Opinion of the Court-Sullivan, J., Dissenting.

tration in Erie, Pa., County Court Co-op. Dig. 1899, vol. 7, p. 2039. The first three cases cited arose under provisions of the constitutions of three respective states similar to the provisions of said section 5 of our constitution, except, however, that the section in those state constitutions contained the clause, to wit, "nor while confined in any public prison." Section 3 of said article 6 of our constitution prohibits certain persons from voting, and includes those "confined in prison on conviction of a criminal offense." The laws establishing the soldiers' homes in New York, Michigan, and Kansas are quite different from that establishing the soldiers' home in Idaho. They provide only for the admission of disabled indigent and pauper soldiers and sailors-those who are dependent upon charity for their support; and they must be discharged or turned out as soon as they become self-supporting. Inmates of those homes were admitted for temporary purposes only, and could not acquire a permanent domicile or residence therein. In Silvey v. Lindsay, supra, the court said: "The intending voter was in Bath [the town where said home was situated] as a mere inmate of the institution, and for temporary purposes"; and held that he was not a legal voter, and say; “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." Why did that court there say that each case must be decided upon all of the circumstances of the case, if it intended to hold that the one fact that being an inmate of such institution prohibited such inmate from gaining a voting residence? The case of Wolcott v. Holcomb, supra, quotes largely from the opinion in Silvey v. Lindsay. The law that established the soldiers' home of Michigan and the rules and regulations adopted for its government show that it was a poor house for pauper soldiers and sailors, and the decision in that case clearly indicates that the court so held. It is stated on page 367, 97 Mich., page 839, 56 N. W., page 218, 23 L. R. A., as follows: "If the construction [of the provision of the constitution under consideration] contended for by the relator be correct, it follows that all of the inmates of county almshouses and of prisons and jails are

Opinion of the Court-Sullivan, J., Dissenting.

electors, at their option, in the townships and cities where those institutions are located." The matter stated in that quotation from the Michigan case no doubt had a controlling influence in the decision of it. As is stated on page 364, 97 Mich., page 838, 56 N. W., and page 217, 23 L. R. A., as follows: "The mischief intended to be avoided is as apparent in this case as in any. The inmates of the home own no property, pay no local taxes, do not work in or for the benefit of the municipality, and have no pecuniary interest in its local affairs. In fact, they have no connection with it, and stand in no relation to the local municipal government." Thus it is shown that that case is very different from the one at bar. The inmates of the Idaho Soldiers' Home may, and, so far as the record shows, do, own property, pay local taxes, do work in and for the benefit of the municipality, and have a pecuniary interest in its local affairs. The constitution of Michigan has no prohibited classes as we have in said section 3, article 6, of our constitution. That fact, no doubt, had its influence on the mind of the supreme court in the rendition of said opinion, or, at least, on the minds of the majority of the court, as that opinion was by a divided court (three to two), as Chief Justice Hooker wrote a dissenting opinion, in which Mr. Justice Long concurred. In reply to that statement in the opinion of the majority of said court wherein it is suggested that the inmates of said home own no property, pay no taxes, and do no work for the benefit of the municipality, the chief justice, in his dissenting opinion, very cogently remarks that, "it never has been a requisite to electoral rights that the citizen should pay taxes, do work for the benefit of the municipality, or evince interest in municipal affairs; nor does the right depend upon a wise or even honest exercise of the privilege of the ballot"; that "this proposition is so important a part of the foundation of our institutions that it should not be eliminated or weakened by any unnecessary construction of a constitution based upon civil and political equality"; and that "the true construction of this section should be just what its language imports i. e., that being kept in an almshouse, or attendance at a college, or employment in the service of the United States,

Opinion of the Court-Sullivan, J., Dissenting.

or the navigation of the lakes or high seas, does not work a change of residence against the intention or desire of the individual." If it be a necessary qualification to vote that one owns property, pays taxes, and does work for the benefit of the municipality, no doubt thousands in this state would be disqualified from voting. If that was a reason for adopting said constitutional provision, it ought to apply to all alike, and not alone to the student, soldier, and old veteran.

What we have said in regard to the case of Wolcott v. Holcomb substantially applies to the case of Lawrence v. Leidigh, supra, and the court apparently rests its opinion upon the New York and Michigan cases, supra, and the further fact that the law establishing the soldiers' home in Kansas, provided in direct terms that inmates of said homes could not acquire a legal residence while inmates of said home. In Warren v. Board, 72 Mich. 398, 40 N. W. 553, Justice Campbell, after quoting section 5 of article 7 of the constitution of that state, which is the same, so far as the question under consideration is concerned, as said section 5, article 6, of the Idaho constitution, says: "These provisions do not prevent such persons from becoming residents, if such is their purpose, and if they are able to choose." One class of persons named in said section of the Michigan constitution was those confined in public prisons. They were not "able to choose." That court held that all of the classes named in said section that were able to choose were not prohibited by the provisions of said section from becoming residents for voting purposes.

The case of Stewart v. Kyser, 105 Cal. 459, 39 Pac. 19, is a soldiers' home case, is directly in point, and sustains the contention of respondent. In that case, a number of the inmates of the veterans' home, and inmates of the county infirmary, and certain students of Napa College voted at an election held in the precincts of the county in which those institutions are situated. The appellant contended that such inmates and students had not been residents of the county and precincts in which they respectively voted during the period of thirty days immediately prior to said election, and for that reason were not qualified electors. The testimony of one of

Opinion of the Court-Sullivan, J., Dissenting.

the inmates of the veterans' home is quoted in said opinion, and it is stated in the opinion that the evidence of said witness upon the issue as to the qualifications of said witness is substantially a fair sample of that applicable to each of the other inmates of the veterans' home, the infirmary, and the college, whose votes were adjudged to have been legal. Said evidence is as follows: Killalee came to the county and to the precinct and entered the home as an inmate on November 14, 1891. For some time prior to this date he was living on the charity of relatives and friends in the city and county of San Francisco, where he was an elector. He made and subscribed the usual application, and obtained a permit to enter the home. He says that: "The reason I went there was because I was in indigent circumstances. Circumstances compelled me to go, and I would not have gone there had it not been for those circumstances. I had no desire to become a resident of the vet erans' home or the precinct other than as induced by my indigent circumstances. Since I have been there, I have been maintained and supported by the home. At the time I went there, I did not have any fixed intention with respect to the length of time I should stay there. It was my intention to stop there as long as I lived. I have no other interests in the precinct except my relations with the home. I went there with the expectation of living and dying there-making it my permanent home the balance of my life. I have no relatives or property interest in the veterans' home precinct. I have no other home. At the time I went there, it was my intention to make the home my permanent home. I make it as a home to live and die-as a refuge." The question presented in that case was whether or not said witness "Killalee was a legal resident of the veterans' home precinct, and entitled to vote at the last general election." It was conceded in that case, as in the case at bar, that said witness had all of the requisite qualifications of an elector, except that of residence; and it was contended there, as here, that said witness could not gain a residence for the purpose of voting at the soldiers' home, while there, as a beneficiary at public expense, for thə reason that the gaining of such is prohibited by the fourth

Opinion of the Court-Sullivan, J., Dissenting.

section of the second article of the constitution of that state, which is as follows: "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 at any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison." In reference to that section of the California constitution, that court said: "As construed by our supreme court in the case of People v. Holden, 28 Cal. 137, this section does not have the effect claimed for it by counsel for appellant. In that case, the qualification of soldiers to vote while employed in the service of the United States was questioned, and it was decided that their presence in Mendocino county, while thus employed in the service of the United States did not 'preclude them from acquiring a residence in Mendocino, if disposed to do so.' The court further said: "That it was their intention to acquire a domicile in Mendocino county sufficiently appears from the evidence. Such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law) which stands in the way of their doing so." After quoting the above from the decision. of People v. Holden, the court says: "Thus their residence, for the purpose of voting in Mendocino county, was made to depend upon the proof of their intention to make that county their place of residence while there present in the service of the United States, there being no question that they had all other requisite qualifications of electors"; and holds that said decision is clearly in point for respondents. The provisions of the California constitution under which said case arose are identical with our own upon the point under consideration, and the court, in that opinion, construed said provisions, and gave them the effect intended, to wit, they were adopted for the benefit of, and to enlarge and protect the rights of, those classes, and were not intended to deprive them of a privilege so common in this country. To the same effect is Pedigo v.