Sharp v. McIntire

23 Colo. 99 | Colo. | 1896

Mr. Justice Goddard

delivered the opinion of the court.

One of the essential qualifications of a voter prescribed by our constitution and statute is that he shall reside in the state six months immediately preceding the election at which he offers to vote, in the county ninety days and in the ward or precinct ten days. Sec. 1, art. 7, of the Const.; sec. 1571, Mills’ Ann. Stats.

The merits of this controversy, therefore, depend upon the construction to be given to the residence qualification thus prescribed. . It is contended by counsel for contestee that the word “ reside,” as therein used, signifies to “ dwell,” “ abide ” or “ live ” in the state; and that when a person has actually lived in the state the specified time he meets this requirement. With this construction of the word we cannot agree. We think the residence therein contemplated is synonomous with “home” or “domicile,” and means an actual settlement within the state, and its adoption as a fixed and permanent habitation; and requires not only a personal presence for the requisite time, but a concurrence therewith of an intention to make the place of inhabitancy the true home; and that one who has made a home or domicile in some other state or territory where his family reside, cannot, by a sojourn here on business or pleasure, however long, without abandoning such former domicile, acquire a residence in the constitutional and statutory sense. Such is the meaning and signification given to the word by the courts of other states when used for a like purpose in their constitutions. Fry's Election Case, 71 Pa. St. 302; 5 Metcalf, 587; French v. Lighty, 9 Ind. 475; State v. Aldrich, 14 R. I. 171.

In 5th Metcalf, supra, in answer to a question propounded by the house of representatives, the supreme court of Massachusetts, construing a similar provision of their constitution, held that the words “ shall have resided ” meant the same as “ shall have had his domicile, or home,” and that a student had no right to vote at the place where he resided for purposes of education, though he had been there more than a year, unless his domicile was also there. In Fry's Election Case, supra, Judge Agnew, speaking for the court, said:

“No one doubts that one domiciled in another state, but resident here for a special purpose of business or pleasure, is ineligible to election. * * * It is equally clear that the electors of the state are those who have their homes within it, and not elsewhere. Their domicile is there, and their home is the place where they permanently reside, and to which they intend to return when away from it. It is also clear that one domiciled in another state cannot be an elector here, though he be resident here for some' temporary purpose, or on some special business, and though his stay may be prolonged upward of a year. Therefore, when the constitution declares 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 a temporary sojourn.”

We think there can be no doubt that in adopting this constitutional provision the convention intended to adopt it with the construction that had theretofore been given it. And we think the court below erred in ignoring, as it evidently did, this necessary qualification of some of the voters challenged. It is further urged that the court also erred in excluding the alleged declarations of the parties. While it is held in some of the authorities that the unsworn declarations of a voter are inadmissible to impeach his qualification to vote, when made prior or subsequent to the time of voting, upon the ground that they are hearsay, and among them the case of People v. Commissioners, 7 Colo. 190, we know of no case that holds that such declarations are inadmissible when made concurrently with the act of voting, and constitute a part of the res gestee. Abundant authority is found that upholds the admissibility of declarations made under such circumstances. Among them, see City of Beardstown v. City of Virginia, 81 Ill. 541; Rucks v. Renfrow, 54 Ark. 409; Patton v. Coates, 41 Ark. 111.

In Gilleland v. Schuyler, 9 Kan. 569, wherein it was held that statements of third parties as to the number of times and the names under which they voted were hearsay, and incompetent, and were excluded because relating to past transactions, yet the court say:

“ These declarations were not made at the polls by persons conducting the election, and so as to make part of the res gestee; nor do they accompany a principle fact which they serve to qualify or explain.”

We think, therefore, that the declarations sought to be introduced in evidence in this case, having been made at the immediate time of voting, in the presence of the judges of election, were admissible, if properly proven; and the court erred in excluding them on the ground solely that they were hearsay. It appears that the conversation had with some of the parties was through an interpreter, and their answers were in Spanish. The witness, therefore, was competent to testify only to such declarations as he understood without the aid of an interpreter.

For the foregoing reasons, the judgment of the county court is reversed, and the cause remanded.

Reversed.