| Mich. | Nov 10, 1893
Lead Opinion
The principal question presented in this case is whether the inmates of the Soldiers’ Home, situated in the township of Grand Bapids, in Kent county, are entitled to vote in that township. Section 5, art. 7, of the Constitution, reads as follows:
“No elector shall be deemed to hare gained or lost a residence by reason of his being employed in the service of the United States, or of this State; * * * 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.”
The Soldiers’ Home was erected under Act No. 1.52, Laws of 1885 (3 How. Stat. § 1984« et seq.), entitled “An act to authorize the establishment of a home for disabled soldiers, sailors, and marines in the State of Michigan.” By the act, $100,000 was appropriated from the genera; fund in the State treasury for its erection and equipment, and $50,000 for the purpose of maintaining it for the years 1885 and 1886. It has since been supported by 'annual appropriations made by the Legislature. Section 11 of the act, as amended by Act No. 44, Laws of 1891, provides the conditions for admission to the home, which are as follows: All applicants must be honorably discharged soldiers, sailors, or marines, who served in the army or navy of the United States in the war of the rebellion or in the Mexican war; they must be disabled by disease, wounds, or otherwise; must have no adequate means of support; must be incapable of earning their living, and otherwise dependent upon public or private charity. The board of managers is, by the same section, empowered to adopt rules and regulations to govern the admission of applicants. Among the rules adopted by the board for such admissions is one
Uriah Carpenter, the inmate of the home whose right to vote is here in question, was at the timé of his application and admission, in 1887, a resident of the township of Woodstock, in Lenawee county. In his application he made affidavit that he was a resident of that township, and upon it is indorsed the certificate of the supervisor that he was then an “actual resident” thereof. His vote was challenged and rejected on the ground that he was not an elector in the township of Grand Kapids,
The Soldiers' Home is purely eleemosynary ih 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 became blind or deaf in the service of their
This provision of our Constitution was evidently copied from that of New York, for the two are nearly identical in language. The court of appeals of that state, in an opinion concurred in by the entire court, held that tire inmates of the soldiers home of that state were not entitled to vote in the municipality where the home was" located. Silvey v. Lindsay, 107 N.Y. 55" court="NY" date_filed="1887-10-04" href="https://app.midpage.ai/document/silvey-v--lindsay-3620432?utm_source=webapp" opinion_id="3620432">107 N. Y. 55. The facts in that case and in this are substantially identical. After stating the facts, the court say:
“These reasons satisfied the conscience of the plaintiff [the inmate], and enabled him to say he was a resident of Rath, but in reality they bring the case within the prohibition of the constitution. He could not gain a residence by being an inmate, which means nothing more than his presence in the home; and, excluding that, there is nothing in the case to show that a residence in Bath. had been acquired. It follows that he has not lost the right to vote in the place of his legal residence, — New York. * * * As to that city, he is to be regarded as temporarily absent, and his residence as a citizen still therein.
“ We have no doubt that the institution in question is within the purview of the constitutional provision. * * * It is an asylum supported at the public expense, and its members are within the mischief against which that provision is aimed, — the participation'of an unconcerned body of men in the control, through 'the ballot-box, of municipal affairs, in whose further conduct they'have no interest, and from the mismanagement of which by the officers their ballots might elect they sustain no injury."
This language is applicable to the present case, and we. quote it with approval.
But it is insisted that that case still leaves the question open to depend upon the intention of the elector, by reason of the following language:
“But the question in each case is still, as it was before the adoption of the constitution, one of domicile or resi*366 dence, to be decided upon all tbe circumstances of the case. The provision (art. 2, § 3) disqualifies no one; confers no right upon any one. It simply eliminates from those circumstances the fact of presence in the institution named or included within its terms. It settles the law as to the effect of such presence, and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere.”
Mr. Carpenter, as above stated, was a resident and elector in the township of Woodstock, which was then his domicile of citizenship, when he made his application and was admitted to the home. There was no indication in his application of any intention to change his residence for the purpose of voting, or for any other purpose than that for which the home was established. In his complaint against the election inspectors he states that he had always lived with his father prior to his death, in 1887; that he was unmarried; that by the death of his father the home was broken up; that since that time he had had no home with any relative or friend; and “that he always intended, and in fact made, the township of Grand Rapids, and that part of it in which said Soldiers’ Home is located, his home, subsequent to Ms entry therein.” His father was living at the time he'entered the home. If he entered as a resident of Woodstock, and that was then his actual residence, can he gain a new residence while kept in this asylum at public expense, except in violation of this plain provision of the above section? Would not this be losing one residence and gaining another while kept in an asylum at public expense? In the New York case the inmate had been in the home for six years, and swore that it was his intention at all times to make his residence in said institution so long as he should be permitted to do so. Is Mr. Carpenter’s statement in fact any stronger than this? Does he swear to any residence or domicile of citizenship aside from
We are of the opinion that the terms “by reason of” and “while” were understood by the framers of the Constitution to have a different meaning. In the former case the intention would very largely, if not entirely, govern the question of domicile, while in the latter it would not. It was clearly the intention of the former provision to give the citizen the right, if he chose, to carry his residence with him to the place where he was employed in the service of the United States or of the State, and in the latter case it seems equally clear that it was the intention not to give that right. What object otherwise could there have been in the use of these two terms?
While the results of the adoption of one construction of the fundamental law of the State are not conclusive nor of much force where the construction is otherwise clear, still they are important considerations in determining the intent and purpose of the law. If the construction contended for by the relator be correct, it follows that all the inmates of county alms-houses and of prisons and jails are electors, at their option, in the townships and cities where those institutions are located. In the township of Nankin, in Wayne county, where the alms-house of that county is located, there were, in the year 1891, 1,851 male inmates, more than twice the whole number of voters in the town
We are cited to the language of Mr. Justice Campbell in Warren v. Board of Registration, 72 Mich. 401. That language is conceded to be a dictum. It is not, therefore, binding in this case. It has often been said by this and other courts that the language of a decision must be construed with reference to and confined to the facts of that case. The sole question in that case was whether the lodging room or boarding place of the voter should govern. Applied to that question, the language was appropriate, and the reasoning conclusive.
No question of disfranchisement is involved. The inmates of the home are no more disfranchised than were the soldiers when absent from their domiciles and in the army. The people in that case amended their Constitution, providing that they might cast their votes when absent from home in the service of their country. So, in this case the people may amend their Constitution, either making these inmates electors in the township where the home is located, or providing for casting their ballots at the home, to he counted in the township from which they came.
Another question of no little importance is also involved. Are inspectors of election clothed by the law with judicial or only ministerial functions? Have they the right to-reject a ballot when the voter is registered, and tenders the oath prescribed by the statute? Mr. Carpenter was
“ Where, however, by the law under wliich the election is held, the inspectors are to receive the voter’s ballot if he takes the oath that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they'are not at liberty to refuse to administer the oath, or to refuse the vote after the oath has been taken. They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote.” Cooley, Const. Lim. 617.
For this reason it was the duty of the respondent to entertain the complaint, issue a warrant, and proceed to an examination.
The writ must issue.
Concurrence Opinion
I cannot concur in the proposition that article 7, § 5, of the Constitution of this State should be so construed as to deprive a citizen of his right to choose his
The opinion of the late Mr. Justice Campbell is in accord with this view, as appears from a dictum in the case of Warren v. Board of Registration, 72 Mich. 401, where he cites this section, after stating that—
*372 “Our own Constitution is full on this subject, wliere it lays down expressly, what would perhaps be implied, that certain continuous presences or absences shall have no effect on elective residence.” And he adds: “ These provisions do not prevent stick persons from becoming residents, if stick is Ikeir purpose, cmd if they are alie to choose.”
The case of Silvey v. Lindsay, 107 N. Y. 55, which is relied upon as authority by counsel for respondent, is reconcilable with this view, and does not appear to go to the extent of holding the doctrine contended for. In that case a vote was rejected because the voter did not show himself to be a resident of the township. His vote being challenged, he answered as follows:
“I answer that I reside in the town of Bath, for the reason that I was admitted an inmate of the New York soldiers’ and sailors’ home in this town, by the authorities thereof, in the year 1880, and have remained such inmate from that time to the present, with the intention at all times of making my residence in said institution so long as I shall be permitted to remain such inmate. At the time of my admission to said institution I was an honorably discharged soldier of the United States, and a resident and voter-of the city of New York. I therefore answer that I am a resident of the town of Bath. In becoming an inmate of said institution, I intended to change my residence from the city of New York to the fifth election district of said town of Bath.”
It will be observed that after stating the facts of his former residence and his admission to the soldiers’ home, and his intention of making his residence in said institution as long as he should be permitted, he argues: “I therefore answer that I am a resident-of the township of Bath.”- The opinion says:
“It is obvious that his narration of an intention to-change his residence to- Bath, and his assertion that he resided in Bath, can be accepted only as conclusions from the circumstances detailed in connection with them. They were his conclusions, and defendants, in view of his whole statement, were not bound by'them. They were bound by*373 the facts stated, and were required to say upon those facts whether the plaintiff was qualified in the necessary particular, and undoubtedly they were to determine the question at their peril. The constitution, in the section referred to {supra), specifies the qualifications necessary to the elective franchise, provides who shall have the right to vote, and one duly qualified cannot be deprived of that right by any inferior tribunal. But the constitution also provides (art. 2, § 3): ‘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 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;" and the decision of the inspectors of election was that, in their opinion, the intending voter was in Bath as a mere inmate of the institution, and for a temporary purpose, and not; as a resident of the voting district, or with intent to make the town a fixed or permanent place of residence, and so it would seem. His presence there -was eleemosynary in its character. He Avas there as a dependent, because he had no means of support or relatives to maintain him, and liable to be discharged Avhenever the board of trustees were satisfied that he was of sufficient ability or. means to support himself. (Rules and regulations of the home.) As to the home, he was a beneficiary, and nothing else. As to Bath, his residence Avas a beneficiaras residence, and no other. His relations were not AA'ith the village, but Avith the institution which was situated within its borders. His intention to remain was conditioned upon and limited to the duration of the charity which he enjoyed. His intention to remain in Bath depended upon his expectation to remain at the home. This gave no residence, for he was there only in the character of a beneficiary, for a temporary purpose. His only intention in going to Bath was to be an inmate of the home, and it was only as such inmate that his residency was to be continued. He was not there as a citizen changing his residence, but as an object of Avell-bestowed and deserving charity. He Avas, as is clear upon,his statement, present in Bath, and at the institution, because he was then ‘kept" (that is, supported) * * * ‘at public expense." ‘I reside in Bath," he says, ‘for the reason that I was admitted to the home as an inmate." He*374 continues there with the intention of making his residence in the institution so long, he says, ‘ as I shall be permitted, to remain an inmate.* • These reasons satisfied the conscience of the plaintiff, and enabled him to say he was a resident of Bath, but in reality they bring the case within the prohibition of the constitution. lie could not gain a residence by being an inmate, which means nothing more than his presence in the home; and, excluding that, there is nothing in the case to show that a residence in Bath had been acquired. It follows that he has not lost the right to vote in the place of his legal residence, — New York, — for the provision of the constitution in question also declares that he shall not lose his residence by reason of such ‘presence* in the ‘institution.* As to that city, he is to be regarded as temporarily absent, and his residence as a citizen still therein.
“We have no doubt that the institution in question is within the purview of the constitutional provision (art. 2, § 3) above referred to. It is an asylum supported at the public .expense, and its members are within the mischief against which that provision is aimed, — the participation of an unconcerned body of men in the control, through the ballot-box, of municipal affairs, in whose further conduct they have no interest, and from the mismanagement of which by the officers their ballots might elect they sustain no injury.’*
If this language should create the impression that the section of the constitution does more than to negative an implication of a change of domicile from the fact of residence in the institution, the next paragraph of the opinion settles the question, clearly showing that the court did not intend to hold that- inmates of a soldiers* home could not acquire a residence in the locality of the home, and, to my mind, clearly implying that, had the voter stated that he entered said home Avith the intention of abandoning his former domicile, and making a new one in the locality of the home, the decision Avould have been different; and hence, instead of supporting respondent’s contention, the case contains a plain dictum to the contrary. It is as follows:
*375 “ But the question in each case is still, as it was before the adoption of the constitution, one of domicile or residence, to be decided upon all the circumstances of the case. The provision (art. 2, § 3) disqualifies no one; confers no right upon any one. It simply eliminates from those circumstances the fact of presence in- the institution named or included within its terms. It settles the law as to the effect of such presence, and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere.
‘•"We think, therefore, the question submitted by the parties, viz., 'Did James Silvey gain a residence in the* town of Bath so as to entitle him to vote at said town meeting by reason of his presence as an inmate of said institution?' should have been answered in the negative, and it is so answered by this court.”
In .my opinion, the writ should issue as prayed.