Opinion of the Court-Sullivan, J., Dissenting. Grimes, 113 Ind. 148, 13 N. E. 700. That case involved the right of a student attending college to vote. The court said: "Taking the view of the testimony most favorable to the appellant, the utmost that can be said of it is that the voters entered the state university at Bloomington without, at the time of entering, having formed a definite intention of mak ing that place their residence, but that they did subsequently determine that it should be their residence. This gave them the right to vote, because there is no evidence that this was not their intention, formed and acted upon in good faith. We think it clear that, if they had gone to Bloomington with the intention of remaining simply as students, and there was no change of intention, they would not have acquired a resi dence." Several authorities are then cited, and the opinion proceeds: "Where, however, the intention is formed to make the college town the place of residence, and that place is selected as a domicile, when the person has done this in good faith, he becomes a qualified voter." Apply the correct and reasonable rule there laid down to the case at bar, and the plain intention of the provisions of said section 5 of our constitution is effected and accomplished, and no one disfranchised by a court-made constitutional provision. In the case at bar it is agreed that each of the persons whose vote is questioned would testify "that they abandoned their former residences and places of abode with no intention of returning thereto, and took up their residence in said soldiers' home precinct, Ada county, Idaho, and thereafter resided and continued to reside therein with the intention of permanently remaining and residing there." Thus it is shown that said persons abandoned their former residence and place of abode without any "intention of returning there, and took up their residence in said soldiers' home precinct with the intention of permanently remaining and residing in said precinct"; not to be turned out as soon as their physical or financial condition permitted, as the laws of the states of Michigan and Kansas required to be done in those states. The good faith and intention of said persons is not questioned, but it is contended that they cannot gain a residence in said precinct while an inmate of said home. Apply to the Opinion of the Court-Sullivan, J., Dissenting. above facts-which clearly show intention-the reasonable rule laid down in the Indiana case above cited, and the brave old veterans, whose heroism and self-sacrifice assisted in preserving the unity of the nation, will not be disfranchised by court-made constitutional provisions. In Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, which is a college student case, the court, in passing upon the meaning of the word "residence," as used in the constitution of Maryland, says: "It does not mean, as we have said, one's permanent place of abode, where he intends to live all his days, or for an indefinite or unlimited time; nor does it mean one's residence for a temporary purpose; . . . . but means, as we understand it, one's actual home in the sense of having no other home, whether he intends to reside there permanently or for a definite or indefinite length of time"; and hold, under the facts of that case, the defendant had a right to vote. In Vanderpoel v. O'Hanlon, 53 Iowa, 246, 36 Am. Rep. 216, 5 N. W. 119—a college student case-it is held that, to constitute a residence within the meaning of the article of the constitution prescribing qualifications of voters, the fact of residence and the intent to remain must concur. Both of which concur in the case at bar. In section 69 of Paine on Elections, referring to college students, the author says: "The question of residence is to be determined by all the circumstances of each case. Among such circumstances, the intent of the party, the existence or absence of other ties or interests elsewhere, the dwelling place of the parents, or, in the case of an orphan, just of age, of near friends, with whom he had been accustomed to make his home in his minority, would, of course, be of the highest importance." And in section 70 it is said: "Under a constitution declaring that the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town in which such seminary is situated, while such residence will not entitle him to the right, it will not prevent its acquisition." So in the case at bar, under the provisions of said section 5 of our constitution, which is that, 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 residing at the soldiers' home, the Idaho, Vol. 7-46 Opinion of the Court-Sullivan, J., Dissenting. mere fact of such residence will not, of itself, entitle him to the right to vote. Such residence, however, will not prevent the acquisition of such right. In McCrary on Elections, third edition, section 66, it is stated as follows: "It will be found, from an examination of the authorities, and from a full consideration of the subject, that the question whether or not a student at college is a bona fide resident of the place where the college is located must in each case depend upon the facts, etc. In a word, it is necessary, from a survey of all the facts, to determine whether while at college he is at home, his residence, or temporarily absent from it." It was laid down in Putnam v. Johnson, 10 Mass. 488, in 1813, that the question of residence was one of act and intention as applied to college students, and is still so held by the decided weight of authority; and college students, under section 5 of our constitution, are placed in the same category with inmates of our soldiers' home. And said section leaves it with that class of persons to retain the former home as a voting place, or permits them to adopt their present home for that purpose. To the same effect is Opinion of the Justices, 5 Met. (Mass.) 587. In Re Green (C. C.), 5 Fed. 145, it is held under the provisions in the constitution of the state of New York, in order to prove a residence in an election district something more must be shown than the fact of having lived in marine barracks located within the limits of such district in the capacity of a marine. Many of the cases hold that something more must be shown than mere residence at such home; but none of the cases cited, as I read them, hold that residence at such a home is a prohibition against the inmate gaining a voting residence while residing there, except Wolcott v. Holcomb and Lawrence v. Leidigh, supra. It is said in Silvey v. Lindsay: "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 of the circumstances of the case." The common-law rule disqualified those who were indigent or under the dominion of others, which rule embraces many of those disqualified under section 3, article 6, of our state constitution. (1 Blackstone's Com Opinion of the Court-Sullivan, J., Dissenting. mentaries, Cooley's ed., side p. 171.) Under the common-law rule no one became an elector merely by reason of his presence or absence at a certain place. It rquired something besides mere presence. It required other circumstances; it required intent; it required good faith. The residence must not be for temporary purposes. It must be one's actual home in the sense that he has no other home; no place to return to when away, but that one; abandonment of former home. Those are some of the facts to be shown to prove intent and good faith in establishing a residence, all of which are shown by the record in this case. The question of residence, as applied to electors, is one of act and intent, as laid down by a long line of decisions of courts and law-writers; and that rule has not been changed by the provisions of said section 5 of our constitution. In the case of People v. Cady, 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399, the question was presented whether a prisoner imprisoned in the Tombs city prison could gain a residence therein for voting purposes. The court held that he could not; that the Tombs was not a place of residence; it was not constructed or maintained for that purpose. The court says: "The domicile or home requisite as a qualification for voting purposes means a residence which the voter voluntarily chooses and has a right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention to change it." It has been suggested that the fifth section of article 6 of the constitution of Idaho was adopted from the constitution of New York, and that in adopting that provision we adopted the construction placed upon it in Silvey v. Lindsay, supra, by the court of last resort of that state. I have followed that rule as I read that decision, but, if I have not construed it according to its true intent and meaning, I would say, as this court has heretofore said, that the rule referred to is a general rule, but, where such decision places a construction thereon that is clearly erroneous, iniquitous, and unjust, this court is not bound by said rule, and ought not to be bound by such construction. Had the framers of our constitution intended, by the provisions of said section 5, to prohibit inmates admitted from other counties from voting in the county where the home is located, Opinion of the Court-Sullivan, J., Dissenting. why did not they use plain and simple language to that effect? I have no doubt that they would have done so had they intended to prohibit such persons from voting. The language used in said section 5 is too plain to be misunderstood, and, to construe it to prohibit such inmates as the forty referred to in this case from voting, the prohibition must be read into it, for it is not there as the section now stands. It was said by the supreme court of Oregon, in the case of Darragh v. Bird, 3 Or. 239, after quoting section 4, article 2, of the constitution of Oregon, which is as follows: "For the purpose of voting no person shall be deemed to have gained a residence by reason of his presence or absence while employed in the service of the United States or of this state," and section 5 of the same article: "The question of residence being one of act and intention, the framers of the constitution left the matter entirely to the discretion of the parties themselves." If the contention of appellants is right, the fifth section of the constitution of Oregon was a work of supererogation, as it positively prohibits soldiers quartered in that state from voting there; and section 4 of said article, so far as the pretended prohibition is concerned, contains the exact words of section 5 of the Idaho constitution. The people, by adopting that provision of the constitution, left the question of residence, where it was before, entirely to the discretion of the parties themselves—that question being one of act and intention; and said: "We will neither enlarge nor restrict the right of persons in this respect, but leave it with them to elect as to where they will claim their residence." The words, "for the purpose of voting," etc., clearly indicate that the matter was left with the elector himself to select the place of his residence. The section of our constitution under consideration prohibits anyone from questioning the right of the persons therein named from voting at the place from whence they were admitted to such home, but it does not prohibit them from changing their residence therefrom for voting purposes. The constitution of Idaho prescribes the qualifications of an elector, and authorizes the legislature to prescribe other qualifications if it desires to do so. And the language of Wolcott v. Holcomb, supra, is quoted |