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(Place of voting.) establish his right to vote, if it were challenged, or to challenge, if it were doubtful.

The amendment, so understood, introduced not only a new test of the right of suffrage, to wit, a district residence, but a rule of voting also. Place became an element of suffrage for a twofold purpose; without the district residence, no man shall vote; but having had the district residence, the right it confers is, to vote in that district. Such is the voice of the constitution; the test and the rule are equally obligatory; we have no power to dispense with either; whoever would claim the franchise which the constitution grants, must exercise it in the manner the constitution prescribes.

But, be it observed, the constitution does not define an election district; and therefore, I hold, that it referred the definition to the legislature. The words “election district” do not occur in the constitution of 1790; the word “district,” was often applied by that instrument to subdivisions of the state for senatorial, representative and judicial purposes, but never for purposes of election Election districts acquired their first constitutional recognition in 1838; they had, however, long been familiar to our ordinary legislation. “Where any township or townships hath or have been divided, or hereafter shall be divided, in forming any election district," an inspector shall be chosen for each district, said the 7th section of the act of 15th February 1799 (3 Smith's Laws 344); and since that time, we have had innumerable acts of assembly creating, dividing and subdividing election districts, until the legislature grew tired of the subject, and in 1854, turned it over to the courts of quarter sessions, to fix election districts, “so as to suit the convenience of the inhabitants thereof." Purd. Dig. 386. Always, from 1799 down to the present hour, election districts, within the meaning of our statutes, have denoted subdivisions of Pennsylvania territory marked out by known boundaries, pre-arranged and declared by public authority. Whether composed, as at different

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(Place of voting.)

periods they have been, of counties or cities, of townships or boroughs, of wards or of precincts, they have always been such subdivisions of our own territory, and no man has been known to suggest the formation of an election district, by Pennsylvania authority, outside of her state borders. Now, whilst the constitution did not stop to define election districts, it took up and incorporated them, as the legislature had theretofore, and should thereafter, define and regulate them; it referred itself to the legislative will on the subject; and therefore, election districts mean, in the constitution, just what they mean in the statutes. This necessary dependence of constitutional principles upon auxiliary legislation, was explained in Commonwealth v. Maxwell, 27 Penn. St. R. 444.

We must understand the constitution, then, as prescribing to the qualified voter, that his ballot is to be cast in such an election district as the legislature may erect, by itself or through the courts. And the legislative power over election districts is unlimited within our own state. Whether they could form a district beyond our territorial jurisdiction, for the convenience of our own citizens, is a question which need not be considered, for no such legislation has been attempted; but it is quite clear to our minds, that the legislature might erect a military camp within the state, into an election district, and the moment they should do so, the constitution would apply itself to that district, in the same manner as to any other.

There must, however, not only be a district to vote in, but there must be a residence therein for ten days next preceding the election; this a part of the condition of suffrage. Undoubtedly, the primary signification of the word “residence,” as used in the constitution, is the same as domi. cil—a word which means the place where a man exercises his civil and political rights; but I am not satisfied, that the constitution meant to limit itself to this strict and technical definition of residence. Referring the subject of election districts to the legislature, as we have seen that it


(Place of voting.) did, I incline strongly to think, that the constitution meant also, to leave the subject of residence in an election district, to legislative discretion, and therefore, that the legislature are as free to declare what shall be residence in an election district for ten days next preceding the election, as they are to prescribe the boundaries of the district. When they have not exercised their power, nor attached to the word any other than its ordinary legal signification, it is to be received, according to its primary meaning in the constitution, as equivalent to domicil; but if they should make a military camp, in Pennsylvania, an election district, and declare that military sojourn and service therein for ten days should be equivalent to a constitutional residence, for the purposes of election, I would be extremely loth to think such a law unconstitutional. These observations, however, on the meaning of the word residence, must not be considered as expressing the opinion of the court, but only my own.

The meaning of the constitutional clause under consideration may, therefore, on the whole, be stated thus: every white freeman, twenty-one years of age, having “resided,' according to the primary meaning of that word, or according to legislative definition of it, in any “ election district,” created by or under the authority of the legislature, for ten days preceding the election, shall be permitted to offer his ballot in that district.

Having now defined, with all possible clearness, the meaning we attach to the clause of the constitution in question, we turn next to the consideration of the meaning of the 43d section of the act of 1839. Like all other parts of a statute, it is to be construed, if possible, in a manner that shall be consistent, not only with the constitution, but with the other parts of the same statute; neither unconstitutionality nor repugnancy are to be assumed, but if both clearly appear, we ought not to be expected to give the section effect. The section says that the citizens referred to in its first (Place of voting.) clause “may exercise the right of suffrage, at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong.' Now, we have seen above that the constitution prescribes a place for the exercise of the right of suffrage, to wit, an election district. The 43d section does not affect to create an election district; there is not a word in it for that purpose; there is no designation of boundaries, no subdivision of territory, nothing, not a word or thought which bears the slightest relation to our legislation on the subject of election districts. But it is said, the place which the commanding officer is authorized to appoint, is the substantial equivalent of an election district. Not so, for many reasons; for these two, particularly:

1. There is no prior public designation of the place. One purpose of having election districts designated by some public record is, that all parties interested may know where to resort to find the ballot-box; some go there to vote; others to watch for illegal voters; others to electioneer; but all have an interest in knowing where the law of the land has directed the election to be held. The military commander makes no public proclamation of the place he appoints; no record exists of his appointment.

2. A second and perfectly conclusive reason why the place fixed by the commander cannot be regarded as an election district is, that the legislature have no power to authorize a military commander to make an election district. It is a part of the civil administration—this designating of election districts—and however it may be committed by one of the three co-ordinate departments of the government to another of those departments, as by the legislature to the judiciary, no civil functions of either department can be delegated to a military commander; this would be to confound the first principles of the government.

If the legislature had said, in the most express terms, that the commander might declare his camp, wherever it (Place of voting.) might happen to be, an election district, it could have availed nothing; for the constitution, in referring to the legislature for election districts, recognised them as among the civil institutions of the state, to be created and controlled exclusively by the civil, as contradistinguished from the military power of the state. The constitution says “the military shall, in all cases and at all times, be in strict subordination to the civil power,” which is marking a distinction between the two powers with great emphasis. To the civil, and not to the military power, did the constitution entrust the formation of election districts, and therefore, the civil cannot commit it to the military..

If then, the legislature did not, and could not, authorize the military commander to form an election district, how could there be any constitutional voting under the 43d section? Without an election district, there can be no constitutional voting; the 43d section provides for no election district, and no military commander can be empowered to form one; hence, it follows, as an inevitable deduction, that the place” referred to in that section is inconsistent with the constitutional requisition of an election district, and that whatever votes have been cast, in pursuance of that section, since the constitution of 1838 came in, have been cast without authority of law. If the place of voting has been, as in many instances we know it has been, in other states and in the District of Columbia, the assumptions set up in behalf of it have only been the more extravagant. For, observe, it has been first assumed that the constitution was intended to have extra-territorial effect; next, that the legislature had power to make election laws, to be executed not only in Pennsylvania, but in other states; then, that the 43d section established election districts wherever a commander of a troop or company should be pleased to appoint; and finally, that the presence of the soldier-voter at that place (though it might be on a forced march, or in the tug of battle), was residence for ten days, within the meaning of the constitution; no

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