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(Acquisition of domicil.)
states, and at their proper domicils exercise the privilege of electors. The student does not become disfranchised, but like all others who are engaged in temporary pursuits away from home, he is compelled to go to his proper domicil to exercise the right of suffrage.
By the official returns the votes stand as follows: George B. Roth 223, George Fry 218, William Kichline 224, John Nonnemacher 208, George T. Young 192, Eli J. Saeger 211. Of the votes now rejected twelve were cast for George B. Roth, George Fry and William Kichline, and three for John Nonnemacher, George T. Young and Eli J. Saeger; deducting the twelve and three from the candidates respectively, the vote will stand thus: George B. Roth 211, George Fry 206, William Kichline 212, John Nonnemacher 205, George T. Young 189, Eli J. Saeger 208. Eli J. Saeger is thus elected over George Fry, to whom a certificate of election has been issued by the judges of the election.
And now, to wit, 5th June 1871, it is ordered, considered, adjudged and decreed that a certificate of election be forthwith issued by the clerk of the court of quarter sessions to Eli J. Saeger, as a member of the common council in and for the city of Allentown, and that the certificate heretofore issued by the election officers to George Fry, be and the same is hereby declared to be null and void.
In Pennsylvania, it is provided by statute, that if an elector claim to have resided within the state for one year or more, his own oath shall be sufficient proof thereof. Purd. Dig. 376. But under this law, it was ruled by the court of common pleas of Philadelphia, on the 3d November 1848, that although the election officers are concluded by the answers of the person offering to vote, yet, they have the clear right to obtain from him full answers on the question of his residence, and if the result of those answers proves that he has not a legal domicil within the district, they may reject his vote.
Domicil of choice is a conclusion of law from the fact of a man fixing
(Acquisition of domicil.)
voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. Haldane v. Eckford, L. R., 8 Eq. 631; Case v. Clarke, 5 Mason 70. It is a settled principle of law, that no man shall be without a domicil; and to secure this end the law attributes to every individual, as soon as he is born, the domicil of his father, if legitimate, or of his mother, if illegitimate; domicil of choice is the creation of the party, when acquired, the domicil of origin is in abeyance, but not absolutely extinguished; for, so soon as a domicil of choice is abandoned, the domicil of origin revives, without any special intention on the part of the individual; thus, if, after having acquired a domicil of choice, a man abandon it and travel in search of another domicil of choice, the domicil of origin comes instantly into action, and continues until a second domicil has been acquired. Udny v. Udny, L. R., 1 H. L. Sc. 441; s. c. 4 Am. L. Rev. 678; Story's Conflict of Laws, § 48. And see Rabaud v. D'Wolf, 1 Paine 587-8. Ex parte Wiggin, 1 Bank. Reg. 90.
The principle of this case has recently been affirmed in Michigan, under the following state of facts: in the early part of the civil war, Frank Hodges, a resident of the town of Vergennes, enlisted in the federal army, and having been disabled by the loss of an arm, was appointed to a clerkship in the interior department at Washington; in October 1870, he returned to Vergennes, for the purpose of being registered as an elector, but was denied the privilege of registry, on the ground of non-residence. In a suit for damages against the registering officers, in the circuit court of Kent county, at Grand Rapids, it was held by Hoyt, J., that Hodges had not lost his domicil at Vergennes, and that he was entitled to vote in that town. Ledger, 31st July 1871. And see Maddox v. State, 32 Ind. 111, where a similar question was determined in Indiana.
PEOPLE v. HOLDEN.
In the Supreme Court of California.
APRIL TERM 1865.
(REPORTED 28 CALIFORNIA 123.)
[Purging the polls.]
The statutory remedy given to contest an election, does not oust the jurisdiction on information in the nature of a quo warranto.
The list of ballots, returned with the poll-list and tally-paper, is better evidence of the number of votes cast, and for whom, than the tally-list made from them by the election officers.
If an elector vote twice at the same election, his second vote must be excluded in the count.
An elector can only vote at his place of domicil; the thirty days' residence required, is to be computed by excluding the day of election.
A ballot which contains the name of the person voted for, and the office, two or more times, is to be counted as one vote; it is not looked upon as two or more tickets folded together.
An elector may acquire a new domicil, so as to entitle him to vote, while in the military service of the United States, by an actual intention to make such place his future residence.
Appeal from the District Court, seventh judicial district, Mendocino county. The relator and the defendant were candidates for the office of county judge, at the judicial election held in the autumn of 1863. The defendant was declared duly elected by the board of canvassers, and was commissioned by the governor; whereupon the attorney-general filed this information in the nature of a quo warranto, charging the defendant with having intruded into, usurped and unlawfully exercised the said office. During the progress of the cause, certain stipulations, in relation to the taking of testimony, were entered into between the counsel for the relator and defendant, which are noticed in the opinion. The court below gave judg ment for the relator, from which the defendant appealed.
Bennett, and Cook & Clarke, for the appellant.
(Purging the polls.)
SANDERSON, C. J., delivered the opinion of the court. It is first claimed by the appellant, that the district court had no jurisdiction in the premises, and that the only remedy, in cases like the present, is, under the statute which prescribes the mode and manner of contesting elections. Wood's Dig. 380, § 51. No proposition could be more untenable. It is true, that the act providing the mode of contesting elections, confers upon any elector of the proper county, the right to contest, at his option, the election of any person who has been declared duly elected to a public office, to be exercised in and for such county; but this grant of power to the elector, can in no way impair the right of the people, in their sovereign capacity, to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise, and to remove him therefrom, if it be made to appear that he is a usurper, having no legal right thereto. The two remedies are distinct, the one belonging to the elector in his individual capacity, as a power granted, and the other to the people, in the right of their sovereignty. Title to office comes from the will of the people, as expressed through the ballot-box, and they have a prerogative right to enforce their will, when it has been so expressed, by excluding usurpers and putting in power such as have been chosen by themselves; to that end, they have authorized an action to be brought in the name of the attorney-general, either upon his own suggestion or upon the complaint of a private party, against any person who usurps, intrudes into or unlawfully holds or exercises any public office, civil or military, or any franchise within this state. It matters not, upon what number of individual persons a right, analogous in its results when exercised, may have been bestowed, for the power in question, none the less, remains in the people in their sovereign capacity; it has been shared with the elector, but not parted with altogether. Substantially the same point
(Purging the polls.)
was made in the case of People v. Jones, 20 Cal. 50, with
It is next claimed, that it is nowhere shown by the record, that all the election returns of the various precincts were given in evidence, and hence, it is argued, that neither the court below nor this court can determine which candidate received the most votes. It may be true, as claimed, that the record does not state, in so many words, that all the returns were given in evidence, yet it is apparent, from a comparison of the allegations of the complaint (not controverted), as to the number of votes cast, with the number as shown by the returns contained in the record, that such was the case; a formal statement that they were all introduced, is not indispensable; if it appear, in any manner, that such was the fact, it is sufficient; and we are satisfied, from an examination of the record, that all the returns were before the court. Thus, it is stated in the complaint, that according to the count of the board of canvassers, the relator received 488 votes and the defendant 530, which is not denied in the answer; it is also stated in the complaint, and not denied in the answer, that the returns from Noyo precinct, which show upon their face, 48 votes for the relator and 10 for the defendant, were rejected by the board of canvassers; these votes being added to the estimate of the board, make the entire vote of the county stand, for the relator 536 and for the defendant 540; which is the exact vote as shown by the returns contained in the record. It is manifest, therefore, that all the returns were given in evidence, and that they are now before us.
Upon the face of the returns, as already stated, the defendant received 540 and the relator 536 votes, giving a majority of four to the defendant. Upon the trial, the court found that the defendant received 535 votes and no more, and the relator 537, which was, subsequently, at the hearing of the motion for a new trial, reduced to 536, giving the relator one majority. It is alleged on the part