Bourland v. Hildreth

26 Cal. 161

• Court: California Supreme Court
• Decided: October 15, 1864
• Status: Published

Opinions

By the Court, Shafter, J.

At its session in 1863 the Legislature passed an Act, requiring the Adjutant-G-eneral of this State to make out a list, on or before the 15th day of July, 1863, of the names of all electors, resident of the State of California, who should then be in the military service of the United States, and to deliver the list to the Secretary of State on or before the said day.

The Act further requires the Secretary of State to classify and arrange the list so returned to him, and to make therefrom separate lists of the electors belonging to each regiment, battalion, squadron, and battery, from this State, which shall then be in the service of the United States; and on or before the 20th day of July, 1863, to transmit to the commanding officer of each regiment, battalion, squadron, and battery, a list of the electors belonging thereto, specifying the name, residence and rank of each elector; and, also, “the County, Congressional, Judicial, Senatorial and Assembly Districts, for officers of which the electors respectively should be entitled to vote.”

The Act further provides that on the day fixed by law for holding the State election in the year 1863, “ a ballot box, or other suitable receptacle for votes shall be opened, and votes received from the electors, whose names are upon said list, at each place where a regiment, or battalion, squadron, or battery of California soldiers, in the service of the United States, may be on that day ; at which time and place the electors, whose names are upon said list, belonging to such regiment, detachment, squadron, or battery, shall be entitled to vote for all officers, for which, by reason of their residence in the several counties of this State, they are authorized to vote at elections in the several counties and districts in which they reside ; and the vote so given, at such time and place, shall be considered, taken, and held to have been given by them in the respective counties of which they are residents.”

The operation of the Act is limited to a single year—1863.

It appears from the record that under this Act two hundred and fifteen soldiers, having their legal residence in the county of Tuolumne, voted at the general election in September, 1863, for county officers of that county, and for Assessors in the different districts therein. It further appears that ninety of the two hundred and fifteen votes were given in camps and stations without the limits of the State, and one hundred and twenty-five within its limits, but outside the County of Tuolumne ; and it also appears from the record that, if all of the two hundred and fifteen votes are to be excluded from the canvass, the respondents have a majority of votes in their favor for the offices for which they were respectively candidates, with the exception of the respondent Weinbeer.

The reason assigned on behalf of the respondents for excluding the two hundred and fifteen votes named is the alleged unconstitutionality of the Act of 1863.

Section one, Article II of the Constitution is as follows:

“ Sectioh 1. Every white male citizen of the United States, and every white male citizen of Mexico who shall have elected to become a citizen of the United States under the treaty of peace exchanged and ratified at Queretaro on the 30th day of May, 1848, of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized' by law; provided, that nothing herein contained shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage Indians or the descendants of Indians, in such special cases as such a proportion of the legislative body shall deem just and proper.”

In this section the qualifications are stated upon which the right of suffrage is made to depend, viz: citizenship, particular sex, color, age, residence. The reason why the right to vote was made by the framers of the Constitution to depend upon these conditions are apparent. Citizenship was required with á view to keep the Government in the hands of those who owed allegiance to it. Color was established as a test in obedience to a prevailing opinion. Discrimination was made between the sexes under a conviction that it was required by the best interests of both. The age of majority at common law was made requisite in' order to secure to the State self-reliance and capacity in those appointed to govern. Residence in the State for six months preceding any given election was required so that citizens, even, should not deal with public questions through the ballot box until they at least had had the benefit of an opportunity to learn the public wants, of concerting measures the best calculated to provide for them, and of selecting proper men to carry those measures into effect; and residence in given localities within the State for thirty days next preceding any election appointed by law was prescribed so that the voter, in the interval, might attain to some just understanding of local interests before charging himself with the responsibility of political action concerning them.

It is not claimed for the respondents that the Act of 1863 is unconstitutional for the reason that it authorizes voting, free of these tests, or free of any one of them ; and it is obvious that the Act of 1863 silently assumes them all, except the last, and as to that—the qualification of residence—it is put expressly in the Act as a condition upon which the polling of the military vote is to depend. The point of contest relates to a matter with which the qualifications of voters have, in strictness, nothing to do. It is insisted for the respondents that the Constitution fixes the place or places at which the duly qualified electors are to perform the act of voting. This proposition is denied by the appellants, they insisting that the matter is left entirely to the control of the Legislature.

As to the power and the duty of the judicial department of the Government to set aside a legislative Act if found to be in conflict with the Constitution, there can be no question; and the considerations by which Courts are to be guided in the exercise of that power are well settled. The constitutional question, now to be passed upon, was determined, in effect, by the Constitution itself at the moment the Act of 1863 received the signature of the Executive, and in that point of view our distinctive service is one of inquiry rather than of judgment, and in the conduct of the inquiry we can do no more than interrogate the Constitution itself and report its responses when we shall have ascertained them. Though the judiciary, like other departments of the Government, is bound to use its powers so as best to promote the public good and fulfil the will of the people, still we can know nothing of that will, except as it has found expression in the Constitution; nor can we, under pretext of promoting the public welfare, usurp powers with which the people have never invested us.

The great object, with reference to which all the rules and maxims that govern the interpretation of statutes, Constitutions, and other written instruments have been framed, is to discern the true intent of their authors, and when that intent x has been ascertained, it becomes the duty of the Court to give effect to it, whatever may be the convictions of the Judges as to its wisdom, expediency or policy.

One of the cardinal rules of interpretation referred to is, that in the absence of ambiguity no exposition shall be made which is opposed to the express words of the instrument. “ Speech is the index of the mind, and that exposition which corrupts the text is accursed.” (Broom, 396.) When an Act is conceived in clear and precise terms—when the sense is clear and manifest and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents to the mind. To go elsewhere in search of conjecture in order to restrain or limit the instrument, would be but to elude its force. If Courts were at liberty to search for foreign reasons to maintain what was not to be found in any just sense of the words used, then a statute or Constitution might be used for the accomplishment of a purpose which it was .the intention of the lawgiver to discountenance and withstand. (Smith’s Com. 688; 7 Mass. 524.) A writer on American law says : “When the meaning is satisfactorily perceived and understood, there is no room for a liberal or strict, or large or narrow, or other construction, than according to the meaning.” (6 Dane’s Ab. 600.)

The Supreme Court of the United States has held that where a law is plain and unambiguous, whether it be expressed in general or limited terms, its authors" must be intended to mean what they have plainly expressed, and consequently no room is left for construction. (7 Cranch. 52.) Mr. Dwarris lays down the rule thus: “ Though the Judges are to explore the intentions of the Legislature, yet the construction to be put upon an Act of Parliament must be such as is warranted by, or at least not repugnant to, the words of the Act. Courts must not, in order to give effect to what they may suppose to be the intention of the Legislature, put upon the provisions of a statute a construction not supported by the words.”

It was held in Rex v. Ramsgate, 6 B. & C. 712, “that where the Legislature has used words of a plain and definite import, it would be very dangerous to put upon them a construction which would amount to holding that the Legislature did not mean what it has expressed. The fittest course in all cases where the intention of the Legislature is brought into question is to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the Act of Parliament.” Mr. Dwarris, in commenting upon Rex v. Inhabitants of Great Bentley, 10 B. & C. 520, remarks that “The most enlightened and experienced Judges have for some time lamented the too frequent departure from the plain and obvious meaning of the words of the Act of Parliament by which a case is governed, and themselves hold it much the safer course to adhere to the words of a statute construed according to their own import, than to enter into inquiry as to the supposed intention of the parties who framed the Act. Courts are not to presume the intentions of the lawmaker, but to collect them from the words; and they have nothing to do with the policy of the law. This is the true sense in which it is so often impressively repeated that the Judges are not to be encouraged to direct their conduct ‘by the crooked chord of discretion, but by the golden metwand of the law;’ i. e., to collect the sense of the lawmaker by a sound interpretation of the language, according to reason.” (Dwarris on Stats. 702, 703.)

Mr. Justice Blackstone has remarked that “ words are generally to be understood in their usual and most known signification, not so much regarding the proprieties of grammar as their general and popular use; that if words happen to be dubious their meaning may be established by the context or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject matter with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because if a literal meaning would involve a manifest absurdity it ought not to be adopted ; and that the reason or spirit of the statute, or the causes that led to its enactment, are often the best exponents of the words, and limit their application. (1 B. Com. 59, 60; Sto. Com. Sec. 400.)

It appears from the - foregoing citations that laws are to be construed according to the intention.of their authors; that the words used are to be first resorted to as furnishing the best index of intention ; that if the meaning of the words in their popular import is clear, and is in harmony with the context and the subject matter, and comports with the causes that induced the enactment, then the words themselves determine the intention; that the words so illustrated should be adhered to by Courts, however unwelcome the results may be to the Judges or others, or however opposed they may be to mere personal views of public policy. In the language of the Supreme Court of the United States (Van Howes' Lessees v. Dorrance, 2 Dallas, 309,) : “ The Constitution of a State is stable and permanent—not to be worked upon by the temper of the times, nor to rise and fall with the tide of events. Hot-withstanding the competition of opposing interests and the violence of contending parties, it remains firm and immovable as a mountain amid the strife of storms, or as a rock in the ocean amid the raging waves.” Chancellor Kent has justly said : “ From the mass of powers necessarily veste'd in the Legislature, and the active and sovereign nature of those powers, from the numerous bodies of which the Legislature.is composed, the popular sympathies which it excites and its immediate dependence on the people by means of frequent periodical elections, it follows that the legislative department of the Government will have a decided superiority of influence. It is constantly acting upon all the great interests of society and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. It is only by the free exercise of its powers that Courts of justice are enabled to repel assaults and to protect every part of the Government and every member of the community from undue and destructive innovations upon their chartered rights.”

It is, however, to be borne in mind that the Constitution is not a grant of power or an enabling Act to the Legislature. It is a limitation on the general powers of a legislative character, and restrains only so far as the restriction appears either by express terms or by necessary implication, and the delicate office of declaring an Act of the Legislature unconstitutional and void should never be exercised unless there be a clear repugnancy between the statute and the organic law. These principles were repeatedly asserted by the late Supreme Court, and have never been questioned by us. In a doubtful case the benefit of the doubt is to be given to the Legislature ; but it is to be remembered that the doubt to which this rule of construction refers is a reasonable doubt as distinguished from vague conjecture or misgiving. The point is well presented by Mr. Chief Justice Buchanan in The Regents, etc. v. Williams, 9 Gill. & J. 383: “It has been said that a legislative Act should not be pronounced unconstitutional or invalid in a doubtful case, nor should it where the doubt is tona fide and well founded and not the result of disinclination to deny the authority of the Legislature, which all must feel and to which none should yield in violation of a solemn duty. Where a Judge is satisfied, upon full consideration, that an Act is contrary to the Constitution, the supreme law which he is bound to obey and which must prevail over any Act that comes in conflict, and cannot stand with it, he has no choice, and all that is left for him is honestly and fearlessly to do his .duty, from the faithful discharge of which, however unpleasant the task, no upright Judge can shrink if he will.”

We have called attention to the foregoing rules of interpretation and construction at the outset, for the reason that they suggest the true methods by which the principal question raised by the record is to be investigated, and determine also the criteria of judgment with reference to which it should be decided. And now these general matters having been disposed of, we shall proceed to an examination of the case.

That part of Section 1, Article II, having the most important bearing on the question, is the following: “ A citizen, etc., * * * who shall have been a resident of the State six months next preceding the election, and [of] the county or district in which he claims Ms vote thirty days, shall be entitled to vote at all elections,” etc.

The words “claims his vote” are not used to define the word “ residence.” That word required no definition, for when the Constitution was adopted its meaning had been settled for ages. Nor are the words used for the purpose of indicating to the citizen in advance that he must reside in one county or " district rather than in another in order that he may become an elector, for it is obvious that every citizen is left at liberty to reside in the county or district of his choice. Nor are the words used for the purpose of stating an electoral qualification either distinct from or anywise affecting those previously enumerated, for it -would be absurd to suppose that the Constitution intended that a citizen should make a premature, and therefore false claim to “ his vote,” in order to qualify himself to make a valid one. What, then, is the meaning of the words “ claims his vote,” in the relation in which they stand ? However clear our own convictions may be as to their real meaning, and however free from difficulty we may consider the question to be, if both the attention and the understanding are confined to the essential conditions of judgment, still, the acknowledged importance of the case, and the just consideration due from one department of the Government to another, call for a full exposition of the grounds upon which those convictions are based.

We have no doubt that the Convention by which the Constitution was framed, was unanimous upon the question of their meaning. We see no ambiguity or want of precision in the words, and as the Journals of the Convention show that almost every provision and passage in the Constitution became the subject of discussion and controversy, but that the words in question escaped both, we take it for granted that the Convention was not only unanimous as to the purpose, and as to the merit of the purpose for which the words were used, but also considered that the common intent found, in the wTords used, apt and plenary expression. We have every reason to believe, and do believe, that at the time the Constitution was adopted, and for at least twelve years thereafter, a like unanimity prevailed among the people; and the whole course and the whole history of our legislation, during the interval named, demonstrate that the unanimity of the people extended to and controlled the public councils. Had the words in question been ambiguous and indecisive in fact, it would have been detected; had it been detected the discovery would have been turned to account, or it is highly probable that some one at least, in the Legislature or out of it, would have turned the discovery to account, by securing or attempting to secure the legislative sanction to a system under which, if all the migratory vote, both within and without the State, was not polled at every current election, it would not have been for want of opportunity afforded. This entire unanimity of popular and legislative opinion, extending alike to both the points named, is all the more suggestive, when we consider the earnestness and virulence of party contests during the period when that unanimity subsided.

The passage calling for a six months residence in the State and of thirty days in the county or district in which the elector claims his vote, contains six distinct conceptions. The first is of a fact—residence; the second is of place, represented by the words “ county or districtthe third is of an event, represented by the words “ claims his votethe fourth is of a relation, showing that the fact of residence is to obtain in a county or district; the fifth is of relation also, to the effect that the event of an elector’s “ claiming his vote ” is to transpire in a county or district also; and the sixth is of the result of the last two conceptions when combined—that is to say, of the sum total of the meaning of the entire passage. The amount of it is this : The county or district “ in which ” the fact (residence) is gained, is the identical county or the identical district in which the event of claiming a vote is to transpire, and, e converso, the event is to transpire in the county or district of the residence. Neither the fact nor the event can, in the nature of things, occur irrespective of place, and the fact is to be gained and the event is to be enacted in the same place, by express constitutional appointment. The event referred to is a transaction to which the Government is a party, and is to transpire after a residence has been gained. The Government, through its officers, meets the elector in his proper person, and receives from him a “ ballot,” by allowing him to deposit it in a “ ballot box,” if he then and there offers to do so (Constitution, Sec. 6, Art. II; Sec. 2, Art. X.) The correctness of the construction, and of our conclusion as based upon it, may be verified by any one who will consent to look steadily at the passage hereinbefore quoted, and mark his own intuitions. To be known it must be seen ; and if it cannot be seen, it never can be known. Though the point—■ the facts being given—and they are all apparent on inspection—like the truth of a mathematical axiom, does not admit of direct reasoning, still it may be illustrated. The twenty-fourth section of our Statute of Conveyances contains a provision that “ every conveyance of real estate * * * to operate as notice to third persons shall be recorded in the office of the Recorder of the county in which such real estate is situated.’’ By section eighteen of the Practice Act certain actions “ shall be tried in the county in which the subject of the action or some part thereof is situated.” By section twenty certain actions “ shall be tried in the county in which the defendant resides.” Each one of these passages contains a statement of a fact and of an event, and in each of them the place of the fact and the place of the event are the same, beyond controversy.

Again, it is provided in the second section of the First Article of the Constitution of the United States as follows: “ Ho person shall be a Representative who shall not have attained the age of twenty-five years and been seven years a citizen of the United States, and who shall not when elected be an inhabitant of that State in which he shall be chosen.” This provision involves the following elements: 1st, personal qualifications, of which the fact of inhabitancy is one; 2d, place, a State; 3d, an event or transaction, viz: the choice of a person by the people of a State to represent them in the House of Representatives. A State is the place of the inhabitancy, a State is the place of the event, and both the fact and the event are to transpire in the same State. Should the question be asked where is the act of choosing a Representative to Congress to be performed ? the very text of the Constitution would answer—in the State of which he is an inhabitant. Without refining upon it, that is what we conceive to be “the plain and obvious meaning of the words used.”

The event in hand is a transaction as distinguished from a mere status, or being, or rest, mental purpose present or ulterior, or opinion, or conviction, on any point of mere personal right. The transaction is overt. A duly qualified elector is an actor in it. He causes it, brings it about by open conduct on his part, instead of suffering or merely enduring it. He does something, and the thing which he does is represented by the words, “ claims his vote.” To every practical intent the elector is a part of the event, and he accomplishes it by means of a visible instrument which he handles, and which is itself a part of the event. The event is to transpire in the county or district “in which” the elector has his residence for thirty days previous to its occurrence, to the exclusion of the balance of space whether within the State or outside of it. The analysis of the disputed passage upon which our conclusion is based is not after the manner of the grammarians, but is an analysis of the governing conceptions that enter into the passage. The argument does not proceed upon the “proprieties of grammar,” but upon ideas in their just relations.

The foregoing is a general exhibition of the grounds that have forced the conclusion to which our minds have been brought, and if the case was not one of extraordinary concern all further discussion would be forborne.

Subsequently to the judgment rendered by this Court on the first hearing of the case, the Legislature, assuming, and believing doubtless, that the judgment was erroneous, reenacted the Act of 1863; and furthermore, the Supreme Court of Iowa has recently given the question involved a different resolution. All of which appearing, it is due to the question, to the law, and to all who are interested in its just administration, that the matter should be more fully discussed; and in doing so we shall proceed as in the presence of the law, and as in the presence of its great ministry both living and dead.

It will be observed 'that our conclusion is based, in the main, upon the analysis given of the passage in dispute. To this method of investigation we apprehend no objection can be taken, for it is the very method which the authorities cited require us to pursue. When the question raised is one of construction, the controlling grounds of reasoning are not to be sought for primarily in preambles nor in titles or headings; nor in the proprieties of grammar, nor in the assumption that propositions of compact or enactment are always simple and never compound ; nor in the assumption that they are always direct and never incidental; nor in the assumption that the lawgiver never unites two distinct, but related elements in one general provision; nor in the assumption that if the lawmaker had intended a given thing, that he would have expressed his intention in some mode which the mind of the reasoner can conceive of as being more felicitous than the particular language adopted. On a question of constitutional construction, if the main and principal purpose were to develop a doubt as to the meaning, this method of a priori reasoning from the real or supposed rules of correct composition would undoubtedly be apposite to the end proposed, and^would answer also as a shelter to the doubt which an observance of them had excited. But when a question of the character named is presented, the primary inquiry is not after a doubt, but after the true intent and meaning of the instrument or passage to be interpreted; and the intendment, to start with, is that the framers of the instrument have not failed to express their intentions in intelligible language; .and it is only after the words and the context and the subject matter have all been reasonably exhausted, that the question of “ doubt ” can properly be considered, or even approached. And it may be here added, that there is not one of the supposed rules of correct composition referred to, that finds any practical recognition in the Constitution or in the general literature of the language. Compound propositions occur in the Constitution much more frequently than simple ones—incidental propositions are found on every page—and instances in which distinct but related provisions are found in the same section are not at all unfrequeut; and our own reports aiford multiplied proofs that the distinction between clearness of expression on the one hand, and mere infelicity of expression on the other—whether real or supposed—has never yet been lost sight of.

There is really but one question presented, in our judgment, and that relates to the correctness of the analysis which we have given of the disputed passage. That analysis, it will be remembered, gives as results, 1st. A fact—“ residence;” 2d. Place—“ county or district3d. An event, as distinguished from the fact of residence—“ claims his vote;” 4th. A relation—residence in a county or district; 5th. A relation—the event of claiming a vote in a county or district; 6th. A relation also—it being one of absolute identity between the county or district of the “ residence,” and the county or district of the “ event” named. As we have already remarked, the question of the correctness of this analysis is primarily to be determined by inspection, and we may add, in utter forgetfulness, for the time being, of the consequences to which" it may lead. The exact question at this point then is, not whether the Constitution fixes the place at which the act of voting is to be performed, but whether the passage named at once admits and calls for the analysis given. It is insisted that the analysis is a mistaken one, and that the passage, when taken to pieces, shows only the following results : 1st. Residence; 2d. Place— county or district; 3d. A relation—“residence” in the “place” named. This analysis denies three of the results of our own— that is, it denies that the words “he claims his vote” sets forth an event or transaction distinct from the fact or status of residence, and that event or transaction being expunged, the fifth and sixth elements of the analysis go with it, of course, for they are directly based upon it, or grow out of it.

The passage “he claims his vote” contains a personal pronoun, a transitive verb, an adjective pronoun and a noun; and the argument in favor of the shorter analysis, apparently admitting that it will not do to strike out a passage made up of words of the grades named, holds that they were inserted in the text for the purpose only of defining or helping out in some way the qualification of “residence.” We have carefully considered this view, and to our minds the words “ he claims his vote” have in strictness as little to do with residence, considered merely as a qualification, as they have with the qualification of sex, age, color or citizenship. ' In the first place they have nothing to do with residence, considered as a qualification, on first inspection; and in the second place they cannot bear upon it by possibility except in one of three modes. First—by defining the meaning of the term “ residence,” and that they do not attempt; second—by limiting the duration of the residence, and that they do not attempt; or, third—by dictating in advance the particular county or district in which the citizen must reside in order to qualify himself to vote, and of that there can be no pretense; and it follows, unless there is some other mode than these in which the two things can be brought into the relation of description and subject matter described, that the words cannot be put to the use named. Take the parallelism already put, with slight verbal changes, to make the resemblance the more perfect. “A duly qualified grantee, who shall have recorded his deed in the county in which the land is located, shall be entitled to priority,” etc. Here is, first—a fact, land; second—place, a county; third—an event which may or may not occur in the election of the duly qualified grantee, the registration of his deed ; fourth—a relation, land in a county; fifth—a relation, the event of registration occurring in a county; sixth—a relation, that of absolute identity between the county of the fact and the county of the event; and to this a seventh element may be added—the advantage to result to the grantee who has registered his deed. Suppose it should be asserted that this analysis is false—that the words “ who shall have recorded his deed” do not set forth a transaction or event as distinct from the fact of land or the location of land in a county, and that the only purpose of the passage was to define the essential legal nature of “ land,” or to determine in advance in what county or counties “land” must lie so that a deed of it shall be entitled to the benefit of the legal effect stated, or that there was a reasonable doubt as to what the passage meant—we should have exactly the same question as the one now presented; and should we doubt here, we might, and probably would, be called upon before a great while to doubt in the other case also. On these grounds we hold that the passage under discussion is properly resolvable into the six elements stated, instead of the three contained in the shorter analysis, and that result being given, all further controversy is precluded.

It may aid in the further illustration of this matter, however, if we refer to the provision in the Constitution of Ohio. It is as follows: “'Every white male citizen of the United States, of the age of twenty-one years,1 who shall have been a resident of the State one year next preceding the election, and of the county, townshijo or ward in which he resides such time as may be provided by law, shall have the qualification of an elector, and shall be entitled to vote at all elections.” An analysis of this provision shows as results: 1st, residence— a fact; 2d, place—county, township, ward; 3d, a relation— residence in a county, etc., for such time as the Legislature shall prescribe. Here there is no event or transaction as distinct from the fact of residence, and the decision of the Supreme Court of Ohio that this provision does not touch the question of the place where the act of voting is to be performed, is, in our judgment, entirely correct. The shorter analysis given of the kindred provision of our own Constitution, assumes that the two provisions are identical—that is, that the words “in which he resides” and the words “in which he claims his vote,” are the equivalents of each other. In view of the rule that “ Courts are to collect the intentions of the lawgiver from the words used,” we cannot adopt that conclusion. The one phrase sets forth a mere status of the elector, the other séts forth an act performed or to be performed by him after the status has been attained to. The words “he claims his vote” are in the one passage, and neither they nor anything like them is found in the other.

But another view still has been urged upon us, which, in effect, admits the analysis we have given to be correct, but insists that the event or transaction which constitutes its third result, does not involve the act of voting, or the act of “ claiming a vote,” but of claiming the abstract right of suffrage, or of claiming the “consequences or effect of a vote” upon the affairs of the county or district of the voter’s residence, or a claim by a voter that his vote “shall be counted” in such county or district.

It will be observed that this view assumes that the object of the transitive verb “ claims” is something distinct from “ residence” and intraterritorial to the county or district of the residence, and raises the question simply as to whether that object is .the “ vote” of the elector offered or deposited according to the constitutional method, or something that precedes the act of voting and exists independently of it, or something that follows a performance of the act of voting.

First—Are the just calls of the constitutional proviso fairly met by a naked claim or assertion or announcement on the part of a qualified elector that he is one, no matter whether the "assertion be made abroad or at his civil home—on election day or otherwise—excluding also even any present wish to exercise the right claimed ?

In the first place it is to be observed that the language of the passage quoted is not “ claims the right to vote,” but “ claims his voteand in the second place if the passage as written should be thus rendered, though it would not be made absolutely meaningless thereby, still it would mean nothing of the slightest practical value. The rule of interpretation is, that “it is never to be presumed that the makers of a law had nothing in view in making it;” that a “ statute [or Constitution] should never be so construed as to render it a nullity, or quite elude its force, but such a construction ought to be put upon it that it shall have its full force and effect, and not be made vain and illusory.” (Smith Com. 671.) Now a claim involving the mere right to vote as its distinctive and sole subject matter, can be of no civil or political moment, and therefore it cannot be regarded as the real point of constitutional concern. Further, the right of suffrage is personal; it follows the person, and cannot, to a legal or any other intent, have a county or district or any other situs in itself considered. A claim so limited would merely manifest the faith or opinion of the claimant on a point of personal quality, and would be as valueless for public edification and use as his expressed opinion would be on the point of his personal righteousness.

Second—Is the interterritorial entity forming the object of the verb “ claims,” the “effect” or the “consequences” of a vote in the localities named, to the utter exclusion therefrom of all that enters into and forms a part of the constitutional process of personal voting, by a ballot dejiosited in a ballot box, some Government functionary being present and co-operating ?

We begin by calling attention to the meaning of the word “ vote,” when used as a noun; and first to its customary meaning, and second to its meaning in the phrase “ claims his vote,” as it stands in the Constitution. The word, as commonly used, has three meanings:

1st—“ Ballot.,” which in itself considered is nothing but a written note or communication from an elector addressed to the Government, expressing the choice of the elector, btit which has not as yet been delivered.

2d—The expression of wish, or choice, or preference, to the exclusion of the means by which or the method through which that result was accomplished. “ The popular vote is but the expression of the popular will.” In this passage, the word means, choice expressed or made known, without involving any particular means which the term itself distinguishes and characterizes. The result may have been reached through a ballot, or by viva voce, or otherwise.

3d—The third and last definition of the noun “vote” is expression of choice by or through a ballot, or by outcry or any other particular means by which the choice of the voter may be lawfully made known or communicated to others in the given instance. The word here involves both the previous meanings, and brings them into the relation of means and end.

These definitions, as will be at once seen, demonstrate the falsity of the adverse proposition in hand, by showing that the very assumption of fact upon which it is built up,has no foundation, and can have none by possibility, so long as the three definitions stated continue at once to fill and exhaust the meaning of the noun “ vote.” The allegation of fact involved in the adverse proposition is that in one of its known and established uses the word “yote” means the “ effect” produced by it in public affairs in the course of a suffrage transaction—that is, it ascribes a fourth meaning to the word “ vote,” all of whose possible meanings, as now understood, are exhausted by the three definitions which we have given.

There is undoubtedly an “ effect ” that follows the lawful expression or publication of an elector’s choice, and of which that publication is the sole and manifest cause, as distinguished from the antecedents, or causes of itself; and that effect is the final impression made through or by the force of a “ vote,” as last defined, upon public affairs; but as loss of reputation is not a part of the libel, nor of the publication which causes the loss, so the effect of which we are now speaking is not a part of the publication in question; that is, it is not within the largest and most comprehensive definition of the word “ vote.”

There is only one way in which this last general result can be contravened, and that is by showing that the word “vote” when used as a noun has a fourth meaning distinct from the three named, and identical, too, with the additional meaning ascribed to it. It is further to be noticed that the question of whether it has any such fourth meaning is, in one sense, a question of fact, and being such it is one upon which “ general principles” cannot be brought to bear; and it is further to be specially noted that there is no source from which any reliable information upon the subject can be derived, except the dictionaries of the language and its literature, or if there is any other source it must be found in the mere provincial-isms of 1849.

But the Constitution itself decides the question and to our entire conviction. In the Constitution the word “vote” and its derivatives are used twenty-one times. The word is used five times as a verb; the participle “voting”, is used three times, and “vote” or “votes” appears twice as “ballot” or “ballots,” as defined in our first definition, and eleven times as a noun used in the sense of the third or most comprehensive definition; and we rely upon this circumstance as a fact of manifest importance; and over and beyond this we cannot fail to notice the fact that the word occurs twice in section one, Article II, once in addition to the disputed instance, and in the proviso to that section: “ Provided that nothing herein contained shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage Indians,” etc. As the word is used in this - proviso it imports choice manifested by or through the use of a constitutional mean. But there is another fact still more impressive. In the second section of the Tenth Article the word is used not only in the sense of our third definition, but the whole of the conditions involved in that meaning are circumstantially detailed. “ The Constitution that may have been agreed upon by such Convention shall be submitted to the people at a special election to be provided for by law for their ratification or rejection. JEach voter shall express his opinion by depositing in the ballot box a ticket whereon shall be written or printed the loords ‘for the new Constitution,’ or ‘against the new Constitution.’ ” If there was ever a question of interpretation which the rule of noseitur a sociis should dominate, awing all dissent into silence; if there was ever an instance in which the meaning of a word should be determined by the concurrent voice of all the dictionaries of the tongue in which the word is found—it is the question of definition with which we are dealing ; and as the word appears in the Constitution eleven .times as a noun, and throughout all the varied relations in which it stands, with the exception of two instances in which it means “ballot,” uniformly bears the meaning assigned it by the third definition ; therefore the rule of common reason, as'well as the rule of law, requires that that meaning should be given to the word at the point and in the place where its meaning is disputed ; nor would the result be varied if the force of the word as disputed should within its own special relations be doubtful or ambiguous, for it is in such cases only that there is any occasion to resort to the context or to make search after companionship. The particular maxim, noseitur a sociis, is applicable only in cases of doubt. Its distinctive office is to dispel doubt, and all its value consists in its power to dispel it; and wherever a doubt has been dispelled by means of it, a certainty is revealed. The meaning of the word “vote” in the disputed instance is not doubtful in our judgment when we consent to read it in the light emanating from itself in its own immediate connection, and certainly riot when to the inherent force which it puts forth there is added the force imparted by traditions that became historical, and the further force imparted by the fact "of habits of thought that became chronic, and habits of action that became muscular almost, both in England and this country, ages before 1849. But when from this advanced standpoint the fact of the companionship, and the multiplied coincidences hereinbefore referred to, have been duly weighed, and when it has been considered also that there is no question of “absurdity” or of “inconvenience” 'even involved, then and in that event, if any doubt lingers, it can, as we apprehend, find neither justification nor apology in any rule of interpretation recognized by law nor under any rule commending itself to the reason. On these grounds, therefore, we hold that the meaning of the word “vote” in the disputed instance, involves the act, and the activities of voting, as distinguished from its mere results. Treating the question as a question of fact, resolvable on the principles of circumstantial evidence—to which predicament it bears a manifest resemblance—it may be said, and truly said, that public justice has, in myriads of instances, claimed its extremest dues on evidence far less convincing.

Before leaving this subject it becomes necessary to consider 1 the other form of words that has been suggested as setting forth the object on which the action of the transitive verb “ claims ” constitutionally terminates. The form is as follows: “in which he claims his vote shall be counted.”

First—The words “ shall be counted ” are not in the Constitution as framed by the Convention and approved by the people. By the insertioriof the words the Constitution would be amended—and perhaps improved, and perhaps seriously damaged in the large and in the long run—but in no sense would an insertion of them be an interpretation of the passage as it now reads. Phrases supposed or alleged to be of equivalent import may be advanced for the purposes of argument or illustration, but it always is to be remembered that the phrase so advanced cannot be regarded as a test by which the meaning of a word or passage occurring in a written document is to be interpreted.

Second—But the words “shall be counted” suggest nothing differing in any particular from the fallacious “ consequence ” or the equally fallacious “ effect ” already discarded. But should it be said that the purpose or object of “ claim” in the passage suggested is the mere manual process of counting, our reply is that a mere official counting of votes conducted by public functionaries is not a “vote,” nor is it any part of a “vote,” and much less is it any part of “his vote.” There is not a man in the State who can say that he ever cast “his vote” at any “election” on the question of the process, as such; and as to the results of the process, considered as a distinct subject matter of “ claim,” there is many a disappointed elector who can testify that he has known of election results arrived at by counting that were never any part of the object “claimed” by “ his vote.”

The discussion upon the meaning of the word “vote,” in the disputed instance, as a detached point, terminates here. Its meaning is fixed, and if the word is to be struck out, there is only one thing that can properly be put in its stead—and that is the third definition in full detail, the entire accuracy of which the Constitution itself establishes.

Under the aspect which the question has now assumed, it is • brought within the operation of a general principle, to which we shall for a moment advert. The franchise of voting is a special right, or power. The power has no existence independently of the restraints imposed upon it by the Constitution ; that is, no existence except as subject to the peculiar method prescribed by the Constitution, governing its practical exercise. The mode, on received principles, must be considered as of the essence of the power. Now, under the Constitution there is but one method, and that method excludes all others; and, therefore, an exercise of the power can neither be constitutionally claimed, nor can it be constitutionally conceded, except as such claim shall be made or manifested in the mode or after the constitutional method of the power. According to that method, when the Government meets an elector at a time previously appointed by itself, for the purpose of learning his personal choice, he can neither make it known to the Government, nor can the Government consent to know it, except as he communicates it by vote or ticket in writing, called in the Constitution a “ballot,” which the elector, in his own proper person, delivers to the Government by the act of depositing it in a ballot box then and there in the possession and custody of the Government by its officers duly appointed; or, alternatively, by actually offering so to deposit it. When a ballot has been so actually deposited, or has been so actually offered by an elector, it becomes “ his vote ” in the sense in which these words are used in the first section of the Second Article of the Constitution; that is, an expression of the elector’s choice through the one metlmd of the Constitution; and as all other methods of “claiming his vote” are forbidden, it follows that a ballot not cast into the box under that method 4 is utterly idle.

We shall now reproduce the whole passage in which the phrase “ claims his vote ” occurs, and then restate the same passage in a form sufficiently extended to include within it all the minor conceptions involved in the word “ vote,” and on the statement thus extended shall consider the question of what conclusion follows from it determining the main question :

“A citizen * * * who shall have been a resident of the State six months next preceding the election, and of the county or district in which he claims his vote thirty days, shall be entitled to vote,” etc.

“A citizen * * * who shall have been a resident of the State six months next preceding the election, and of the county or district in which he offers or performs the act of offering to deposit, or in which he performs the act of depositing, a ‘ ballot ’ in a ballot box, shall be entitled to vote at all elections,” etc.

The general question is, where is the act of offering a ballot to the Government, or the act of depositing a ballot in a ballot box, to be performed ? That question is now to be determined upon the constitutional provision as above extended, and it can be determined only by inspection—that is, by steadily looking at it and noting the responses of the intuitions.

Lest, however, the inspection should be embarrassed by some misgiving as to the accuracy of the extended statement^, we will recast the statement, using the very language of the Constitution, found in the second section of the Tenth Article:

“A citizen * # -* who shall have been a resident of the State six months next preceding the election, and of the county or district in which such voter shall seek (that is, perform the act of seeking) to express his opinion by depositing in the ballot box a ticket, whereon shall be written or printed ” certain words, etc.

On this last statement, expressed as it is in the very language of the Constitution, and on the terms used in the second statement, which terms agree with the terms of the last in every material particular, as well as on the first statement, extracted from the first section of the Second Article, which differs from neither of the others except as it is somewhat more condensed, it is in our judgment entirely manifest that the act of voting is to be performed within the State and within the county or district in which the qualified elector has his civil home.

In aid of this conclusion, we deem it proper here to add that it is not opposed to any opinion which the Legislature has expressed as yet; but, on the contrary, the Legislature has sanctioned the conclusion stated, and in two instances. The Act of 1863 and the Act of 1864 are both framed upon the hypothesis of its truth. The provision of the Acts, respectively, which bears us out in this statement is as follows: “Ballot boxes shall be opened at each place where a regiment shall be on that day * * * and the votes so given at such time and place shall be considered, taken and held to have been given by them in the respective counties of which they are residents.” Had the Legislature enacted that an alien should be considered, taken and held to be a citizen; that minors should be considered,, taken and held to be of adult age; that for voting purposes all colors should be considered, taken and held to be white, it would have been no abuse of terms to say that the Act bore upon its face an admission that the Constitution established the distinctions which it was the purpose of the Act to efface, and as clearly, too, as though the Act had contained a “whereas,” reciting the constitutional provision at length, and further reciting that for certain reasons it was thought proper by the Legislature to suspend the constitutional rule for a limited time, or forever, and had then proceeded to ordain that for all the purposes of canvass, and for all the purposes of judicial determination, the distinctions named should be taken and deemed as utterly obliterate.

Judge Redfield, of the Law Register, in commenting upon a kindred provision in the New Hampshire statute, which the Supreme Court of that State had pronounced unconstitutional, in a learned review of the opinion, remarks that the Act contains “a virtual admission upon its face that it did, unless its provisions could be construed to mean something else besides what their words expressed, conflict in express terms with the provisions of the Constitution.” So then it appears that the only issue made up between the Act of 1863 and the Constitution, or between the judicial and the legislative departments of the Government, is as to the power of the latter to abrogate an admitted constitutional provision, or what amounts to the same thing, to abrogate the whole instrument, as by ordinance. If we had any misgiving as to the absolute correctness of our own convictions as to the unconstitutionality of the Act of 1863, and we have not, the legislative sanction which the Act itself exhibits would go far toward removing it.

We now propose to consider the decision of the Supreme Court of Wisconsin in State ex rel. Chandler v. Main, that of the Supreme Court of Iowa in Morrison v. Springer, and that of the Supreme Court of the State of Pennsylvania in Chase v. Miller.

The fifth section of the Thirteenth Article of the Constitution of Wisconsin is as follows: “All persons residing upon the Indian lands within any county of the State, qualified to exercise the right of suffrage under the Constitution, shall be .entitled to vote at the polls which may be held nearest their residence, for State, United States or county officers; provided that no person shall vote for county officers out of the county in which he resides.”

The Court held that the proviso did not mean to prohibit the /voter from being allowed to cast his ballot .outside of the county in which he resided, but to prohibit him from voting for officers of a county in which he did not reside. We have not seen the opinion delivered in the case, and therefore have no knowledge of the reasoning. The proviso, considered as detached from the context, presents a form of words analagous to those presented in the kindred passage of our own Constitution ; and if the Court determined the meaning of the proviso ex vi terminorum, and without reference to the general rule prescribed in the body of the provision, and without any reference to or reliance upon any other provision contained in the Constitution at large—that is, if all the grounds of the Wisconsin judgment were like those upon which our conclusions are based, then the two conclusions stand opposed to each other nefcessarily; but should it appear that the grounds are unlike in any substantial particular, then the several conclusions are not necessarily opposed to each other, and both may be correct. We can, however, very well conceive that the judgment in the case cited was not based upon the words of the proviso alone, but that those words were construed in the light thrown upon their meaning by the immediate context, stating the general rule, and of which rule the proviso is a qualification. The immediate context states three conditions of 'v fact, upon which the rule of voting, as .unaffected by the proviso, is made to depend : 1st, Domicil in a county; ^ j, Actual residence on Indian lands therein; 3d. The “nr.¿rest polls” —that is, the nearest point or place at or in " nich the Government should establish a poll; and the Ceai'u may have considered that, inasmuch as the Constitution did not describe that point otherwise than by the use of the word “ nearest,” the Legislature was left at liberty to fix it, in its discretion, either within or without the county of the elector’s residence, and thus have been brought to a conclusion directly opposite to the one it would have reached on the bare terms of the proviso. But if in fact the Court based its conclusions upon the proviso as detached from the context, then the correctness of the conclusion will be considered in connection with the conclusion in the Iowa case, which confessedly had no other basis.

The provision of the Iowa Constitution is as follows : “ Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State six months next preceding the election, and of the county in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or may be authorized bylaw;” and the Court holds that the provision means simply that “ a person cannot claim to be an elector in any other county than where he has such residence; that, in substance, is what is meant by the word claims.”

There are three propositions maintained in the opinion: 1st. That the object, or “leading object,” of the section was “to define who should be entitled to vote”—that is, as we understand it, to define the qualifications of voters; 2d. That, however, the particular passage—‘1 in which he claims his vote” —does not relate to electoral qualification, for it is asked, “what weight, then, shall be given to the word ‘claims?’ Does the assertion of this right (the right of suffrage), or a claim to exercise it, constitute any part of the qualifications of the voter ? In other words, if he is of the right age, sex and color, and has the requisite residence, is he not a qualified voter, though he may not claim to exercise that right? If so, then how can the claim of a right already perfect, add to its completeness?” 3d. That the import of the passage is, that “a person cannot claim to be an elector in any other county than where he has his residence”—which means, affirmatively stated, that a person who is a citizen, and who is of the right age, sex and color, and who has resided in the State six months, and in some county or district therein for thirty days next preceding the election, is a “ qualified elector” of that county or district, and of no other.

We have already indicated our assent to the correctness of the second proposition, but it is apparent that its truth is wholly irreconcilable with the truth of the third—for in the one it is asserted that the passage does not bear upon the subject of electoral qualification, while in the other it is as broadly asserted that it does. Further, it cannot escape notice that some of the prominent terms of the passage to be interpreted are not found in the third proposition as stated, and particularly the words “his vote” are wanting, and the words “to be an elector” are substituted as the constitutional object of the word “ claims” in their stead. But the words “to be an elector” and the words “claims his vote” obviously do not. mean the same thing. The one merely involves a declaration of personal quality or character; the other sets forth an event brought about, or to be brought about, by an elector after the character has been acquired. But we propose to further" briefly examine the reasoning upon which the conclusion is based that the disputed passage does not bear upon the place where the act of voting is to be performed, but upon electoral qualification instead. The whole reasoning proceeds upon the word “ claims.” The word is defined as importing “ the demand of a right, or of a supposed right,” and we admit the entire correctness of the definition. It is then said that “a right or other thing may be asserted (claimed) by words or by other means.” This as an abstract proposition—and that is the form in which it is put—is unquestionably true. It is then stated that the word “claim” (in the abstract) by no means implies that place or presence are essential to its potency or completeness. This is not only sound, but entirely apparent also. We hold it to be quite manifest, that'there arc many cases in which the citizen may make known his preferences to the Government by mere verbal statement, and that there are also cases in which he may express his personal choice to the Government on matters of public concern by a note in writing-sent either through the General Post Office or by the hand of a messenger, and it would not be a matter of the slightest importance whether he adopted the one course or the other. If the public mail should be used, it obviously would be of no practical consequence whether the point of delivery was in the county or district or even in the State of the citizen’s residence ; nor would it be of any constitutional or other public concern where the Grovemment functionaiy to whom it was addressed should happen to be when he received it. So far, the opinion obviously engages itself in laying down a basis of conclusion. All after that is conclusion merely. The basis is found in the word “claim,” as detached—isolated. The opinion ascertains and declares its abstract definition to be, “ to demand a right or supposed right,” without in any manner involving the means by or through which, or the place at which, the demand is made. Having determined what the word includes, and also that it does not include a certain other thing in the abstract, the opinion concludes not only by declaring what the word does not mean as it stands in relation in the phrase “ in which he claims his vote,” but by stating affirmatively what the whole phrase means when considered in connection with its context. We have no disposition to indulge in the triflings of hypercriticism, but much prominence has been given to this opinion in argument; it has been repeatedly pressed upon our attention as a case which we well might follow as authority, even if it did not exactly accord with the convictions resulting from our own reasonings; and in order to determine whether we could follow it without seriously imperilling the whole of that most important branch of the law which relates to the construction of wills, contracts, statutes, and Constitutions, we have felt it our duty rather than our privilege to subject the opinion to the same test to which we hereby subject our own.

As to the conclusion drawn by the opinion in question from the purely abstract definition named, we submit that it is a non sequiter to the whole extent of the terms in which it is stated. Let the process as such be inspected. The general question involves the meaning of a phrase containing some fifteen words as related to the disputed question of place. Some ten of the words are prominent as nouns or verbs, with other words interspersed showing the relations between them. The opinion begins by taking one of the more prominent words out of its position in the phrase and ascertains its definition in the abstract, and from that definition alone determines the conjoint force of all the words as they stand in relation. The conclusion may be right, or it may be wrong, but to every intent, whether practical or conceivable, the question is left just where it lay in the beginning, that is to say in hypothesis. The so called conclusion is one only in name; in fact, it is the original question itself in the guise of conclusion. Our purpose has not been to examine into the correctness of that conclusion here, for that we have done already and in advance; but on the other hand, our main purpose has been to test the accuracy of our own conclusion by looking, not at the bare conclusion of another tribunal, but by looking at the reasoning adduced in support of it; and we cannot surrender our own convictions merely on the authority of the case named, inasmuch as it nowhere brings them to the test of just challenge. We have a further remark to make touching the opinion before finally leaving it. While it is true abstractly that there is a diversity of modes in which a person may claim a real or supposed right, still the opinion makes no allusion to the fact that 'by the Constitution of Iowa, as by our own, there is but one mode by which an elector can claim his vote, and that is by the voter’s depositing or offering to deposit a ballot in person in the ballot box. And again, the opinion nowhere touches the word “vote,” either as detached or as it stands in the Constitution. The meaning of that word as it stands in position is not only entitled to consideration, but in our judgment it presents one of the pivots of decision. It is the constitutional object of the transitive verb “claims,” and the fact cannot be got rid of. And here we cannot fail to notice that the argument submitted for the appellants also overlooks both of the points to which we have just alluded.

On these grounds we do not feel at liberty to surrender our own convictions, and pursue a course which would, in our judgment, throw the whole law relating to the construction of written instruments into hopeless confusion.

The Pennsylvania case previously referred to here claims a moment’s attention. The Constitution of Pennsylvania uses the word “offers,” where ours uses the word “ claims.” We have concluded that under our Constitution there is no mode of claiming a vote, except by offering it, and it follows that the word “ claims,” as it stands in our Constitution, is considered as the exact equivalent of the word “ offers;” therefore, the correctness of our final deduction is sustained by the Pennsylvania decision. The correctness of that decision has never been doubted, and it has met the approval of the learned editors of the Law Register. In the Connecticut case cited by the appellants, the Supreme Court of that State expressed its concurrence in the doctrine of the Pennsylvania decision most emphatically. Speaking of time and place, the Court say: “In Pennsylvania the place was only prescribed by the Constitution, but that was sufficient to render an Act of the Legislature authorizing a reception of the soldiers’ votes out of the State invalid.” And in the Iowa case even the Pennsylvania decision is spoken of in terms of approbation, for the Court say: “Mr. Justice Woodward, in the case of Chase v. Miller, in what must be admitted to be a very able and almost exhaustive opinion, holds that the law allowing soldiers to vote outside of the boundaries of the State is in conflict with this section of the Constitution (referring to the Pennsylvania provision),-and is therefore null and void.” So it appears that the very cases relied on for the purpose of showing the incorrectness of our conclusion, themselves recognize the correctness of a decision that sustains it.

We have postponed an examination of the purely grammatical argument which has been suggested until it could be conveniently confronted with the case just cited. The reasoning is too elaborate and refined to enable us to review it here in full detail, but in substance it comes to this: That the passage “in which he claims his vote” is a “prepositional phrase,” and that the words “county” and “district” are “its objects of relation;” and from these premises the conclusion is deduced that the provision performs the office of designating the particular county or district in which the fact of a thirty days residence must transpire in order to make the subject of the sentence “ a qualified elector.”' In so far as the reasoning is based upon the language of the Constitution, it begins and ends in the foregoing grammatical exposition. The answers are as follows: 1st. The argument is inherently weak as being purely grammatical. 2d. The conclusion, however it may be in accordance with the premises assumed, is obviously fallacious when considered in itself, as a proposition of law. Is it true that the Constitution of this State, either in the disputed passage or elsewhere, “designates” the particular county or district in which the fact of a thirty days residence “must” transpire “in order” that a citizen may take on the character of a qualified elector ? 3d. However the phrase in question may be “prepositional” it is apparent that- the corresponding phrase in the Constitution of Pennsylvania was affected with the same infirmity; and, 4th. Nothing can be claimed on the ground of the assumed “ prepositional ” character of the expression in the case stated, that must not be conceded to the one of like quality (by parity) in the provision: “A duly qualified grantee, who shall have recorded his deed in the county in which the land is located shall be entitled to priority,” etc. The “prepositional phrase” there, instead of “designating” the “particular” county where the land “must” be located “ in order” to entitle the grantee to priority, very clearly designates the place at which the act of registration is to be performed.

But another argument has been advanced which, when analyzed comes to this, that if our Constitution fixes the place of voting by force of the language in question, then the Constitutions of New York and Kentucky are tautological or redundant, inasmuch as it follows that those Constitutions, respectively, repeat themselves on the question of place. In the first place we do not appreciate the force of the reasoning, and in the second place it proceeds upon an entire mistake of fact, as any one may see by referring to the Second Article of the Constitution of Hew York, and the eighth section of the Second Article of the Constitution of Kentucky.

An argument has also been asserted, which is based upon what may be called the history of constitutional changes in two or three of the States during the last half century—but the argument is too remote and the grounds are too evasive to require serious consideration. Grounds of the quality named, find no recognition in the rules of interpretation previously cited.

Our attention has been called to the case of Capen v. Foster, 12 Pick. 485, but the only point decided in that case was, that the Massachusetts statute, requiring a registration of voters, was not in conflict with the State Constitution.

We have considered the argument drawn by counsel from the eighteenth section of the Eleventh Article of the Constitution. “ The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult or other improper practices.” It is said that “the power to regulate elections implies the power to provide the necessary means by which all electors may vote;” but in our judgment the scope of the implication is narrowed by the positive provision of Article Second, which we have discussed, and to the extent named.

Were it necessary, the correctness of the conclusion at which we have arrived might be vindicated by reference to another constitutional provision. By section two, Article II, “Electors shall in all cases except treason, felony, or breach of the peace, be privileged from arrest, on the day of election, during their attendance at such election, and going to and returning therefrom.”

This section treats of attendance at elections, in connection with tlie impediment of arrest on civil process, whereby such attendance would or might be prevented, and exempts electors from such arrest, leaving them, however, subject to arrest for treason, felonies, and breach of the peace. From arrest on civil process, the voters are, in the language of the section, “ privileged.” But if the act of voting, constitutionally considered, can he performed on California account, outside of the State’s jurisdiction, it would not he true that the person thus voting in a sister State, or on national territory, or within the limits of a foreign nation, would be exempt from arrest in civil cases on the score of the “privilege,” secured in “all cases” by our Constitution, to electors whom it regards as having the right to go on election days to the polls and deposit their votes in its ballot boxes. The admitted immunity of such extra-territorial voters from arrest, on California process, would not find its source in the “privilege” provided for in section two, but would result from the fact that they were beyond the reach of our civil justice. Nor would their immunity from arrest on our "civil process be limited to the day of election, but would include every day of the year. Nor would their exemption be confined to freedom from arrest on our civil process, "but would comprehend arrests on California process for the very crimes to which section two provides in terms that the exemption shall not extend. The result is too obvious to be mistaken. If a valid election for home officers can, under our Constitution, he held either in whole or in part outside of our territorial jurisdiction, in so far as the voters participating in such election are concerned, the section in cpiestion contains an impossible provision. The section states no distinction between elections or electors, but applies itself in terms to all elections and to all electors, known as such in constitutional idea. Looking at all the possible electors in bulk and considering them all as within and as acting within the jurisdiction on the day of election, the section extends to them all a “ privilege” which, on one of the adversary hypotheses here presented, would be of great practical moment, but under the other would be not only unavailable, but destitute of all intelligible design. We do not put the argument here upon the ground that if it should be admitted that the Legislature has the power to fix the place of voting, that it might abuse the power, and therefore that the power should be denied, but upon the ground that the hypothesis that the power exists is irreconcilable with the express provisions of section second.

So far we have made little allusion to the fact that the persons to whom the Act of 1863 relates are soldiers in the service of the United States, and we have omitted to do so for the reason that the section of Article II of the Constitution,* already considered, suggests no distinction between one class of voters and another. The standard of qualifications erected by those sections stands, so far as those sections are concerned, as the common measure of all voters alike, and the requirement involved in those sections, that every voter shall offer his vote in the county or district in which he resides, is a rule dictated to every man who claims the suffrage.

But it is urged that by section four, Article II, duly qualified voters of this State, employed in the service of the United States and being absent from the State by reason of the exigencies of such service, are specially exempted from the operation of the general rule established by the previous sections of the same Article. This section is as follows:

“ Sec. 4. 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 of any seminary of learning; nor while kept at any almshouse, or other asylum, at public expense; nor while confined in any public prison.”

And section nineteen, Article XI, extends the benefit of the provision to persons absent in the service of the State.

We shall not undertake to reply categorically to the argument of the counsel for the appellants, based upon this section ; but shall proceed at once to a brief exposition of our own views of its meaning.

. It is obvious that the section does not add to the tests of qualification as established by section one of the same Article. It is obvious, also, that it does not diminish the number of those tests, or in any manner vary their quality. Assuming, then, that the standard of qualification applicable to persons in the service of the State, or of the United States, or engaged in navigating the waters of this State, or of the United States, or of the high seas, on their own private account, and applicable, also, to students attending seminaries of learning, is no other or different standard than that which section one applies to aspirants to the suffrage without distinction, the question comes: What is; "then, the distinctive function of section four? In what exact stead does it stand? The section answers these questions "with great explicitness. None of the persons whom the sectioil describes shall “lose their residence” by their absence. The qualification of residence having once been attained to by a person falling within any one of the classes named, that qualification shall sustain no detriment by reason of absence, and therein the section affirms the rule of the common law. The section does not contemplate soldiers as such, or in any manner touch them as such. They are within the section simply for the reason that they are “persons employed in the service of the United States.” The section includes also within its beneficent range all persons engaged in navigating our internal waters for their own advantage, and the waters of the United States and high seas as well. Scholars at School are within it. The inmates of almshouses and other asylums at public expense are within it, and the section even saves the legal residence of the prisoner from deterioration during the confinement which holds him back from the polls. The section is enabling to no one. It gives no new right—it reissues no old right on new and easier conditions—but simply perpetuates a quality already won as against an absence that otherwise might bring it in question. How, then, does this section touch the point of contest here ? That point does not relate to any one of the qualifications upon which the right of suffrage is conditioned, but to the question, Where shall the elector, in whom the right to vote is fully vested, exercise that right ? It is a question of place; rigidly, it is a question of venue, and section four exhausts itself upon a topic of different impression and substance.

But, further, if the Legislature is bound by section four (as is contended by the appellants) to send the ballot box to the soldier wherever he may be found, why, by parity of reasoning, is not the Legislature at liberty to send ballot boxes to qualified electors of this State employed in the civil service of the State or of the National ^oghi^ient, and absent from the State by the exigencig^]^haff.qm>>]pyment ? And why is not the Legislature at/^iberty^..y fonxévÁ the same section, to open ballot boxes at |Hxeópvem^it pc&ms&within the State for the accomnmdation v^pf%jie n%^gat^s^of our internal waters absent from theiri resp^tive^oujii/es or districts on the day of election? And á^so, 4b answer the just claims of our navigators on the high seas'l'^y^Snding ballot boxes with them or in pursuit of them ? And so, also, as to the sick in the hospitals, the inmates of asylums, and as to prisoners not disfranchised by the nature of their offenses.

A word further, and this opinion will be concluded. To a certain extent the case is argued in the brief filed for the appellants as though a question of disfranchisement of the California volunteers was involved, and that our decision went to their disfranchisement. If it be so, however we may regret it as individuals, we have no power to prevent it as Judges. But the case raises no such question, nor does this decision involve any such consequence. Though opportunity to vote at current elections has been lessened, still, diminished opportunity of exercising a right is in no just sense a divestiture of it. Nor does the admitted fact that the volunteers cannot vote with the same facility in their new relation as in the old one—in war as conveniently as in peace—result in the remotest degree from any provision of the Constitution inserted for the purpose of discrediting qualified electors of the State enlisting in the national armies; but, on the contrary, the soldier’s diminished facility of voting is attributable solely to the accident of his absence. It is true of those employed in the civil service of the Government as well as of those who are engaged in its military service, -and it is true, also, of electors at large, that they are often kept from the polls by considerations of urgent convenience—by absence, voluntary or compelled—and by a great diversity of obstacles which they could not surmount if they would, and, perhajis, would not if they could. Considered in this jaoint of view, there is absolutely no impediment or possibilities of hindrance affecting the military vote that do not affect the whole civil vote in like manner; or, if there is any difference between them, it is one of degree only.

The record shows that five hundred and forty votes were cast for York for the office of Assessor in District Number One, and that five hundred and nineteen votes were cast for Weinbeer, who was the rival candidate for the same office. Of the five hundred and forty ballots cast for York, forty were cast by soldiers under the Act of 1863, and on that ground are to be rejected—leaving five hundred votes only standing to the credit of York, and that number is overcome by the five hundred and nineteen standing to the credit of Weinbeer. But it is alleged by the appellant, York, that Weinbeer’s vote should be reduced by deducting thirty-five votes therefrom, cast for him at Phoenix Reservoir, on the ground of certain alleged maleonduct on the part of the Inspector, in the matter of transmitting the votes to the County Clerk.

It is admitted that the votes in question were cast by duly qualified electors, on lawful occasion and at the proper place. These facts being found, their effect cannot be defeated by reason of the mere official delinquency of the Inspector.- (8 Cowen, 102; 4 Cowen, 297; 20 Wend. 12; 5 Denio, 409; 12 Barber, 257; 8 N. Y. 67.)

The appellants further insist that the complaint does not state facts sufficient to constitute a cause of action.

All the cases were heard and determined upon an agreed statement of facts, and the only question before us in error is, whether the agreed statement will support the judgment—and to the sufficiency of the facts stated therein no objection is taken.

The judgments are respectively affirmed.