John M. CORY บ. Drake D. SPENCER. 1. A member of the Western Branch A student may change his residence to the place where his studies are pursued, and he does so when he gives up and abandons his former residence. Lower Oxford Contested Election, 11 Phila. 641; Cooley, Const. Lim. 66; Lincoln v. Hapgood, 11 Mass. 350; Putnam v. Johnson, 10 Mass. 488; People ex rel. Budd v. Holden, 28 Cal. 136; Stewart v. Kyser, 105 Cal. 459, 39 Pac. 19; Sanders v. Getch of the National Home for Disabled Volunteer Soldiers, while maintained therein at public expense, is not deprived of the right to acquire a residence there for voting purposes by § 3, art. 5, of the Con-ell, 76 Me. 158, 49 Am. Rep. 606; Opinion of Justices, 5 Met. 587; Lankford v. Gebhart, 130 Mo. 637, 51 Am. St: Rep. 585, 32 S. W. stitution of Kansas. 2. The case of Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Rep. 631, 50 Pac. 600, overruled. 3. A contestee, who holds a certificate to the office regularly issued to him by the canvassing board, and who asks no affirmative relief, his answer going only to defeat the allegations made by the contestor, is not 1127. Each and every one of these men absolutely abandoned his old home before entering the home. This effected a change of residence. Ballinger v. Lantier, 15 Kan. 608; Amsrequired by Gen. Stat. 1901, § 2659, to plead baugh v. Exchange Bank, 33 Kan. 101, 5 that he is an elector of the county. The facts are stated in the opinion. Messrs. Dawes & Rutherford and L. H. Wulfekuhler, for plaintiff in error: At common law, if a man should leave his home and go to another part of the country for the purpose of attending school, and should return after an absence of three years, he would not have lost his residence at his old home. But if he absolutely abandoned his old home at the time of going away to school, with the intention of making the place of the school his settled place of abode, then the place of the school would be his place of residence. In order to change the common law the language of the Constitution changing it must be clear and certain. 6 Am. & Eng. Enc. Law, p. 931; McGin nis v. State, 9 Humph. 43, 49 Am. Dec. 697; Cadwallader v. Harris, 76 Ill. 370; Moyer v. Pennsylvania Slate Co. 71 Pa. 293. Our Constitution did not change the common law, but was and is simply declaratory thereof, the purpose no doubt being to prevent the legislature from ever changing the common law upon this subject. Re Goodman, 146 N. Y. 284, 40 N. E. 769; Darragh v. Bird, 3 Or. 229; Wood v. Fitz gerald, 3 Or. 568. Headnotes by GREENE, J. NOTE. As to residence of electors in soldiers' home, see also, in this series, Wolcott v. Holcomb, 23 L. R. A. 215, and note; also Powell V. Spackman, 54 L. R. A. 378. Pac. 384; Krietz v. Behrensmeyer, 125 Ill. 141, 8 Am. St. Rep. 349, 17 N. E. 232; Putv. Johnson, 10 Mass. 487; Berry v. Wilcox, 44 Neb. 82, 48 Am. St. Rep. 706, 62 N. W. 249. nam 444; Wolcott v. Holcomb, 97 Mich. 361, 23 L. R. A. 215, 56 N. W. 837; Powell Spackman, 7 Idaho, 692, 54 L. R. A. 378, 65 Pac. 503; Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Rep. 631, 50 Pac. 600. Greene, J., delivered the opinion of the court: At the general election of 1903 John M. candidates for the office of county treasurer Cory and Drake D. Spencer were opposing of Leavenworth county. On the face of the votes, and the canvassing board issued to returns Cory received a majority of the him a certificate of election. Spencer instituted this proceeding before a regularly or ganized contest court, which, upon a recount of the votes, excluded a certain number of votes cast by the members of the Western Branch of the National Home for Disabled Volunteer Soldiers, situated in Delclared Spencer to have received a majority aware township of said county, and deof the legal votes cast. Cory appealed to the district court, where a trial was had, and judgment rendered in favor of Spencer, and error is prosecuted to this court. The real question presented is the right of 785 members of the Western Branch of the National Home for Disabled Volunteer Soldiers, situated in Delaware township, | quiring a residence in another portion thereLeavenworth county, to vote at such elec- of is a right impliedly guaranteed to every tion. Of these votes 782 were cast for Cory citizen, in the lawful and rightful exercise and 23 for Spencer. Of the 762 votes cast of which he is protected by the Constitution for Cory the contest court sustained objec of the United States. What shall be deemed tions to, and excluded from the count, 741, a voting residence in any state is a subject on the ground that such members were not controlled exclusively by the state itself, residents of Delaware township in said coun- and is generally covered by some constituty. This was also the conclusion of the judge tional provision. What qualifications one of the district court in the trial of the shall possess before he may claim the right cause. The persons whose votes were thus to exercise this privilege in Kansas are preexcluded had not, prior to entering the scribed by § 1, art. 5, of our Constitution, home, established a residence in Delaware which reads: "Every white male person of township. They entered the home directly, twenty-one years and upwards belonging to some from different parts of this state, oth- either of the following classes-who shall ers from the state of Missouri, and possi- have resided in Kansas six months next prebly some from other states. It is contended ceding any election, and in the township or by the plaintiff in error that one possessing ward in which he offers to vote, at least thirthe qualifications of a legal voter at his ty days next preceding such election-shall place of residence, who abandons that resi- be deemed a qualified elector: . . ." The dence with the intention of never returning, admitted facts bring the members of the and immediately thereafter takes up his res- home who voted clearly within this proviidence in the home with the intention of sion of the Constitution, and their right so remaining there permanently, acquires the to vote would not have been questioned were right to vote there. We admit that we ap- it not for § 3, art. 5, of the Constitution, proach a discussion of this question with which reads: "For the purpose of voting, some hesitation, not because we entertain no person shall be deemed to have gained doubts about the correctness of the conclu- [or lost] a residence by reason of his pression we have reached, but because of a for- ence or absence while employed in the service mer decision of this court upon this pre- of the United States, nor while engaged in cise question, which we are satisfied is the navigation of the waters of this state, or wrong. Lawrence v. Leidigh, 58 Kan. 594, of the United States, or of the high seas, 62 Am. St. Rep. 631, 50 Pac. 600. As a nor while a student of any seminary of matter of judicial policy, it is ofttimes bet- learning, nor while kept at any almshouse ter for the highest tribunal of a state to or other asylum at public expense, nor while adhere to a construction once given to a confined in any public prison; and the legstatute, although erroneous, which by lapse islature may make provision for taking the of time has become the settled law of the votes of electors who may be absent from state, than to disturb business conditions, their townships or wards, in the volunteer and possibly vested rights, by reversing its military service of the United States, or the own judgment. Generally, when such mis- militia service of this state; but nothing takes grow into the laws, the people may be herein contained shall be deemed to allow relied on to make the proper corrections by any soldier, seaman, or marine in the regulegislative enactments, and the injuries con- lar Army or Navy of the United States the sequent upon such changes being made by right to vote. The logic of the contention of the court be thus avoided. This remedy, defendant in error is that by reason of this however, is not efficacious when mistakes section one entering the home is disqualified, have been made in the interpretation of a while kept there, from acquiring a residence constitutional provision. for voting purposes, and such was the decision of this court in Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Rep. 631, 50 Pac. 600. The conclusion there reached was that, by accepting the benefits of the home, he forfeited his citizen rights to acquire a voting residence at that place while he continued to enjoy its privileges. If the constitutional guaranty that any citizen of the United States may voluntarily change his residence for all purposes at will, and the right of suffrage conferred by § 1 of article 5 of our Constitution upon every male citizen of the United States who shall have resided in Kansas for six months next preceding any The following are the agreed facts upon which the question is presented: That all of said persons, both married and single, at the time they moved from their places of residence before coming to said home, abandoned their homes with the intention on their part of making said home their permanent abiding place; and that they intend ed and claimed said home as their place of residence and abode, and the place to which, when absent, they intended to return. The liberty of removing from and abandoning a residence once acquired in one portion of the United States and taking up and ac election, and in the township or ward in which he offers to vote at least thirty days next preceding such election, are to be taken from him by other provisions of the Constitution, such other provisions should be couched in language so clear as to admit of no other interpretation; so positive as to admit of no doubt. Courts should not indulge in doubtful interpretations which lead to depriving a citizen of rights plainly guaranteed to him by the .Constitution. residence while kept at any almshouse or other asylum at public expense, but that he shall not be deemed or adjudged to have acquired such residence by reason of his presence while or during the time he is so kept. This provision of the Constitution does not prevent one so kept from acquiring a voting residence if such be his purpose. He is as free to change his residence as if he were not a recipient of this bounty. to him shall any one have or be of an opinion that by reason of his presence, he has gained such residence." Thus written, the word "deemed" loses none of its force, nor is its meaning obscured or rendered less clear. This writing is expressive of, and keeps constantly and prominently in mind, the thought which was in the mind of the framers of that provision of the Constitution, namely, that the fact of residence in an almshouse or other asylum, and there being Conceding, therefore, for the purpose of kept at public expense, would not of itself this case that the home is an eleemosynary be sufficient evidence to establish a voting institution, and "almshouse or other asy-residence. This provision is not that, for lum," and maintained at public expense, the purpose of voting, no one can acquire a does the constitutional provision quoted, either in direct terms or by necessary implication, deprive persons, while maintained therein, from acquiring a voting residence? That part of the section applicable to this question reads: "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 kept at any almshouse or other asylum at public expense." The conclusion in Lawrence v. In support of his contention, the defendLeidigh, 58 Kan. 601, 62 Am. St. Rep. 631, ant in error strongly relies on the decision 50 Pac. 600, so far, at least, as the reason- in Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. ing of the court appears, was reached entire- 444, which is cited and quoted as a precedent ly through ascertaining the meaning of the in Lawrence v. Leidigh. We have carefully word "deemed," which was found to mean examined this case, and we are satisfied that ""to hold in belief, estimation, or opinion;' it is not an authority on this question. It 'to judge; adjudge; decide; sentence; con- does not decide the question presented in this demn;' 'to have or to be of an opinion.' Its case. It appears from the opinion that Silsynonyms are 'esteem' and 'suppose.' The vey offered to vote in the town of Bath, in learned chief justice then elucidated these which was situated the New York Soldiers' various definitions of this word as applied and Sailors' Home, of which he was a memto the provision under consideration: "For ber. His right to vote was challenged on the voting purposes, no person, while kept at ground that he was not a resident of the an asylum at public expense, shall be ad- town of Bath. Upon a statement made by judged or declared to have gained a resi- | him concerning his residence the board redence; nor of him shall the gaining of a fused to permit him to vote. The court, in residence be held in belief or estimation; stating the question (p. 56, 107 N. Y., and nor as to him shall anyone have or be of an p. 445, 13 N. E.), said: "The question subopinion that he has gained such residence. mitted to the court was: 'Did James SilThis is the meaning which the law, as well vey [the plaintiff] gain a residence in the as common usage, has affixed to the word town of Bath, so as to entitle him to vote 'deemed.'" The writer of that opinion, in at said town meeting, by reason of his presdiscussing the word "deemed," and elucidat-ence as an inmate of said institution? It ing its application, left out of his illustra- was agreed that, in case the question was tions, and overlooked in his reasoning, the language which expresses the intention of the framers of that section, and this omis sion necessarily led to a wrong conclusion. If these examples were necessary to make plain the meaning of this word as used in the sentence, they should have been written: "For voting purposes no person, while kept at an asylum at public expense, shall by reason of his presence, be adjudged or declared to have gained a residence; nor of him shall the gaining of a residence, by reason of his pres ence, be held in belief or estimation; nor as answered in the affirmative, judgment should be rendered in favor of plaintiff for $50 damages and costs." The statement by Silvey to the board, as quoted in the opinion, at page 58, 107 N. Y., and page 446, 13 N. E., was as follows: "I answer that I reside in the town of Bath, for the reason that I was admitted an inmate of the New York Soldiers' and Sailors' Home in this town by the authorities thereof in the year 1880, and have remained such inmate from that time to the present, with the intention at all times of making my residence in said insti tution, so long as I shall be permitted to settles the law as to the effect of such remain such inmate. At the time of my ad- presence, and as to which there had before mission to said institution I was an honor- been a difference of opinion, and declares that ably discharged soldier of the United States, it does not constitute a test of a right to and a resident and voter of the city of New vote, and is not to be so regarded. The perYork. I therefore answer that I am a resi- son offering to vote must find the requisite dent of the town of Bath. In becoming an qualifications elsewhere. We think, thereinmate of said institution, I intended to fore, the question submitted by the parties, change my residence from the city of New viz., 'Did James Silvey gain a residence in York to the Fifth Election District of said the town of Bath, so as to entitle him to town of Bath." The court then said: "It vote at said town meeting, by reason of his is obvious that his narration of an intention presence as an inmate of said institution?' to change his residence to Bath, and his as- should have been answered in the negative, sertion that he resided in Bath, can be ac- and it is so answered by this court." It is cepted only as conclusions from the circum- impossible, by any fair construction of any stances detailed in connection with them. of the language used in this opinion, to say They were his conclusions, and defendants, that it was within the mind of the court to in view of his whole statement, were not hold that a member of such home could not bound by them. They were bound by the acquire a voting residence. The only declafacts stated, and were required to say upon ration made by the court upon that subject those facts whether the plaintiff was qual- indicates clearly that such was not its unified in the necessary particular, and un- derstanding. It says that "the provision doubtedly they were to determine the ques- disqualifies no one;" that is, disqualifies tion at their peril." After quoting from the no one from acquiring a right to vote. Constitution, the court said: "And the de- It declares that the only effect of cision of the inspectors of election was that, the provision is to eliminate from the inin their opinion, the intending voter was inquiry the fact of presence, and that such Bath as a mere inmate of the institution, presence shall not constitute a test of the and for a temporary purpose, and not as a right to vote. "The person offering to vote resident of the voting district, or with in- must find the requisite qualifications elsetent to make the town a fixed or permanent where." place of residence; and so it would seem." On page 60, 107 N. Y., and page 446, 13 N. E., it was said: "His only intention in going to Bath was to be an inmate of the home, and it was only as such inmate that his residency was to be continued. He could not gain a residence by being an inmate, which means nothing more than his presence in the home; and, excluding that, there is nothing in the case to show that a residence in Bath had been acquired." The court decided that case on the particular facts involved, and in no way intimated that it was its opinion that under the provisions of the Constitution of New York, which is the same as ours, a voting residence could not be acquired by an inmate of a soldiers' home. The language used later in the opinion, while mere dictum, shows clearly what the court thought of the effect of the provision under discussion. On page 61, 107 N. Y., and page 446, 13 N. E., in speaking with reference to this particular provision, it said: "But the question in each case is still, as it was before the adoption of the Constitution, one of domicil or residence, to be decided upon all the circumstances of the The provision (art. 2, § 3) disqualifies no one, confers no right upon anyone. It simply eliminates from those circum- equally clear that it was the intention not stances the fact of presence in the institution named or included within its terms. It case. The case of Wolcott v. Holcomb, 97 Mich. 361, 23 L. R. A. 215, 56 N. W. 837, is relied upon as authority for the doctrine that an inmate of a soldiers' home cannot acquire a voting residence. This case is clearly not applicable under the provisions of our Constitution. The Michigan Constitution (art. 7, § 5) reads: "No elector shall be deemed to have gained or lost a residence by reason of his being employed in the service of the United States, or of this state; . nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison." The court (on p. 367, 97 Mich., p. 218, 23 L. R. A., and p. 839, 56 N. W.) said: "We are of the opinion that the terms 'by reason of' and 'while' were understood by the framers of the Constitution to have a different meaning. In the former case the intention would very largely, if not entirely, govern the question of domicil, while in the latter it would not. It was clearly the intention of the former provision to give the citizen the right, if he chose, to carry his residence with him to the place where he was employed in the service of the United States or of the state, and in the latter case it seems to give that right. What object otherwise could there have been in the use of these two terms?" The court there construed the | son shall not be deemed to be a voter by realanguage as operating differently upon the different persons enumerated in the section. Those persons employed in the service of the United States or of the state were held to be within the meaning of the term "by reason of," and of them it was said that it was the intention to give to such person the right to carry his residence with him to the place where he is employed; that the intention would very largely, if not entirely, govern the question of domicil. Concerning students of seminaries of learning and persons kept at almshouses and other asylums at public expense, it was held that they were not included in the term "by reason of," and therefore were deprived of the right to acquire a voting residence; that it seemed "equally clear that it was the intention not to give that right." Whether this distinction be right or wrong, it was the basis of the decision in that case. Our constitutional provisions cannot be thus read. The term "by reason of" is carried through the section, and applies alike to all persons therein enumerated. son of his presence while in such service, or while he remains in or is kept at such institutions. It is observable that the conclusions of the court found in the quotation are plainly and flatly contradictory. In the first part of the quotation it said that the Constitution "does not prohibit the inmates of the home or other asylums kept at public expense from changing their places of residence. They may do so;" and later said that the provision declares that, if the citizen votes while in such service or institution, he must do so at the place where he was entitled to vote at the time he entered such service or institution. In the opinion it is asked: "Now, having lived in other counties of the state, and having come into Ada county to reside at the home, to be there kept at public expense, and residing nowhere else in the county, how can we, for the purpose of voting, regard them as 'having gained a residence' in the county by reason of their presence at the home?" We answer that such fact could not be so found from the fact alone of their presence at the home. That is the one and only thing the provision prohibits. It does not prohibit them from gaining such residence, but declares that their presence at the home shall not be deemed the test in A decision of this question by the supreme court of Idaho, to which our attention is called, is Powell v. Spackman, 7 Idaho. 692, 54 L. R. A. 378, 65 Pac. 503, and deserves attention. The understanding of that court, and the interpretation placed determining the question. As expressed in upon the provision, as well as its reasons therefor, are found at page 701, 7 Idaho, page 381, 54 L. R. A., page 506, 65 Pac., as follows: "Now, the constitutional provision under consideration does not prohibit in mates of the home or other asylums kept at public expense from changing their places of residence. They may do so. But for the purpose of voting they shall not be deemed to have gained or lost a residence by reason of their presence in the institution while kept at public expense." To this statement we perfectly agree. In this connection, however, the court also said: "The Constitution does not disfranchise anyone. Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444, the fact of a voting residence must be found elsewhere; that is, it must be found from other facts. In determining whether a voter possesses the requisite qualifications under out Constitution, the intention, as expressed in Wolcott v. Holcomb, 97 Mich. 361, 23 L. R. A. 215, 56 N. W. 837, "would very largely, if not entirely, govern the question of domicil." The fact that the voter had abandoned his former residence with the intention of never returning thereto, and that he had entered the home with the intention of permanently remaining therein, are sufficient facts from which it might be found In the provision under consideration no one that he had established a voting residence is disqualified from voting. It is declared, at the home, provided he possessed the other however, in that provision, where the par- qualifications. It is worthy of notice that ties therein named shall vote. When it de- the court in that case, in construing the secclares that no one, by reason of presence or tion under consideration, carried the term absence in certain service, or at certain in- "by reason of" through the section, and apstitutions shall be regarded or deemed to plied it to all persons enumerated, and then have gained or lost a residence for the 'pur- cited the case of Wolcott v. Holcomb, 97 pose of voting,' it is only meant that who- Mich. 361, 23 L. R. A. 215, 56 N. W. 837, ever enters such service or such institution, as authority for its opinion that a memif he votes while in such service or institu- ber of the home cannot acquire a voting tion, must do so at the place where he was residence, while that case distinctly holds entitled to vote at the time he entered such that all persons to whom the term “by reaservice or such institution." The Idaho Con- son of" is applicable may carry his resistitution makes no such declaration. The dence with him. The reasons assigned by only declaration it makes is that such per- the Idaho court for the provision are that |