58 Kan. 594 | Kan. | 1897
This is an original proceeding in quo warranto, to determine the right of the defendant as against the plaintiff to hold the office of county clerk of Ford County. The parties were opposing candidates for the office named at the general election in 3895. The defendant received a majority of the votes cast, and thereafter qualified and entered upon the duties of the position. The facts have been agreed upon, and from them it appears that, outside of the ballots cast by certain inmates of the State Soldiers’ Home located in the county, the plaintiff received a majority of the votes. The right of the inmates of the Home to participate in the election is the sole question for decision.
The legislation respecting the establishment and maintenance of this Home and the government of its inmates began in 1889. In that year, the Legislature, by concurrent resolution, requested our Senators and Representatives in Congress to endeavor to secure the donation to the State of the Fort Dodge Military Reser
“All honorably discharged soldiers, sailors and marines who served in the army and navy of the United States during the war of the rebellion, and who may be disabled by disease, wounds or old age, or otherwise disabled, and who have no adequate means of support, and who by reason of such wounds, old age or disability are incapacitated from earning their living and who would otherwise be dependent upon public or private charity, together with such members of their families as may be dependent upon them for support, shall be entitled to admission to such institution, subject to the rules and regulations that may be established by the board of managers for the government thereof.” Laws 1889, ch.235, Gen. Stat. 1889, ¶" 6235.
March 2,1889, Congress authorized the desired conveyance to be made, upon the condition :
“ That said State . . . shall within three years establish and provide for the maintenance thereon a home in which provision shall be made for the care and maintenance of officers, soldiers, sailors, and marines, who have served in the army, navy, or marine corps of the United States, their dependent parents, widows, or orphans, and under such rules and regulations as said State may provide.” U. S. Statutes at Large, Yol. 25, ch. 420, p. 1012.
In 1893, an act was passed specifying some additional details of management of the Home, and providing, among other things, that applicants for
The State legislation thus noted, and the rules of the board of management authorized thereby, provide for the residence in separate cottages of such of the inmates and their families as can be accommodated in that way, and also provide for the cultivation by the inmates of the lands forming part of the Home, for the maintenance of the institution in that way, so far as it can be. Family and not communal life, in the case of such of the veterans as have families, is the rule of the institution, so far as the accommodations will allow; while as to unmarried men, barracks and mess privileges, somewhat after the manner of army life, are provided. A large majority of the inmates who voted were married men residing with their families upon the Home lands; and it is agreed in the statement of facts:
“ That all said persons, both married and single, at the time they moved from various counties in Kansas, where they resided previous to moving to the Home, abandoned their old homes with the intention of making their permanent abiding place and their homes in the State Soldiers’ Home at Fort Dodge, Kan. ; that they actually took up their residence in the houses .■and quarters assigned them in said Home with the intention upon their part of making the same their homes ; and during the time they resided therein they intended and claimed said houses and quarters in said State Soldiers’ Home to be their homes ; and while they resided in said houses they had no other homes ;*597 and that they were their fixed habitations, to which, when they were absent, they intended to and did return.”
The act of 1889 authorized the board of management to prepare and promulgate a system of government for the Home, embracing such regulations as might be necessary for the preservation of order, the enforcement of discipline, and the security of the health of the inmates. Conformity to these rules is of course required, and, as we assume, under the compulsion of discharge, although such is not so declared in the statute, nor does the agreed statement of facts so recite ; but, it may be taken for granted that, under the rules of the institution, permanency of stay is conditioned upon obedience to the reasonable regulations prescribed.
The constitutional provisions bearing upon the question for decision are as follows :
“ Every white male person of twenty-one years and upwards . . . who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote, at least thirty days next preceding such election, shall be deemed a qualified voter.” Const., Art. 5, § 1.
“For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this State, or the United States, or of the high seas, nor while a student of any seminary of learning, nor while kept at any almshouse or other asylum at public expense, nor while confined in any public prison.” Const., Art. 5, § 3.
Upon the part of the plaintiff, it is insisted that the section last quoted precludes an inmate of the Soldiers’ Home from acquiring at such Home the residence required by the section first quoted. Upon the part of the defendant, it is insisted that the section
The first matter of importance to determine is the character of the place in question. Is it an “ asylum,”
“The Soldiers’ Home is purely eleemosynary in character. To hold otherwise would be contrary to sound legal principle and good sense. The title to the act shows it. It is not the character of the beneficiaries, nor the cause of their inability to earn a living, nor the reason for granting the bounty, which determines whether such an institution is charitable in its character. An institution established and maintained for the support of indigent persons who become blind or deaf in the service of their country or State is as much eleemosynary as one established for the support of those who were born blind or deaf, or who have become so from other causes. All institutions in this State, established and maintained at the public expense, for the care, education, and support of the unfortunate, belong to this class of institutions, and are included in the term ‘ asylum, ’ used in the above clause of the Constitution. It is immaterial whether they are called schools, retreats, homes, or asylums. It is equally immaterial what the feeling is which prompts their erection and maintenance. An ‘ asylum ’ is defined by Webster to be ‘ an institution for the protection or relief of the unfortunate.’ Such is its meaning as used in the Constitution. It follows that one’s entry and residence in such an institution partake of the same character as the institution itself, and are likewise eleemosynary in character.” Wolcott v. Holcomb, 97 Mich. 361—363, 364.
The proposition next to be considered herein was also involved in the case in Michigan. Upon it the members of the court were divided in opinion, but no dissent was expressed from the view taken of the character of the institution as an asylum within the meaning of the Constitution. In this view of the character of such institutions we also concur. We
The inquiry, then, occurs : Can such inmates acquire at this asylum a residence for voting purposes? This inquiry was also made in the case of Wolcott v. Holcomb, supra, and was answered in the negative by a majority of the Supreme Court of Michigan, under constitutional provisions identical in language with ours. These provisions have already been quoted. For the purpose of their application to the precise case in hand, such of their terms as relate to collateral but not necessarily connected matter may be eliminated, so they may be read as follows :
“Every male person of twenty-one years and upwards who shall have resided in Kansas six months, and in the township or ward in which he offers to vote, thirty days, next preceding any election, shall be deemed a qualified voter; but, for the purpose of voting, no person shall be deemed to have gained or lost a residence while kept at any almshouse or other asylum at public expense.”
Thus read, there appears to us slight ground upon which to base a claim of competency to vote in the inmates of the Soldiers' Home. It will be observed that the provision quoted does not disfranchise these inmates. No more shall they be deemed to have lost their former residence than they shall be deemed to
It is no sufficient answer, upon the mere question of interpretation, to say that many to whom the right of voting is thus saved live at distances too remote and suffer other disadvantages too great to make its enjoyment practicable. The burden is no greater upon an inmate of the Home than upon many others whose lives are largely spent at distances far from the place which the law assigns for the exercise of the voting privilege, and upon whom travel thereto entails expense which can be illy borne.
The language of the Constitution is: “ For the purpose of voting, no person shall be deemed to have gained ... a residence while kept at any asylum at public expense.” The Standard Dictionary gives the word 1 ‘ deem ’ ’ the following definitions : “ To hold in belief, estimation, or opinion.”. “To judge; adjudge; decide; sentence; condemn.” “To have or be of an opinion.” Its synonyms are “esteem” and “suppose.” The defendant is constrained by the logic of his contention to rest his case upon the theory that the Constitution simply declares a rule of evidence — simply raises a presumption of disqualification; but none of the shades or variations of meaning possessed by the word “deemed” admit the raising of such presumption upon the language of the Constitution. For voting purposes, no person while kept at an asylum at public expense shall be
The decisions upon the precise question are few in number. But three have been called to our attention. Those of Wolcott v. Holcomb, supra, and Silvey v. Lindsay et al., 107 N. Y. 55, are to the same effect as the one we make. That of Stewart v. Kyser, 105 Cal. 459, is in opposition. It also appears, by records of the United States District Court for this district which have been called to our attention, that, in an unreported case, entitled United States v. Rowdebush, being an indictment for illegally voting at an election for .Representatives in Congress, a decision similar to that of the Supreme Court of California was made upon an agreed statement of facts ; but we are constrained by what we regard as the true interpretation of the Constitution, derived out of the settled and authoritative meaning of the words used, to follow the New York and Michigan decisions, and to hold that, notwithstanding the abandonment by the veterans in question of their former places of abode and their settlement at the Soldiers' Home with the fixed intention of remaining there, they cannot acquire a residence at such Home for voting purposes.