CHAPTER XVII.

THE EXPRESSION OF THE POPULAR WILL.

ALTHOUGH by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty, but directly or indirectly complete control of the government is in their hands, and the three departments are responsible to and subject to be changed, directed, controlled, or abolished by them. But this control and direction must be exercised in the legitimate mode. The voice of the people can only be heard when expressed in the times and under the conditions which they themselves have prescribed and pointed out by the Constitution; and if any attempt should be made by any portion of the people, however large, to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and to be resisted and repressed by the officers of government.

The authority of the people is exercised through elections, by means of which they select and appoint the legislative, executive, and judicial officers, to whom shall be entrusted the powers of government. In some cases also they pass upon other questions specially submitted to them, and adopt or reject a measure according as a majority vote for or against it. It is obviously impossible that the people should consider, mature, and adopt their own laws; but when a law has been perfected, or when it is deemed desirable to take the expression of public sentiment upon any one question, the ordinary machinery of elections is adequate to the end, and the expression is easily and without confusion obtained by submitting the law for an affirmative or negative vote. In this manner are constitutions and amendments thereof adopted or rejected, and matters of local importance in many cases, like the location of a county seat, the contracting of a local debt, the erection of a public building, the acceptance of a municipal charter, and the like, are passed upon and determined by the people interested in the

question, under constitutional or statutory provisions which provide therefor.

The Right to Participate in Elections.

The conditions for the exercise of the elective franchise are established by every State for itself, and though there is a general uniformity of qualifications, there is also some diversity. Women, minors, and aliens are excluded in all the States from participation in the general elections; though in some the alien becomes qualified after a certain residence, if he has declared his intention to become a citizen; and in some elections also persons are excluded who lack a specified property qualification, or who do not pay taxes, or who have been convicted of infamous crimes. In some States idiots and lunatics are also expressly excluded, and it has been supposed that these unfortunate classes, by the common political law of England and of this country, were excluded with women, minors, and aliens from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision.1

Conditions necessary to its Exercise.

One of these is, that the party offering to vote must reside within the district which is to be affected by the exercise of the right. If a State officer is to be chosen, the voter must be a resident of the State; and if a county, city, or township officer, he must reside within such county, city, or township. This is the general rule; and for the more convenient determination of the right to vote, and to prevent fraud, it is now generally required that the elector shall only take part in either local or general elections at the place of

1 See Cushing's Legislative Assemblies, § 24. Also § 27, and notes referring to legislative cases. Drunkenness is regarded as temporary insanity. Ibid. Idiots and lunatics are expressly excluded by the constitutions of Delaware, Iowa, Kansas, Maryland, Minnesota, Nevada, New Jersey, Ohio, Oregon, Rhode Island, West Virginia, and Wisconsin. Paupers are excluded in New York, California, Louisiana, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, and West Virginia. Persons under guardianship are excluded in Kansas, Maine, Massachusetts, Minnesota, and Wisconsin. Persons under interdiction are excluded in Louisiania; and persons excused from paying taxes at their own request, in New Hampshire. Capacity to read is required in Connecticut, and capacity to read and write in Massachusetts.

his residence, where he will be known and where the opportunities for illegal or fraudulent voting will be less than if allowed to vote at a distance and among strangers. And where this is the requirement of the constitution, any statute permitting voters to deposit their ballots elsewhere must necessarily be void.1

A person's residence is the place of his domicile, or the place where his habitation is fixed, without any present intention of removing therefrom.2 The words "inhabitant,"" citizen," and "resident," as employed in different constitutions to define the qualifications of electors, mean substantially the same thing; and one is an inhabitant, resident, or citizen at the place where he has his domicile or home. Every person at all times must be considered as having a domicile somewhere, and that which he has acquired at one place is considered as continuing until another is acquired at a different place. It has been held that a student in an institution of learning, who has residence there for purposes of instruction, may vote at such place, provided he is emancipated from his father's family, and for the time has no home elsewhere.1

1 Opinions of Judges, 30 Conn. 591; Hulseman v. Rems, 41 Penn. St. 396; Chase v. Miller, Ibid. 403; Opinions of Judges, 44 N. H. 633; Bourland v. Hildreth, 26 Cal. 161; People v. Blodgett, 13 Mich. 127. There are now constitutional provisions in New York, Michigan, Missouri, Connecticut, Maryland, Nevada, Rhode Island, and Pennsylvania, which permit soldiers in actual service to cast their votes where they may happen to be stationed at the time of voting. The case of Morrison v. Springer, 15 Iowa, 304, is adverse to those above cited.

2 Putnam v. Johnson, 10 Mass. 488; Rue High's Case, 2 Doug. (Mich.) 523; Story, Confl. Laws, § 43.

Cushing's Law and Practice of Legislative Assemblies, § 36.

"The

Putnam v. Johnson, 10 Mass. 488; Lincoln v. Hapgood, 11 Mass. 350. questions of residence, inhabitancy, or domicile — for although not in all respects precisely the same, they are nearly so, and depend much upon the same evidence are attended with more difficulty than almost any other which are presented for adjudication. No exact definition can be given of domicile; it depends upon no one fact or combination of circumstances; but, from the whole taken together, it must be determined in each particular case. It is a maxim that every man must have a domicile somewhere, and also that he can have but one. Of course it follows that his existing domicile continues until he acquires another; and vice versa, by acquiring a new domicile he relinquishes his former one. From this view it is manifest that very slight circumstances must often decide the question. It depends upon the preponderance of the evidence in favor of two or more places; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which

In some of the States it is regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. By this arrangement the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions concerning the right of individuals to exercise this important franchise. Electors also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has been sometimes claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconstitutional and void, as adding another test to the qualifications of electors, which the constitution fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in another place. If a seaman, without family or property, sails from the place of his nativity, which may be considered his domicile of origin, although he may return only at long intervals, or even be absent many years, yet if he does not by some actual residence or other means acquire a domicile elsewhere, he retains his domicile of origin." Shaw, Ch. J., Thorndike v. City of Boston, 1 Met. 245. In Inhabitants of Abington v. Inhabitants of North Bridgewater, 23 Pick. 170, it appeared that a town line run through the house occupied by a party, leaving a portion on one side sufficient to form a habitation, and a portion on the other not sufficient for that purpose. Held, that the domicile must be deemed to be on the side first mentioned. It was intimated also that where a house was thus divided, and the party slept habitually on one side, that circumstance should be regarded as a preponderating one to fix his residence there, in the absence of other proof. And see Rex v. St. Olave's, 1 Strange, 51.

By the constitutions of several of the States, it is provided, in substance, that 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 a student in any seminary of learning; nor while kept at any almshouse or asylum at public expense, nor while confined in any public prison. See Const. of N. Y., art. 2, § 3; Const. of Illinois, art. 6, § 5; Const. of Ind., art. 2, § 4; Const. of California, art. 2, § 4; Const. of Mich., art. 7, § 5; Const. of Rhode Island, art. 2, § 4; Const. of Minnesota, art. 7, § 3; Const. of Missouri, art. 2, § 20; Const. of Nevada, art. 2, § 2; Const. of Oregon, art. 2, §§ 4 and 5; Const. of Wisconsin, art. 3, §§ 4 and 5.

has prescribed, and as having the effect, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fundamental law. This position however has not been accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised.1 Such regulations must always have been within the power of the legislature, unless forbidden. Many resting upon the same principle are always prescribed, and have never been supposed to be open to objection. Although the Constitution provides that all male citizens twenty-one years of age and upwards shall be entitled to vote, it would not be seriously contended that a statute which should require all such citizens to go to the established place for holding the polls, and there deposit their ballots, and not elsewhere, was a violation of the Constitution, because prescribing an additional qualification, namely, the presence of the elector at the polls. All such reasonable regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity of the ballot-box, are not only within the constitutional power of the legislature, but are commendable, and at least some of them absolutely essential. And where the law requires such a registry, and forbids the reception of votes from any persons not registered, an election in a township where no such registry has ever been made will be void, and cannot be sustained by making proof that none in fact but duly qualified electors have voted. It is no answer that such a rule may enable the registry officers, by neglecting their duty, to disfranchise the electors altogether; the remedy of the electors is by proceedings to compel the performance of the duty; and the statute, being imperative and mandatory, cannot be disregarded. The danger, however, of any such misconduct on the part of officers is comparatively small, when the duty is entrusted to those who are chosen in the locality where the registry is to be made, and who are consequently immediately responsible to those who are interested in being registered.

In some other cases preliminary action by the public authorities may be requisite before any legal election can be held. If an

1 Capen v. Foster, 12 Pick. 485; People v. Kopplekom, 16 Mich. 342.