and thereafter neglects or re- fuses, without good and lawful excuse, to perform and discharge fully the duties, obligations, and requirements of such office until the expiration of the term for which he was appointed, he shall not only be subject to removal from office with loss of all pay or emoluments, but shall be punished by imprisonment for not less than six months nor more than one year, or by a fine of not less than two hundred dollars and not more than five hun- dred dollars, or by both fine and imprisonment, and shall pay the costs of prosecution. Section 5522. Every person, whether with or without any authority, power, or process, or pretended authority, ELECTION OF FEDERAL OFFICERS, 289 power, or process, of any state, territory, or municipality, who obstructs, hinders, assaults, or by bribery, solicita- tion, or otherwise, interferes with or prevents the super- visors of election, or either of them, or the marshal or. his general or special deputies, or either of them, in the performance of any duty required of them, or either of them, or which he or they, or either of them, may be authorized to perform by any law of the United States, inf the execution of process or otherwise, or who by any of the means before mentioned hinders or prevents the free attendance and presence at such places of registration or at such polls of election, or full and free access and egress to and from any such place of registration or poll of election, or in going to and from any such place of registration or poll of election, or to and from any room where any such registration or election or canvass of votes, or of making any returns or certificates thereof, may be had, or who molests, interferes with, removes, or ejects from any such place of registration or poll of elec- tion, or of canvassing votes cast thereat, or of making returns or certificates thereof, any supervisor of election, the marshal or his general or special deputies, or either of them, or who threatens, or attempts, or offers so to do, or refuses or neglects to aid and assist any supervi- sor of election, or the marshal, or his general or special deputies, or either of them, in the performance of his or their duties, when required by him or them, or either of them, to give such aid and assistance, shall be liable to instant arrest, without process, and shall be punished by imprisonment not more than two years, or by a fine of not more than three thousand dollars, or by both such fine and imprisonment, and shall pay the cost of the prosecution. Section 5523. Every person who, during the progress of any verification of any list of the persons who may have registered or voted, which is had or made under any of the provisions of title “ The Elective Franchise,” refuses to answer, or refrains from answering, or, answering, knowingly gives false information in respect to any in- quiry lawfully made, shall be punishable by imprison- 19 290 SUFFRAGE AND ELECTIONS. ment for not more than thirty days, or by a fine of not more than one hundred dollars, or by both, and shall pay the costs of the prosecution, Section 5528. Every officer of the army or navy, or other person in the civil, military, or naval service of the United States, who orders, brings, keeps, or has under his authority or control, any troops or armed men at any place where a general or special election is held in any state, unless such force be necessary to repel armed enemies of the United States, or to keep the peace at the polls, shall be fined not more than five thousand dollars, and suffer imprisonment at hard labor not less than three months nor more than five years. Section 5529, Every officer or other person in the mili- tary or naval service, who, by force, threat, intimidation, order, advice, or otherwise, prevents, or attempts to pre- vent, any qualified voter of any state from freely exer- cising the right of suffrage at any general or special election in such state, shall be fined not more than five thousand dollars, and imprisoned at hard labor not more than five years. Section 5530. Every officer of the army or navy who prescribes or fixes, or attempts to prescribe or fix, whether by proclamation, order, or otherwise, the qualifications of voters at any election in any state, shall be punished as provided in the preceding section. Section 5531. Every officer or other person in the mili- tary or naval service who, by force, threat, intimidation, order, or otherwise, compels, or attempts to compel, any officer holding an election in any state to receive a vote from a person not legally qualified to vote, or who imposes, or attempts to impose, any regulations for conducting any general or special election in a state different from those prescribed by law, or who interferes in any manner with any officer of an election in the discharge of his duty, shall be punished as provided in section fifty-five hun- dred and twenty-nine. Section 5532. Every person convicted of any of the offences specified in the five preceding sections shall, in addition to the punishments therein severally prescribed, ELECTION OF FEDERAL OFFICERS. 291 be disqualified from holding any office of honor, profit, or trust under the United States; but nothing in those sections shall be construed to prevent any officer, soldier, sailor, or marine from exercising the right of suffrage in any election district to which he may belong, if other- wise qualified according to the laws of the state in which he offers to vote. Nots.—The decisions in cases arising under the foregoing sections have been to the following effect : ‘That the determination of who shall be voters rests with the states subject only to the condition that, in exercising that power, no distinction shall be made for the causes named in the amendments to the constitution. See chapter I., and the cases there cited. That congress has power to legislate for the protection of persons voting at federal elections independent of the fourteenth and fifteenth amendments. U.S. v. Crosby, 1 Hughes, 448. That in criminal prosecutions for interfering with or obstructing voters, it must be charged in the indictment and proved that the act was committed on account of race, color, or previous condition of servitude; that section 2004 simply declares a right without providing a penalty; that sections 2005 and 2006 do not apply to inspectors, and that sections 2007, 2009 and 5506, not being confined in their operation to unlawful discrimination on account of race, color or previous servitude, are not authorized by the fifteenth amendment. U.S. v. Reese, 2 Otto, 214; same v. Canter, 2 Bond, 389. That in a civil suit under section 2009, the declaration must aver that force, bribery, threats, intimidation or other unlawful means were used to prevent the plaintift’s voting. An allegation that the unlawful means was the erroneous judgment of the election officer is insufficient. Seely v. Knox, 2 Woods, 368. That sections 2011, 2012 and 2025, providing for the appointment of supervisors, confers a judicial power, and is in accordance with article IT., section 2, of the constitution. U.$. C. C., Southern Ohio District, by Baxter and Swing, J. J. That the deputy marshals have no right to be in the room in which the judges and supervisors are performing, or to go behind the ballot-boxes, unless necessary to suppress actual violence or to prevent fraud, when requested to do so by the judges and supervisor. U.S. v. Gitma, 3 Hugh, 549, 551. : That an indictment, under section 5508, which, in general language, charges an intent to hinder and prevent citizens of the United States, of African descent, therein named, in the free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively ‘as citizens of the United States and of the State of Louisiana, because they were persons of African descent, and an intent to hinder and prevent them in the several and free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States, does not specify any particular right the enjoyment of which the conspirators intended to hinder 292 SUFFRAGE AND ELECTIONS. or prevent, is too vague and general, and is therefore not good. The act makes the crime consist in the unlawful combination, with intent to pre- vent the enjoyment of any right granted or secured by the constitution, All rights are not so granted or secured. Whether one is so or not, is a question of law to be decided by the court. The indictment should, there- fore, state the particulars, to inform the court as well as the accused. United States v. Cruikshank, 92 U.S. (2 Otto), 542. (For rulings on indictments under other sections, see U. S. v. Souders, 2 Abbott’s U. S., 456; U.S. v. Johnson, 2 Sawyer, 482; U.S. v. Hirschfield (unlawful registering), 13 Blatchford, 330; U.S. v. Barnabo, 14 Blatch., 74 That section 5518 is constitutional. U.S. v. Quinn, 8 Blatch., 48. INDEX. ABBREVIATION me of name in ballot, note a t0.......sssssesceeseeeeccesseoeee ee 138-9, 141 ABODE, place of, not necessarily the residence...........0ssscsssceseeseeeees 92 ABSENCE, for temporary purpose, with the intent to return, does not change domicile or residence...........cccssssecsseeeceseceneeereres a Tength of no Criterion.............csssseccsscsceersceee eessceecesesccenee 90 ALABAMA, ‘ suffrage article of constitution Of..........:csssscceseeseeereeesseeeee 58 ALIENS AND NATURALIZATION 193, 208 (See naturalization, residence for naturalization, seamen, mi- nors, declaration of intention, soldiers.) WHO ARE wesssneseassewscerasives suis suececvenssossenivesvensstevnnsscesseeasevanss 193 may be voters under state constitution...... .....cscceeeceecseseees 4 if elected may hold office if naturalized before term begins... 206 may vote as soon as naturalized, if otherwise qualified......... 207 AMENDMENT, | the fifteenth to the United States constitution............cceeee « 250 its effect Upon Suffrage... .....csec-cecesecscesecececsessensecseaeeesseees 2 does not confer suffrage........ccesssccecersecenescescecuenestetesenseres 5 the fourteenth to the United States constitution.........-.0.00+ 249 APPORTIONMENT, of congressional representatives (constitutional provision and Sec. 23)......c.scsceceee sesenssseseeesses Mieleidsaivicchescteceenseceets « 260 ARKANSAS— suffrage article of constitution Of.........sccsssesssesenreeseneee 60 ASYLUMS, in territory of the United States—inmates of not legal voters, 96 BALLOT-BOx— effect of not using one of statutory description.........:::ssceeee 136 custody of after election..........ssssseeserssseeeseeeeseescneeeecseees 136 294 InpDEx. Page. BALLOTS— HOW TO BE COUNTED......sc00 cccccscencessceccasecsnsseeceausseceseessseess 129 when “junior” is omitted........c.esceeee 129 may be explained, but not contradicted.. . 137 when extrinsic evidence admissible............ssscssecsseeeseereraee 137 abbreviations and written names, rule 4s t0............66. 138-9, 141 the intention ot the voter to prevail imperfect ballots—when worthless............ mistake in designation of office voted for... where there is no designation of Off1ce........csseseeeseseeeeeeceeore LAWFUL, GE AE ER a i rns ica anata Conk la 143-146 the object of secrecy must not be defeated 145 LOSs OF in a subdivision of an election district..........:0.0:sesseseeeeeeees 157 WHEN THE BEST EVIDENCE in election Contests.........sssesccscceccercevsstenteesesceseeeaeeenerenees 239 BARGAINS to influence voters illegal..........c.sssescscsscesesseececeeaceeere 220-222 Courts Will not ENfOrce.........seceeeesscesccereeeeetenserserseeseneseess 222 BRIBERY, A CAUSE FOR DISFRANCHISEMENT ....csccsseesscesveseecusecesssesenees 215-16 UD AL ADAIN 530.0 c0secsinsinecasecttvestudesdegeechaneesedeseamsseeeasenee ees 59 Califotinia sc. 53.- cascss eawssneadsvsdavertisoeaveavursaestetenearts 49 Connecticut... ae 25 Delaware...... wes 37 Florida...... 68 Georgia 52 KR aiSa8 33s censasn cai caeeneavedsas roesmeriorrarannrene 36 Kentucky........ 53 Louisiana...........cccecceeee seers 56 Maryland........... tue ee 39 Mississippi 58 MissO url jesse ssssciscssainenevaeenrwe stavaveotensuueeyesoaiavsaleeess 46 New Jersey... 30 New York 27 i 31 34 Pennsylvania...... 41 Rhode Island... 20 Tennessee.......ccesscoussssseseeesscenes cmva 954 INDEX. 295 BRIBERY, wr A CAUSE FOR DISFRANCHISEMENT, in SPeOx AS esas. gap ekcs obehes edbb bese peasgeeev ny Gus cubtevacinecbuaivediees . 66 VWALPINI Gs ce seuscssensss wean csncteansnacnessawsesssevacwen ens stwesenereess 43 West Virginia 61 WiISCONBID........0c0008 cence 33 BRIBERY AND CORRUPTION..........cccccescsseseececeeeeeeeeees 215-227 a disqualification from holding office............:sccssscccceesesees 216 a MisdeMeaNOL.....c.ceceere Bau sBisseebeeubesc tea wesseudepahcadancenedeae 216 the crime defined .........cccccecssscssecesenceeeeseeeseseeeeeeesseees fies 217 offer of candidate to perform duty for less salary, bribery..... 217 communities may be bribed as well as individuals......... 217-219 bargains to influence voters illegal.........c:ssscsseceseeeeeeeseeeee 220 doctrine applies to primaries....... piteaseasate sade ne geassaeuinaaaneaaes 220 CALIFORNIA, suffrage article of constitution Of........ccccssssecessreeseaseeersees 48 CANVASSERS, Cuties and powers Of......ssscsecsrsseseeseessseeenceseasessascesnes 155-161 duties purely ministerial, unless otherwise provided...... 155, 159 cannot inquire into informalities or irregularities......... 156, 158 may be satisfied of authenticity of returns............cee 158, 160 cannot go behind them when authentic and regular, SVEN: FOP TPAUG secesciaesersevoceersaciesseccagsedsecdesdeccteewaseas 158, 160 cannot reconvene after adjournment sine dié......sscecsesssseeeees 161 CERTIFICATE OF RETURNING OFFICER..........-+2:-000+0 230--236 prima facie evidence of holder’s title........... wu 230-285 the form immaterial.........c..ssscscsccsererecceerssanterserensseesesees 232 effect destroyed by contradictory recital....... ..--essesesereesen 233 cannot be impeached in collateral proceeding..........+.s00++ 235-6 CHILD, ILLEGITIMATE, minor when father naturalized........s:cccreresssesseeseeeneneneneees 197 OF CITIZEN BORN ABROAD, : a citizen of the United States.......ccccssesssecerseersssareessesenenes 193 person who has declared intention and dies before naturali- zation becomes @ Citizen at MAjOFity......cssccereecerseeesererees 194 CHILD'S DOMICILE that of parent.......... saueens bees veenenecaeserereseenenees cerns senses . 120 296 INDEX. CHILD’S. DOMICILE, guardian cannot Change......sssscceccreseseeesccnvcescoees cannot be changed by minor during minority CITIZENS— children of, born abroad..........ccseesencovsceeececeeesecceseenesseeees 193 all persons born in the United States are.. see. 195, 249 entitled to vote if otherwise qualified at ‘all élections (Sees. 2004 to 2009).......ccsssceeecesessarsccsceecsseeesreeanens 271-273 if prevented from qualifying may vote, (Secs. 2005 to 2009 )isissiscisessaviteca oni vesnnsesssciaudsaeseaaasasaessccdeeresiceaess 271-273 CITIZENSHIP— two, kinds: Of)... sisessensonedexercessavsonserscosesssornts a rere ase 1 state, rights of distinct from federal........c..sceceseeseeeeseseeeens 2 United States—rights Of.......ccccscesssencesecevsceeecssceeseeseeserses 193 not forfeited by residence abroad..........s.ssesesseeeeseneeeeseneeeas 194 duties of cannot be renounced at Will........cscseerscesssenerceeevees 208 COLLEGE STUDENTS, suffrage residence Of..........c.cesscesseseceesceeserencetseveescseere 98-108 COLORADO, suffrage article of constitution Of.........scse0 Mawouvaddedesstedewae ee 69 COMMISSIONS, effect and revocation Of......csussesescesceseeecrceeeseeesenen ees 243-248 issue of to elective officers a ministerial duty..........ssseeeeeee 244 they confer a vested right subject only to judicial decision..... 244 evidence only of appointment..........cssescseseecseceeteenereneeesee 247 COMPUTATION OF TIME— the rule for.......... ed aisuneta beaeagcecbenavaceess euneeuevecoueeaesunrennee 73 CONDUCT OF’ ELECTIONS— COUNTING THE VOTES ..ccecscccccescserscncesecevcceenecsseccescseeaeses 137-143 doubtful ballot may be explained........... eeeeeees stiaetneeds 137-141 ' abbreviations of candidates’ name.... side abensee tame bens 138-9 , the voter’s intention should govern.............. se 189-141, written name should be counted........ccsssccsseccsseessreeeseseesees 139 where designation of office is ouaitted, sasiacwariedes suse suensesoss 143 lawful ballots, what are and what are NOt.....sssseusesseeeee 143-146 pairing off of voters of no legal effect seevesteaeeetets 146 DUTIES AND POWERS OF CANVASSERS....... ane se 155-161 ministerial Only............:seecssssssessescecenees cee see 155-158 may enquire into genuineness of the returns.........esssece 158, 160 if genuine cannot go behind them............s.ece.seceeeeeeess 158, 160 cannot reconvene after adjournment sine die..............ceeeeees 161 INDEX. 997 CONDUCT OF ELECTIONS— oe IRREGULARITIES IN iiisiessscs cescves asseasasineoassosawes sienseearsacnesaorens 123 when they do not invalidate.........:csseeecsseveceeeee ens fasaenaees 123 opening and closing polls at improper time... 123-4, 128, 129-31 day of holding election cannot be changed..........ccscssessenees 124 place of holding election, when and how may be changed..... 124 failure of election officers to qualify does not invalidate ClOCHON ccvvericcassves coveesenssedencnsveatecdsasmeoeasseead Sesteoe 126-133 NOr Cisqualification.......ccscscseeesseccnsseecceeeeees 126, 127, 130, 135 want of notice of general and other elections.... 127, 128, 151-155 reception of illegal votes..........sssesssseescsseeeeeesseeeceneeesenees 127 omission to appoint registration board é 127 oath of officers, not material what book taken upon 130 what irregularities invalidate the election........c.cccccereees 133-4 adjourning and removing polls.........:ssssereeseseeee seeeecee erste 133 rule where errors cannot be corrected and result is made Aoubtfilwersecscissees, seseesvebecssescocecdvacnedssuwanecssresaesnavens se 135 different rules applied to directory and mandatory statutes... 136 use of other than regular ballot-box........ccsscsesserre ereereeeees 136 keeping of ballot-box after election.......s...sssssseesereenereenees 136 MAJORITY VOTE— ow CONStrUcd.........seccceceecesereceeseeeccssecseseaerees seasons 147-149 MINORITY, when elections by are gO0d........sssessseessenereseseseeesseees 149-151 PLURALITY sufficient when not otherwise provided ......sccccsssccecseseoeeeeee 149 CONGRESSIONAL REPRESENTATIVES— apportionment of (constitutional provision and See. 23)........ 260 CONNECTICUT— suffrage article of constitution Of........6ssseessssmsenescsee seers 25 CONSPIRING, to hinder, injure or intimidate votes, penalty for (Secs. 5508, 5519, 5520... .ceccceceveneneccsescsseessecsenerecece tes teeasones 282, 287-8 to interfere with officers in performance of duty (Sec. 5518)... 287 CONSTITUTION—UNITED STATES— effect of amendments on suffrage ......sussseeeee sesessee recesses 2 the fifteenth amendment t0.......:sscsesceerseeneeneeceeseaensteneasees 250 fourteenth amendment to.........+ é Waite sete aSacsumeseeisadaaenen 249 CONSTITUTIONS—STATE— suffrage regulations of. (See State Constitutions.) CONTESTED ELECTIONS. (See Election Contests.) 298 INDEX. CONTINGENT REMOVAL OF RESIDENCE— the rule 28 t0.......scceecsscancesceeseeees teeneeseeneecossoncee coneneees 90, 93 CONTRACTS, ELECTION. (See Election contracts.) CORRUPTION. (See Bribery and Corruption).......ccsssssssesesorereneeseeees 215-227 COURTS— : United States Circuit and District—jurisdiction of in con- tested federal elections..........ccccessceccccerscsssescoesneeesercenees 264 CRIME, A CAUSE FOR DISFRANCHISEMENT. Tri Ala bam Aver accu csavinaswcavan svamissnnbderbaadecsapassendsennedsseuseabsys 59 Arkansas svcscesss isdn avscevees: secacegestn: deecicenesss cose 60 California -83 Connecticut... 25 Florida.:.. 68 Georgia......... 52 W018 ss ssetsasscsvessas gorwcascevstiwvsewesces 24 TOWAse ies sagccdecce 26 Kansas wee §=386 Kentucky......00 sss yonaig aan eae saieaioac Lawaseep bonse eats san , 82 WLOUIST AND as up cede os cca ceresajedsleo gucssieenscien,Gekeeseaa ti ame 56 Maryland sccceess scence scenes: atacacaeerivaeaviincsnesetaceeen’s 38 Minnesota 47 Mississippi..... 58 Missouri........ 46 INiebrask ais cscecvsviscaas dsiavaceqnguecedaveledones vedcie det saveesienieess eave 64 Ney ad aicsssecsvccnayecnsciasecevenuueniauvarateonsaniessvsasonsaneeeseees Virginia... 43 West Virginia WasCOn Sing, stores seicecersacwoatadastiansemadaee aiaizenseai deueedeianaeee 32 INDEX. 299 CRIMES — AGAINST THE ELECTIVE FRANCHISE— provisions of United States statutes...........ccecsesesesssseee 282-291 hindering or obstructing voters by any unlawful means, (Sec. 5506) iceivenduevesavsssvveshsasaase seen eu anestexexssecsiuuemsooensuuraes yeas 282 hindering voters by bribery or intimidation (Sec. 5507)....... 282 conspiring to injure or intimidate (Sec. 5508).......ccessccereenee 282 depriving citizens of rights under color of state law (Sec. 5010) svsesssnasesiieceseatneeuesvees onssdadsapnee sesdacesosaseciorvineesses 283 personating, or using threats, bribery, etc., (Sec. 5511)......... 283 receiving illegal votes or counseling illegal voting (Sec. 5511) 284 fraudulent registering, or making false announcement of, (Sees. S512, 5513). sisedensveciveds wsccasesssessicasssevasexsanwaevens 284 what prima facie evidence of illegal voting (Sec. 5514)..... ... 286 neglect or malfeasance of election officers—penalty for (Secs. BOIS, DONT) cevssaviee ox saseaes sneseresdassensaseus ane aegaaiieeresnensd 286-7 hindering officer in the performance of duty (Sec. 5516)....... 286 conspiring to prevent person holding office, or to injure him for the performance of duty (Sec. 5518).....csssseseseeseee oe >. 287 conspiring to deprive any person of equal protection of law or to influence unlawfully any voter (Secs. 5519, 5520)... 287-8 neglect of supervisor or deputy marshal to perform duty (Sec. 5521).....sscceeeee ices tu euhies Shoda aeiasabraisecvacsdneabaciesses '288 unlawfully hindering or interfering with: supervisor, mar- shal or deputy marshal (Sec, 5522)........cccesessseeeseseeeeee 288-9 refusing to testify or giving false testimony (Sec. 5523)........ bringing troops to an election (Sec. 5528).........::::esereeereeee threats or intimidation by officer of army or navy (Secs. BoB Apacs toa cc eum eeneheecradan sane caas 290 disqualification from holding office added to other penalties (Sec. 5532). ..cceeeeeceees susbssieasucesc Suse sbdeasusasnereeccntiauasacens 290 DAY OF ELECTION— cannot be changed without anthority. los advegecwenaties baveuveateuase 124 DECLARATION OF INTENTION to become citizen—what and how made...........++. 198, 201, 205 DELAWARE— 800 INDEX. Page. DELEGATES TO CONGRESS, aE territorial—how elected (Secs, 1862, 1863).....ccersccessseereeeee 263 DEPUTY MARSHALS AT ELECTIONS— appointment and duties Of........ess0 sueveeeewotensassencevars 278-280 to be appointed by United States marshal (Sec. 2021)......... 278 shall assist supervisors, etc., (Secs. 2021, 2022).........c.cerseevee 278 may make arrests, for what, (Sec. 2022-2024)........ ...ssssee 278-9 to make report of complaints, etc., (Sec. 2027).......cessssseeeeee 280 DIRECTORY STATUTES— rule as to non-Observance Of.......ssescssccsceesseseeeeeseeeesveeeeees . 136 DISCRIMINATION forbidden on account of race, color or condition..............0 2,5 may be made for other causeS.,........-2-eeceseeeseeeeeee 6 in Rhode Island on account of nativity 6 DISFRANCHISEMENT— causes for. (See Bribery and Crime.) DOMICILE— HOW ACQUIFED .....01.c6eccceaetessdsavencsdonsnedeonecedasceedddacaneasensee 75 actual residence with intention to remain necessary.... 75 means the same as legal residence..........seee reece 75 of origin and of choice...........ccsceeecserseseseeetees 76 every Man Mist have.civis isccccvsesesvissanssewesssssarewnsscavsecess 76 of origin, the place Of Dirth...........ccssccesessesseesesseceeereeeseens 76 of choice the creation of the party... we 76 DOW aCQUired 5 5 fos decide ees sie secepsveureusaseaceseus cevecsies 17 of origin not lost until a new one gained.... .......... 77, 82, 86, 89 reverts if domicile of choice abandoned without gaining another ......cescsesseccsessssesseseeesersepesensenns 77 not so with suffrage residence until after lapse of time.......... 81 how lost and new one acquired... .cceccoesesceeceseeeseeeeeceeees 78-9 there must be removal with intention to abandon and remain at the place of removal...... ...... 79, 94-5 time always necessary to acquire suffrage residence.........1066 79 not to acquire domicile..........csseeseersossssecrsceeaes as 79 not changed by absence with intent to return..... we 19 presumption from long continued residence..... . 80 may be in one state and residence in another..............secenee . 83 of parent that of the childi........ccceccssscseessoneeeceeeee venenceee of child cannot be changed by guardian... minor cannot change.....ccccseccesesccceeeneees not lost by death during absence traveling 2 Oba Sali an, WHEL: csc aseseves ok. tshaauereedsoeeenvernumiundeseaieweness INDEX. 301 Page. ELECTION CONTESTS......ccccccccssecsscsesceessceceeeesseeeassescaneee 999-241 legislative bodies judges of the election and qualifications of theirown members...isseoveswccisucsecevessevecsivanSecaseece seovosias 229 other bodies and officials subject to the courts.........csssssecee 229 quo warranto and statutory procedures........scccecsssssssceseeees 230 CERTIFICATE OF ELECTION prima facie evidence of the right of holder.................. 230-235 what it is evidence Of......cccsscssesecssecssee sarees caseeesessensesnes 231 if officer refuse to issue, secondary evidence admissible......... 231 form of immaterial.......... cscsccssecceessssceecssseecseceeneesessseees 232 prima facie case may be destroyed by contradictory recital AMNCOP IH CALL 2 cosenis sap neta ver tesondeceeta tossed eeetgee se encesyeees 233-4 THE CONTEST OPENS THE WHOLE QUESTION. ..cccccsssscceeeeecees 236--7 omissions may be supplied and errors corrected...........sceeeee 2387 the object to give effect to the legally expressed wiil of the TNA] OLILY:- ane csa rece asdsieca cts das cagicadawavergadougeansasen gasuvarsee 237-239 voters may be questioned wbeapancdGandaccieuaeete 237-8 disposition of illegal votes.......... gatasveecenssastinsnataawsteadiaweats 238 when ballots are the best evidence........ Giced aeuseetaceeeiaa Teas aN 239 notice of contest must be QiVEN........secccssesssessersceseceeseeaeeee 239 quo warranto the proper proceeding, unless statute provides Otherwise sisisssncescecsacssareanesiscessieee cessiecsnadess teasensewesmanestcs 240 mandamus will not lie for possession of office .............+. eseee 240 ELECTION CONTRACTS, Invalidity Of.......ccssccecscsecesseceneceenssenneerecesesees teases 222-227 to keep building or room open for certain candidate......... 222-3 to use influence to secure appointment.......ccsssssceereseeeeeenee 223 tO APPOINE tO OFCE......cceccceeesenereeceecrsenrenecsereseeeceeen stenenens 223 for furnishing provisions or other articles to voters........ 223-226 ELECTION, NOTICE OF, TIT€ AS LO...cceeeeecescceccccecscenterseerecneeaeeecanres senses eenesssaaenees when want of, invalidates ELECTION OFFICERS, failure to qualify does not invalidate election..........:.sss+ee 126 oath of, not material how taken......ssssssesserressereessrerertseees 130 color of office necessary, (note) LIABILITY OF, for rejecting Votes......... dv evodwivinasddsosedbaresrercabancte rains. 209-214 PENALTY for refusing vote of citizen, (Secs. 2006, 2008-9) neglect or malfeasance, (Secs. 5515, 5517, 5521)... hindering in performance of duty, (Secs. 5516, 5522). °286--288--9 302 INDEX. Page. ELECTIONS, CONTESTED FEDERALL..........cccccsecssereeeeen 264-271 jurisdiction of courts in, (Secs. 563, 629) 264-5 / notice to be given, unless waived, (Secs. 105, 106, 108, 113, 124, 125, 126). 01 sccs teste decsedesta stun vase spidesassasecsaees 265-6-7, 269 testimony in, how and when taken, (Secs. 107-127)....... 266-269 subpeena, who may issue, (Secs. 110, 112)... ...cceceeeeeeeeeeeee 267 what it shall require, (Sec. 111) «267 how served, (Secs. 114, 115)............. see 268 witnesses, penalty for not appearing, (Sec. 116)..........sseseeee 268 how examined when outside the district, (Sec. 117). 268 to be examined on oath, (Sec. 120)..........s.seseseeee 269 testimony to be reduced to writing, (Sec, 122) how disposed of, (Secs. 123, 125, 126, 127)... 269 fees of witnesses and others, (Secs. 128, 129) expenses of contestants, (act March, 379) ELECTIONS, BY A MINORITY, WHER Q000 sessccssavssssevecieseessancicrrsssesveatewesases Se eee + 149 CONDUCT OF (See Conduct of Elections.) irregularities in, when they do not invalidate.............. 123-187 day of, cannot be changed without authority.............-.ssse08 124 delay in opening polls, when material and when not............ 124 place of holding, when may be changed.............ccceeesseceeeees 124 officers of, effect of failure to perform statutory directions, 125-132 adjourning and removing polls, rule as t0...........cseseeceeeeeees 133 statutory provisions regulating, difference between directory ANd “MaANdatOry ssccsevesscsvewenwe.cideeceieheeasecacecoosdsdacnasesiavs 136 MAJORITY VOTE IN, Tule AS tO......sccceseeecasssoees Went geenensonescaecesccnmasscasaseneece 147-149 PLURALITY SUFFICIENT, ‘ unless majority specially required............sssseessceeeeececeucenene 149 ELECTIONS, RE DERA Dis syccsciseseads savaccewacoeeasaeoss Weesdeeveeesy 249-292 constitutional provisions, general regulating..........0..000+8 249-50 president and vice president 250-257 senators of the United States 257-259 representatives .......c..cesseceeeee ia nsvae is danlewaabencustn caumedys 260-263 territorial delegates........ gia ch Signs Shueaeicawes Piethicseccastuscorenees 263 contested federal elections............0.. weve 264-271 revised statutes regulating..........ccsccssssecesscessscsseres oe 271-291 INDEX. 303 ELECTIVE FRANCHISE, Page. United States statutory provisions concerning.............. 271--281 CRIMES AGAINST, (See Crimes.) provisions for punishment Of.........ccssssessscecesver screenees 281--291 ELECTORS OF PRESIDENT AND VICE PRESIDENT.... 250-257 how appointed, (constitutional provisions)..........ss000-seseeeeee 250 no person holding a United States office eligible, (constitu- tional, provision) scisicsssecsseas seovtsaecsoavesessdersaceneesnaev arco meeting and voting by, (Secs. 131, 135)...........:..ceseseseeeee when they must give their vote, (Sec. 149)........scccesssseseeee number of in each state, (Sec. 132)........cccceecsseseseeeee ceeeeeeee vacancies in, how filled, (Sec. 133) proceedings of electors prescribed, (Secs. 137-140)..........+ 253-4 appointment of, to fill vacancies, (Secs. 148-150)..........04. 255-6 messengers and duties of, (Secs. 140-145)..........0.cccseseeees 254-5 EVIDENCE, IN CONTESTED ELECTIONS, TU]E AB tO..ccsccsecasnssccsseerscencenersesssseasaeseceees cnssea tones 230--239 certificate prima facie evidence of holder’s title............ 230--235 may go behind the returns and inquire into all the circum- SLADTICES.... ec cee secceccneecececevcnecscesceeceseersenereecteees teeter scenes 237 when ballots are the best evidence.........cc.ssccsseeeseeeeetreseees 239 admissible to explain errors and oMisSiONS.........:.00 sseeeeeee 237 voters may be asked for whom they voted........+-ssscsseseee 237--8 IN CONTESTED FEDERAL ELECTIONS. (See Testimony.) EXPATRIATION— difference between and change of domicile..............sssseeeeeee 108 EXPENSES in contested federal election cases, (Act of March 3, 1879)..... 271 EXTRINSIC EVIDENCE— , when admissible to explain ballot..........::cccsececnteereesenaneees 137 FAMILY RESIDENCE not always legal residence of the husband.........sssssceesesreseee 93 FEDERAL OFFICERS— election of: (See Elections, Federal, President and Vice Pres- ident, Senators, Representatives, Territorial Delegates, Electors.) 804 InDEX. Page. FEDERAL SERVICE— residence Of PeYSONS iN.....sceessseserenens peenecnen anseceseneseeeenens 95 may acquire at place of station, if they have the intention... 96 persons absent in the military, legislature may allow them UO VOLE isanccedicesosessetencepsacisdaesveere sve tessconerinersersee ee 114, 115 FEES in contested federal election cases (Secs, 128, 129).........:e100 270 FIFTEENTH AMENDMENT UNITED STATES CONSTITU- TION seis ssss satis ncrevs civ ceacavenvennicevnesea slaves seats ties tense te berareseiees 250 FLORIDA— suffrage, article of constitution Of.........cscseesssessevseneeetsenens 67 FORFEITURE OF SUFFRAGE— HOW CONGTESS MAY IMPOSE.. rvescenscceeseseccesseserecserssecssensneves 8 FOURTEENTH AMENDMENT UNITED STATES CONSTI- EL TEDL GIN ai cauciciosoies se voatoatanckeallamexegoussae denanosbaasosasengaddusasseaceetess 249 FRAUDULENT REGISTERING— penalty for, (Secs. 5512, 5513.).....cccesesssecsnsnseeeracensensevees 284 we GEORGIA— f suffrage article of constitution Of........cc::esccsscoecceeesesseeeenses 50 GOVERNOR'S OFFICE— quo warranto will lie to try title of occupant............:0. eee 159 HINDERING OR OBSTRUCTING VOTERS— penalty for. (Secs. 5506, 5507.)......ssccccsssscccceesseseecerssseee 282 HOUSE OF REPRESENTATIVES— article of constitution Creating......csseecccssessesesees sesseseesceeces 260 ILLEGAL VOTES— when the reception or rejection of invalidates election.........- 127 how disposed of in election contests.........0..ssseceseccseceseee 238-9 receiving or counseling, penalty for (Sec. 5511).......s0000002 284 ILLINOIS, suffrage article of constitution of.........0.---000 sAibioaeiessnsmlenoas 24 INDEX. 805 INDIANA, ae suffrage article of constitution Of.......s.ussssessssseesecesees weatees 21 INELIGIBLE, persons who are when voted for may hold office if ineligibility removed before term of office beginS..........+.sssssceseere « 94,173 INELIGIBLE CANDIDATES....... aMandacisiseedessoveestviesteiees ters 163-174 votes cast for, effect Of.........s0000 aaicetaatans 163, 166-7, note 168-9 next eligible candidate not generally elected.......... 163, 166-173 constructive notice of ineligibility not sufficient............ss0008 166. presumptive acquiescence of majority, when inferred............ 167 when notice of ineligibility will be presumed.......... 166-168, 173 the contrary doctrine in Indiana.............2ccsseeeeees 163, 164, 165 may take office if elected and ineligibility removed before term begins..........scscceosesscccnocssseceeenesnsessssssecesnaneoee 173 INFIRMARIES— inmates of, when they may acquire residence and vote......... 110 INITIALS OF CANDIDATES, effect of omitting or mistake in........ss-..-s200 ssvcecsestteyes 139, 141 WNMATES OF ASYLUMS in United States territory, not residents or voters of the states 96 infirmaries, when they may acquire residence and vote......... 110 INTENTION, governs in the choice of domicile and residence. 75, 89, 90-1, 94-5 presumption from long-continued residence........s.0-sseseeeeees 80 and. fact of removal must concur. 83 change of and return, effect Of..........---sssseeeereeees 88 when coupled with a contingency, rule a8 t0......ssssseesresreeee 94 OF VOTER, should prevail in counting doubtful ballots...........+s0« 137-142 DECLARATION OF Dy alien .....cessessccseeseceereaeeeeenerscessenstenesrerseeeans 198, 201, 205 INTIMIDATION OF VOTERS— penalties for, (Secs. 5506, 5507, 5508).....s.scesesereerrecsssserss 282 IOWA— suffrage article of constitution Of.........+0ssessseeeneerretaenrerers 26 IRREGULARITIES IN ELECTIONS. (See Conduct of Elections.) in taking registry, effect Of......scecsesessstssterseentretee seseneee « 125 objection must be material and go to the merits . 132 canvassers cannot take notice Of. ....csccerserssrsseserserese seen 156 20 306 INDEX. Page. JUNIOR— omission of from ballot, effect Of..........sccescsesseseseees seeaasens 129 JURISDICTION OF UNITED STATES COURTS in federal election cases.........sssscmssecssseccsssatserscseceseneeeees 264 KANSAS, suffrage article of constitution Of...........01seccscessseeesssesseres . 35 KENTUCKY, suffrage article of constitution of........ Suidbebsessaisessrsashedveusve 52 LAWFUL BALLOTS— WAL ATS asco woncalnvaciccipalseasndaciaeivs siiiie seve 143-146 must not contain devices destroying S€CreCY.......cscessesesseeeee 145 LEGAL RESIDENCE— : the suffrage residence spoken of in the state constitutions...... 75 OW: ACQUITC vo 5 oce sda cpicionertcdcaescescoessueseeasevncuncucrstescsousvees 75 the intention of the party ZOVEINS........cssesssssecsssecceeseeerenes 75 all the facts attending actual residence not necessary............ 75 difference between, and actual residence...........sessssesserssseee 76 LEGISLATIVE BODIES the judges of the elections and qualifications of their own MODMID ELS, 5060s osessscasiesencsusi vantnonsvecnede dvs eb eu sie able sted woanrvnee sce 229 LIABILITY OF ELECTION OFFICERG...........ccccceeccsseesee 209--214 LIQUORS— contract for furnishing to voters Void............s0seceeneeees 220, 225 at primary meetings....... se sea spalbesib oa ccisaes adgnedssescivdens cavers 220 during political canvass........ccccccccssscccesscsescccesecssessercncers 225 LOSS OF BALLOTS— OLE CY Of evveicaxsvehuessdaeavizc tuodd un escnacuseouuaneaustAled haueus vebaead 157 LOUISIANA— suffrage article of constitution of.......... sBVOeE a vases ceassteecouoa’- “OF MAJORITY VOTE— elections by—how construed.......ccccssscceesees sessessecaceecs 147--149 ( InDEx. 307 MANDAMUS a will not lie to try title to Office............ccccssscescessseseessseesees 240 in what cases it may be used MANDATORY STATUTES— rule as to Observance Of.......sccccsessecsceesesscessessesesecceaaseesees 136 MAINE— ‘ suffrage article of constitution Of..........:scccssssecesees Meusaueustes 12 MARINES not included in the phrase * Armies of the United States.’— (MOtE.) sesseisnmssieneden'svchus ces eadeadseessbewersaneerecnmoneiaeeebserss 202 MARYLAND— suffrage article of constitution Of...........ssssseecsseeecceceeeeeseess 38 MASSACHUSETTS— suffrage article of constitution Of............cc-sssseeeccsecersseesees 15 MICHIGAN— suffrage article of constitution Of.........s0ssssereseccccsesenconsoaees 22 MINNESOTA— suffrage article of constitution Of............sscsesescssssesnsceesenees 46 MINOR cannot change his domicile...........csssscesceseeseeeeeeees sebkecwsuss 121 MINOR CHILD OF ALIEN may acquire citizenship through declaration of father’s inten- UMODisssidsecswrarnetes vores steieedvbsudeaddaceaanmasedownderdupedies 194-5 MINORITY— elections by, when g00d.........-scceeseeesessereeceevenes atespamenvantss 149 MINORITY CANDIDATES— when majority vote for ineligible person, rule as to....... 163-174 not elected if people vote for ineligible candidate through mis- take or without notice. ........scsecscececcsseceneserensceseceacaees 166-7 when presumptive acquiescence of majority inferred............ 167 MISSISSIPPI— suffrage article of constitution Of...........ssscresssssscoecssereees 56 MISSOURI— suffrage article of constitution Of.........ssssscccsscesceeeee sonteees 45 MISTAKE in designation of officer voted for, effect Of.....2%-..s+sseeee .. 141 NAME OF CANDIDATE— abbreviation of, how ballot counted.........-...sse+0 - 188--139, 141 308 INDEX, Page. NATIVE-BORN PERSONS citizens of the United States and of state in which they re- f SLO Cxcccvaiir sce weeseneceaus dvsidssfesWbsessensenesdaa:sevevean suds counsesveess 2 NATURALIZATION not essential to right of suffrage does not confer the right to VOte..........c:scesesnsssceresereesesonens person entitled to who has served five years in an American vessel continuously. HOW OBTAINED isi escccsveaccgarteenrcsnevdentadecsectecsess declarations to be made declaration of intention not necessary by soldier or mi- THOM sc susaec ese sissoade sxeaenee gueeaas siaiadanteonaiedivedd pisawacieeeeaces 201--206 declaration need not be made before same court that admits.. 205 residence for five years and proof of good behavior...... 199, 200 RECORD OF can only be impeached for fraud.....ccssssecceesssesesseseeseveenee: 202 or for want of jurisdiction...........ccccscsseseeseecceceeneseccentenens '202 NATURALIZED CITIZEN cannot vote without state qualification..............:.ceceseeeeeeeee 3 NEBRASKA— suffrage article of constitution Of........... csesescece cesses ceneeeees 64 NEW HAMPSHIRE— suffrage article of constitution Of...........ccesecccuses vevseseessaeees 13 NEW JERSEY— suffrage article of constitution Of.........ccccccccsssseseecceseecunees 29 NEW YORK— suffrage article of constitution Of............-ccciseseseeceer eee saees 27 NEVADA— suffrage article of constitution Of......s..cccceesccccecseecee cencesces 62 NORTH CAROLINA— suffrage article of constitution Of......scscccccccssescessssscs secseeees 44 NOTICE OF ELECTION— when immaterial, .......scccccccscecccsesseseeeeee Shes 127, 128 when want of invalidates.. 151-155 MAY’ De iCOMSHUCLLVE ys 5. dewoxasaaearadcsaren start eee sdmeredvesgedeeescd 154 IN CONTESTED FEDERAL ELECTIONS. (Secs. 105, 106, 108, 113, 124, 125, 126).....cccceeees 265-7, 269 IN ELECTION CONTESTS, Must be given ..casss.eckevs vies cenigeyias dudwacarsuvvavesencseovaedaseless 239 OF INELIGIBILITY OF CANDIDATE, when it will be presumed........ Siedecsuwavensyitacers se» 166-168, 173 INDEX. 309 OATH OF ELECTION OFFICERS— ae not material how taken .............cessccseceen cesses cusecees 130-31, 158 OFFICERS— OF ARMY AND NAVY, threats or intimidation of voters by, (Secs. 5529, 5530, 5531).. 290 OF ELECTION, failure of to be sworn does not invalidate election......... 126, 128 nor the disqualification of...... dS ie latce see nauniedutaus oateatas ences 126, 129 oath of, not material how taken..............ccccsesceseeusseroeees 1380-1 there must be some color of election or appointment............ 130 liability of for rejecting Votes.......00.....:ssseseseresees disaves 209-214 OHIO— suffrage article of constitution Of...........::cssssssesesenceeceeeeeeee 30 OREGON— suffrage article of constitution Of...........::sscessscseseeccees avegeey 33 PAIRING OFF OF VOTERS— Of no legal: effect, Title . Copy The law of suffrage and elections. Bee ve nae LONI egy ra ay Norio habe aia Mig tte Ratan atic rat seca sh Abutlennlaat its Croat i ie ite phar hadi it oe Heer teintate ne eed he i iA ‘i nari bent a bate sh oaenan cen RI a bi uly Ps y i. i Yi cima eta 1 i 4 eben bec bat Net set eure ee Laat Bite cea it phe ra iM yy i Se eo a 1 ete ects Are Fatah eat , ! Pe ih pei teetiy AE Fy as pecaie ein y eatin te ertshe Sallie i Shag nee ss sires ie} sa 3 Pn Ji eee Tie ie h, ‘oh ig Bi oe ie