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1811, the plaintiff was a resident in Roxbury, being a householder and having a family there; previously to that day, he had been appointed, commissioned and qualified as clerk of the judicial courts in the county of Norfolk; and on that day, he came to Dedham, for the purpose of performing the duties of his office, and took possession of the apartments of the court-house assigned for the use of the clerk. That his family and household establishment remained in Roxbury until the 12th November, when he removed them to Dedham; from the 28th October to the 12th November, he boarded at a publichouse, at Dedham, and during the first week lodged there three nights; that on the 29th October, he contracted for a house in Dedham, which he was to rent and occupy from the 12th November; that on the 1st November, he returned to his family in Roxbury, where he continued until the 4th; that on the last-mentioned day, he contracted, at Roxbury, for a horse and chaise to go to Dedham daily, and return to Roxbury at night, which he used accordingly on the 4th, 5th, 6th and 8th of November, having been detained at Dedham on the night of the 6th; that from the evening of the 8th to the 12th November, he did not return to Dedham; from the 28th October to the 12th November, he had his washing, &c., done in his family at Roxbury. That on the 24th June 1812, the plaintiff was superseded in his office of clerk, and immediately after opened an office in Roxbury, as an attorney, advertising that he had resumed his professional business. That from the 24th June to the 12th November following, his family remained in Dedham, he frequently going to Roxbury and returning to Dedham at night; and that during this term, being a justice of the peace for the county of Norfolk, he had writs made returnable before him, at his office in Roxbury, where he officiated as a justice, entering up judgments and issuing executions.
Metcalf, for the plaintiff.
Bigelow and Chickering, for the defendants.
PARKER, C. J., delivered the opinion of the court. The only qualification, to entitle the plaintiff to vote in Dedham, when his vote was rejected by the defendants, which is disputed, is his residence in that town for one year next preceding the election; he had before resided in Roxbury, within the same congressional district, and the question is, whether he had been domiciled in Dedham one year immediately preceding the election. He had unquestionably a right to vote, provided he had been so domiciled. On the 28th of October in the preceding year, he received an appointment, which rendered it convenient, if not necessary, for him to dwell in Dedham; and he then began to prepare for his removal; from that time until the 12th of November, he passed almost every day to Dedham, where he transacted his business, and returned to his family each night, except three, on which he slept at Dedham rather by accident than design; he had also, on the 29th of October, engaged a house in Dedham, but he did not occupy it until the 12th of November, on which day he removed his family, and became domiciled in Dedham.
We are of opinion that, under these circumstances, he remained an inhabitant of Roxbury, until the day of his removal with his family; and there can be no doubt, that he might legally have exercised any of his municipal privileges there, up to that time. It follows, that he did not begin to be an inhabitant of Dedham, until after the 2d day of November 1811; and as the election at which he tendered his vote, was on the 2d day of November 1812, he was not then entitled to vote, in consequence of having been an inhabitant of that town for one year next preceding the election.
But another ground was assumed by his counsel, and very ingeniously maintained in argument, namely, that being a resident within the congressional district, for which the election was holden, and being otherwise duly qualified, he had a right to vote in any town within that district;
and the court were, for some time, strongly inclined to this opinion. But a due consideration of the constitution, and the laws relative to this subject, and the consequences of establishing a right to vote in any other town than that of which the voter is an inhabitant, has induced us to change our opinion. It is true, as suggested by the counsel, that some of the reasons for confining the electors of representatives in our general court, to towns, do not exist in the case of electors of a member of congress. But the qualifications of electors are settled by the constitutions of the United States and of this commonwealth; and there is no power, while those constitutions remain, to add to or diminish from those qualifications.
By the constitution of the United States, the electors of a representative in congress are to have the qualifications requisite for electors of the most numerous branch of the state legislature; and by the constitution of this state, one of the qualifications for an elector of a representative is, a residence in the town where he offers his vote, for the space of one year next preceding any election. We do not suppose that an uninterrupted residence is required of a person who has his home in any particular town; for, occasional absences for pleasure, health or business, may happen to many inhabitants of a town, in the course of a year; and it was not intended, that such absences should deprive them of their right to vote. But it is necessary that, for the space of a year, the voter should have had his home in the town where he claims to exercise this privilege; and a person removing from one town to another, does not acquire a right to participate in the choice of a representative of his adopted town, until he has made it his home for the space of a year before the election. Whether a citizen, removing into a neighboring town with his family, with an evident intention to change his residence, retains the right of voting in the town he has left, until he has acquired it in the town to
which he has removed, is a question not now before us.* If he does not, volenti non fit injuria; and if the election is deemed by him of sufficient importance, he can always choose his time for removal, so as not to lose his right.
It has been argued, that our legislature have given a different construction to this constitutional provision, by extending the powers and duties of selectmen of towns, with respect to these elections, to the assessors of incorporated plantations, which have not a right, by the constitution of the state, to elect representatives to the state legislature; and this, it is said, is practically admitting that every qualification to vote for a state representative, is not necessary to entitle one to vote for a member of congress. It is true, that in this respect, persons may be considered as allowed by the legislature to vote for members of congress, who are not permitted to vote for state representatives. We apprehend, however, that there is no provision in any statute, authorizing persons to vote in any other than their own town or plantation; the inhabitants of plantations too may be considered as qualified to choose representatives, if they, together with the other qualifications, have that of residence. It is because the community to which they belong, has not arrived at the enjoyment of corporate powers in this particular, that a representative cannot be sent; not because the inhabitants are not personally qualified.
But supposing that the legislature has the right to make a distinction between the personal and local qualifications of an elector, and to determine that the constitution of the United States requires only that the personal qualifications of the electors shall be the same with those of the electors of the popular branch of the state government; still, some act of the legislature is requisite, to authorize the selectmen of any town to receive the vote
* That he does not, was decided in McDaniel's Case, 3 Penn. L. J. 310; and in Thompson v. Ewing, 1 Brewst. 103.
of any person, not an inhabitant. By standing laws, towns are required to have correct lists of the qualified voters belonging to the town, and the selectmen are bound to govern themselves by those lists. How could they proceed at an election, if they were bound to examine the qualifications, and receive the votes, of multitudes who might present themselves at the polls from distant towns in the same district? Perhaps the legislature might provide by law, that all the votes for the district of Norfolk should be given in to the selectmen of Dedham, or of any other town in the district; but this would be so manifestly inconvenient, both to the selectmen and the electors, that we cannot suppose the provision existing, unless we find a clear and positive statute to that effect.
Upon full consideration of this subject, we do not think, if we had the power of changing the constitution, we should attempt it in this instance. If electors were not limited, in the exercise of their privilege, to some particular space, great abuses might be practised, by going from town to town, and multiplying the vote of an individual, in districts where the towns are contiguous, and where they hold their meetings at different hours of the day. Besides, as there are qualifications of property, which are with difficulty ascertained, we believe that the residence of a voter within the corporation for a year, will enable the officers who regulate the elections, to judge more correctly, than if they were obliged to receive the votes of strangers, who may have lived but a few days within their observation. Upon the whole, we are satisfied that the defendants have done no wrong to the plaintiff, in the instance complained of; and according to the agreement of the parties, the plaintiff must be called.
Judgment of nonsuit.
Residence, within the meaning of the constitution, as applied to the qualification of an elector, is the same as domicil, the place where a man establishes his abode, makes the seat of his property, and exercises