Powell v. Spackman

QUARLES, C. J. This action was. commenced by the appellant, who is an elector of Ada county, to contest the election of the respondent, Hester M. Spademan, to the office of county superintendent of public instruction of said county, and who received a certificate of election to said office; whereas it is claimed by appellant that Miss Helen Coston was elected to said office, and should have received certificate of election thereto. A stipulation of facts was filed, and the case decided upon the same by the lower court. It is agreed in the stipulation that forty inmates of the soldiers’ home, situated in soldiers’ home precinct, in said county, voted for Miss Spack-man, including which forty votes the votes of Miss Spackman was two thousand two hundred and ninety-nine and that of Miss Coston two thousand two hundred and ninety. It is also stipulated that these forty inmates never resided in said county except in said soldiers’ home, the eighth paragraph of the stipulation being in words and figures as follows: “That at least forty of the said persons above referred to, and whose names are set forth in plaintiff’s complaint, will testify that they abandoned their former residences and places of abode with no intention of returning thereto, and took up their residence in said soldiers’ home in said soldiers’ home precinct, Ada county, Idaho, and thereafter resided and continued to reside therein with the intention of permanently remaining and residing there; and that each of said persons were, at the time of said election, and for six months prior thereto had been, residing at — 696 — and as inmates of the soldiers’ home in said Ada county, state of Idaho; and that at all times during their residence there-the said soldiers’ home was established under the laws of the-state of Idaho, and maintained at the public expense. That, all of said persons above referred to were duly and regularly admitted to said soldiers’ home under the terms and provisions-of the act entitled 'An act to establish a áoldiers’ home,’ passed at the second and fifth sessions of the legislature of the state of' Idaho, and approved March 2, 1893 [Sess. Laws 1893, p. 91], and February 9, 1899 [Sess. Laws 1899, p. 190], respectively, and hereinbefore referred to; and during all the time of their-residence in said Ada county they were maintained in the said soldiers’ home at the public expense.” Judgment was given in favor of Miss Spaelanan, the respondent, from which judgment this appeal was taken. This cause is to be determined upon a construction of article-6 of our constitution, especially section 5 of said article, which is as follows: “For the purpose of voting no person shall be-deemed to have gained or lost a residence by reason of his-presence or absence while employed in the service of the state,, or of the United States, nor while engaged in the navigation of' the waters of this state or of the United States, nor while a-student of any institution of learning, nor while kept at any almshouse or other asylum at public expense.” Section 2 of said article of the constitution, as amended; provides that:“Except as in this article otherwise provided, every male and' female citizen of the United States, twenty-one years old, who-has actually resided in this state or- territory for six months, and in the county where he offers to vote thirty days next preceding the election, if registered as provided by law; is a qualified voter.” Section 3 of said article provides that parties who are insane, under guardianship, idiotic, convicted of any of certain crimes, and not restored to citizenship, or who, at the time of the election, is confined in any public prison, etc., shall not vote. Section 4 of said article is as follows: “The legislature may prescribe qualifications, limitations and conditions for-the right of suffrage additional to those prescribed in this-article, but shall never annul any of the provisions in this. — 697 — article contained.” The election statutes of this state cannot affect the question presented here, as none of the constitutional provisions can be repealed by legislative enactment. It will thus be seen that the qualifications of an elector are prescribed by the constitution; that the legislature is restricted from annulling any of the qualifications prescribed, but expressly authorized to prescribe additional “qualifications, limitations, and conditions for the right of suffrage.” One of the indispensable elements of the ‘right to vote in this state is residence —“six months in the state, and thirty days in the county, next preceding the election” — and so says the constitution. Can this residence be acquired by a person who is an inmate of an almshouse or of an asylum kept at public expense, while residing in such almshouse or asylum ? The answer to this must be found in a construction of the language used in section 5, article 6, of the constitution, quoted above. This section must be considered in connection with the other provisions of the constitution, and the whole must be construed so as to give force and effect to all of the provisions of that instrument, without destroying or nullifying any of them. The meaning and intent of the provision in question, taking the instrument as a whole, must be determined. In doing this we must give to the language used that effect which was most probably intended. We must consider the words used in their ordinary and usual signification. It will be seen that the specific inquiry here is whether a resident of some county other than Ada county can take up his abode in the soldiers’ home, in soldiers’ home precinct, in Ada county, intending to make that his home permanently, and with the intention of abandoning his former residence, and by continuous presence in said soldiers’ home for thirty days (he having been in the state six months prior thereto), acquire the right to vote in said precinct. The stipulation of facts in this case shows that the votes in question were cast by inmates of the soldiers’ home, who, “during all the time of their residence in Ada county, .... were maintained in the said soldiers’ home at the public expense.” With all due deference to the inmates of said soldier’s home, there can be no question but what it is an — 698 — '"asylum,” maintained “at the public expense.” Now, in the purview of the constitutional provision under consideration, what does the language used mean: “For the purpose of voting, no person shall be deemed to have gained of lost a residence by reason of his presence or absence .... while kept at any almshouse or other asylum at the public expense”? In interpreting this language we should have no serious trouble, as all the words used are simple, and have a well-defined signification as used in common parlance. ‘ If any one word in this section is liable to raise any doubt whatever of the meaning of the provision, or the effect that it was intended that the provision should have, it is the word “deemed,” in the phrase “no person shall be deemed to have gained or lost a residence by reason of his presence or absence,” etc. The word “deemed” is the past participle of the transitive verb “deem,” which is defined by Webster as follows: “To account; to esteem; to think; to judge; to hold in opinion; to regard.” And it is defined by the same lexicographer, when used as an intransitive verb, as follows: “To be of opinion; to think; to estimate.” Giving this word its ordinary signification as generally used, it would read in the provision in question thus: “No person shall be accounted, or no person shall be esteemed, or no person shall be thought to be, or no person shall be judged to be, or no person shall be held in opinion' to be, or no person shall be regarded to have gained or lost a residence by reason of his presence or absence at an asylum kept at the public expense, for the purpose of voting.” The right of the forty inmates of the soldiers’ home mentioned in the pleadings and stipulation of facts depends, so far as the qualification of residence is concerned, to vote in said Ada county, upon their presence in said soldiers’ home. They did reside in other counties. All of their residence in Ada county has consisted of the time spent by them in the soldiers’ home; and, if they have resided in Ada county the requisite thirty days required by the constitution in order to entitle them to vote in the latter county, it must be “by reason of their presence” in the soldiers’ home. Now, if the court is prohibited from “accounting” them residents' of the county of Ada, for voting purposes, “by reason of their pres699 once” at said home, how can we account 'them residents of said county? How can we “esteem” them residents of said county? How can we “think” them residents of said county ? How can we “judge” them to be residents of said county? How can we “hold in opinion” that they are residents of said county ? How can we “regard” them as residents of said county? To do so it must be “by reason of their presence” at the soldiers' home, and while kept at public expense, in plain violation of the constitution. This cannot be done without violating the constitution itself. The language used cannot be regarded in any other light than that the framers of the constitution intended that the inmates of such an institution, whose residence in a county depended upon their “presence” in or at such institution, should not vote in such county; and, further, that by reason of their absence from the county of their residence they should not lose their right to Vote in the latter county. In the case of Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444, the court of appeals of New York construed a similar provision. The plaintiff in that case had been an inmate of the soldiers’ home at Bath six years, and made oath as follows: “I reside in the town of Bath for the reason that I was admitted as 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 institution, so long as'I shall be permitted to remain such inmate, .... In becoming an inmate of said institution, I intended to change my residence from the city of New York to the fifth election district of said town of Bath.” The plaintiff there, so far as intent is concerned, abandoned his residence in the city of New York, and changed it to the town of Bath. Yet the New York court held that his narrative of this intention was only a conclusion from the facts stated. The court said, inter alia: “His relations were not with the village, but with the institution, which was situated within its borders.It follows that he has not lost the right to vote in the place of his legal residence, New York, for the provision of the constitution in question also declares that he shall not lose his resi — 700 — dence by reason of such ‘presence’ in the ‘institution.’ As to that city, -he is to he regarded as temporarily absent, and his residence as a citizen still therein. We have no doubt that the institution in question is within the purview of the constitutional provision (article 2 section 3) above referred to. It is an asylum supported at the public expense, and its members are within the mischief against which that provision is aimed — the participation of an unconcerned body of men in the control, through the ballot-box, of municipal affairs in whose further conduct they have no interest, and from the mismanagement of which by the officers their ballots might elect they sustain no-injury. But the question in each case is still, as it was before the adoption of the constitution, one of domicile or residence, to be decided upon all the circumstances of the ease. The provision (article 2, section 3) disqualifies no one; confers no right upon anyone. It simply [note the language] eliminates from those circumstances the fact of the presence in the institution named or included within its terms. It settles the law as to the effect of such presence, and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere.” The able and ingenious counsel for respondent argues that the decision in Silvey v. Lindsay, supra, does not support the contention of appellant; that the facts are different; that in that case the plaintiff’s abode in the soldiers’ and sailors’ home was only temporary, transient, and not intended to be permanent; hence the decision there is not applicable here. However strenuous the effort to distinguish between that case and the case at bar may be, it must fail, as there is no distinction, except in theory, between that case and the one at bar. It is true that Silvey said that he entered the home at Bath “with the intention” of making it his “residence” so long as he should “be permitted to remain such inmate,” while the stipulation here gays that the forty inmates whose votes are questioned entered the home “with the intention of permanently remaining there,” and that they had “abandoned their former residences and places of abode with no intention of returning — 701 — thereto, and took up their residence in said soldiers’ home.” Yet it is apparent that the plaintiff in the Silvey case and the forty inmates here each entered the home with the same intent, to wit, with the intent to reside in said home, and make it their permanent abode, so long as they could do so, or were permitted to do so. As a matter of course, all such institutions have their rules and regulations, and. inmates may be discharged for violations of same; and then the continuance of the institution itself is somewhat problematical, depending, as it does, upon popular sentiment — an element that is always charged with more or lass uncertainty. But the New York court expressly says in the _ Silvey case that the presence of the inmate in the home does not constitute a test of a right to vote, and is not to be so regarded, and that “the person offering to vote must find the requisite qualifications elsewhere.” Now, suppose we do, as the New York court in Silvey v. Lindsay said must be done, eliminate the presence of these inmates from the soldiers’ home, and upon what possible hypothesis can it be held that they are entitled to vote in the precinct in which the home is situated? They came from their former homes, in other counties, to the soldiers’ home, and remained in the home until the election at which it is claimed that they voted wrongfully. If they have resided in Ada county the requisite time (thirty days) to entitle them to vote at said election, it is solely by reason of their presence in the home. This presence, as was said in Silvey v. Lindsay, and as the constitutional provision under consideration clearly intends, is to be eliminated — not regarded — and their qualifications must be sought elsewhere. Now, the constitutional provision under consideration does not prohibit inmates 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. 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 — 702 — gained a residence” in the county by reason of their presence at the home? The constitution does not disfranchise any one. It simply declares what persons, by reason of age, citizenship, and residence may vote. In the provision under consideration no one is disqualified from voting. It is declared, however, in that provision, where the parties therein named shall vote. When it declares that no one, by reason of presence or absence in certain service, or at certain institutions, shall be regarded or deemed to have gained or lost a residence for the “purpose of voting,” it is only meant that whoever enters such service or such institution, if he votes while in such service or institution, must do so at the place where he was entitled to vote at the time he entered such service or institution. Any other interpretation of the language of the constitution would do violence to the words used, and would palpably defeat the meaning and intent of the provision under consideration. The rule of liberal construction — such as will give effect to the object of a statute or constitutional provision — applies in this state. This rule has been properly adopted. Yet, claiming to apply this' rule, an interpretation or construction is asked in this case which does not effect the object sought to be accomplished, but defeats the same. That object, as was said in the Silvey case, was to prevent the mischief resulting from “the participation of an unconcerned body of men in ..the control, through the ballot-box, of municipal affairs in whose further conduct they have no interest, and from the mismanagement of which by the officers their ballots might elect they sustain no injury.” The construction that we are asked to give this constitutional provision is not a construction, but destruction. It does not carry out the object of the constitutional provision; it does not give force and effect to it; it destroys the provision by defeating and thwarting its object and intent. The respondent interprets the decision in Silvey v. Lindsay, cited supra, as holding that one can, if he so intends, by mere residence in an institution like the soldiers’ home, and while kept at public expense, gain a residence for the purpose of voting, notwithstanding the constitutional provision under consideration; and cites the decision in the following cases as sus — 703 — taining this interpretation, to wit: People v. Cady, 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399; In re Goodman, 146 N. Y. 284, 40 N. E. 769; In re Garvey, 147 N. Y. 117, 41 N. E. 439; In re Batterman, 14 Misc. Rep. 213, 35 N. Y. Supp. 593; In re Griffiths, 16 Misc. Rep. 128, 38 N. Y. Supp. 953; People v. Hagan, 48 App. Div. 203, 62 N. Y. Supp. 816. A study oí these decisions is instructive, as well as interesting. In People v. Cady the defendant was convicted of illegal registration. The facts were that he had been an inmate of the Tombs prison for about seven years, serving under commitments for sixty days each, for vagrancy, and which he himself procured. He testified that he had made his home at said prison, and intended it as his permanent home. The court held that, for voting purposes, the prison could not be the home of any one confined there; that it is not a place of residence, and not maintained for that purpose. The court affirmed the judgment of conviction. In the Goodman case one Henry W. Bainton, who was a student at the Hnion Theological Seminary, in the twenty-fifth election district of the twenty-first assembly district of the city of New York, registered in said district. Goodman moved to strike Bainton’s name from the registry list on the ground that he was not a resident of said district. In opposition to the motion. Bainton deposed that he went to the seminary for the purpose of obtaining a residence and domicile, that he had no intention of changing his residence, and that 'he claimed no residence elsewhere. Hnder the constitutional provision of New York, from which the one here under consideration seems to have been copied, the court held that, for voting purposes, Bainton could not lose his residence by removing to the seminary, “nor gain a new residence in the seminary district by his presence in it as a student.” The court said in that case, inter alia, that: “Usually — perhaps always — the voting residence remains unchanged until a new residence is actually acquired; but there can be no such acquisition merely by an abode as a student in an institution of learning. Something else beyond the fact, and wholly independent of it, must occur to effect the change. The intention to change is not alone sufficient. It must exist, but must concur with, and be — 704 — manifested by, resultant acts, which are independent of the presence as a student in the new locality.” In the Garvey case the court, in concluding, said: “We have to say in conclusion that, unless the rule laid down in the Goodman case, and followed in the ease at bar, is rigidly enforced, the constitutional provision now construed will be nullified. It may be urged that the enforcement of this rule will render it well-nigh impossible for a student to establish a residence in a seminary of learning, but the very obvious answer is that the letter and spirit of the constitution contemplate such a result. The sojourn of the student is assumed to be temporary, and the law preserves to him his former residence, notwithstanding his absence therefrom.” So said the court of appeals of New York. The cases of Batterman (14 Misc. Rep. 213, 35 N. Y. Supp. 593), and of Griffiths (16 Misc. Rep. 128, 38 N. Y. Supp. 953), are not analogous to the case at bar. The question in those cases was whether a similar provision was retrospective, or prospective only, and the court held that it was prospective only. Those decisions, if rendered by a court of last resort, could have no application to the ease at bar. In People v. Hagan the question arose whether an inmate of a hospital, who performed certain labor there, was “kept at the public expense.” The court, inter alia, said: “The question, then, is, Was the relator ‘kept’ (that is, supported — Silvey v. Lindsay, 107 N. Y. 60, 13 N. E. 446) in the hospital? If so, he neither gained nor lost a residence by reason of his presence there while being so kept or supported.But, if he was simply an inmate of the hospital under a bare license — 'that is, with mere permission to use it as an asylum — then, clearly, he could not gain a residence there while enjoying the maintenance it afforded him. .... It was, in part, at least, to prevent such institutions from being utilized for political purposes, that this provision of the constitution was adopted. That provision would be practically nullified were the courts to favor mere devices like thb present, whereby it is sought to turn these penniless and homeless inmates into contract employees and genuine residents. Efforts of a similar character in other directions have been numerous, but they have uniformly failed. (Silvey v. Lind — 705 — say, supra; People v. Cady, 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399; In re Goodman, 146 N. Y. 284, 40 N. E. 769; In re Garvey, 147 N. Y. 177, 41 N. E. 439.)” The New York cases lay down with certainty the rule that under this constitutional provision the presence of the inmate of the soldiers’ home therein must be eliminated — disregarded—in determining whether he is entitled to vote in the election district or precinct where the home is situated. Eliminating the presence -of the forty inmates of the soldiers’ home whose votes are here in question, it is palpable that they were not entitled to vote in the soldiers’ home precinct in Ada county at the election in November, 1900, for the reason that they had not resided in Ada county the thirty days preceding the election, as is required by section 2, article 6, of the constitution. Michigan has, and had prior to the adoption of our constitution, the same provision under consideration here, which the supreme court of that state said was copied from the constitution of New York. (See Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L. R. A. 215.) In that case the Michigan court followed and approved the decision in Silvey v. Lindsay. After quoting from Webster to show the meaning of the term “asylum” — “an institution for the protection or relief of the unfortunate” — and demonstrating that a soldiers’ home, like the one in question here, is an asylum, the Michigan court says: “It follows that one’s entry and residence in such an institution partake of the same character as the institution itself, and are likewise eleemosynary in character. One entering them cannot, Tinder the constitution, gain or lose his residence. Inmates of the home enter it for one purpose only, and the constitution solemnly and clearly declares that their status as to residence when they enter must control while they remain there. When Mr. Carpenter entered the home, he was a legal resident of the township of Woodstock. He entered the home upon his own application, solely as a beneficiary, and a resident of that township, to accept a well-bestowed and deserving charity. He did not, by this act, lose his residence there, and his intent is wholly immaterial. To permit his intent to control would result in the practical annulment of this provision of the constitu — 706 — tion. The mischief intended to be avoided is as apparent in this case as in any. The inmates of the home own no property,, pay no local taxes, do no work in or for the municipality, and have no pecuniary interest in its local affairs. In fact, they have no connection with, and stand in no relation to, the local municipal government. They occupy state property, and are exclusively under the control and management of the state.” The court, in Wolcott v. Holcomb, clearly suggests the reasons for incorporating this provision in the constitution, and points out some of the evils that would result from adopting the construction which respondent insists should be adopted. The court in that ease also shows conclusively that the interpretation of the decision in Silvey v. Lindsay, asked by respondent here is not the correct one, and should not be adopted. Kansas has the same constitutional provision that is being 'considered here, and its supreme court has given to it the same construction that the New York court of appeals and the Michigan supreme court gave to the same provision in the eases above-cited and quoted from. The Kansas supreme court, in Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Rep. 631, 50 Pac. 600, has construed this identical constitutional provision, and held that under it an inmate of a soldiers’ home cannot, by presence in such home, acquire the right to vote in the voting district where the home is situated. The opinion in this casé-is very instructive, and clearly shows that such a home is an asylum (in the language of the court, “place or retreat or shelter”); that the thirty days’ residence next preceding the election in the county where the person offers to vote is not acquired by presence in such an institution; and that the inmates of such institutions are entitled to vote at the place, of their residence at the time they leave the same to enter the institution, which residence, for voting purposes, cannot be gained or lost by presence in such institution, whatever the intent of' the inmates as to future residence or abandonment of the old residence may be. This case is on all fours with the case at bar. In the stipulation of facts — like the one at bar — it was-'agreed that “these inmates abandoned their former places of abode with no intention of returning thereto, and took up their707 residence at the soldiers’ borne with the intention of permanently remaining there; such of them as had famibes removing them and their household goods and other personal belongings.” We quote from the opinion in the Kansas case, which, so far as the stipulation of facts is concerned, goes to the full extent of the stipulation of facts in this case, and .further, too, making even a stronger case' for the inmates than the case at bar. The court then discusses and considers the different decisions, showing that the New York and Michigan courts took the same view of the proper construction of the provision under consideration as did the Kansas court, saying: “The decisions upon the precise question are few in number. But three have been called to our attention. Those of Wolcott v. Holcomb, supra, and Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444, are to the same effect as the one we make. That of Stewart v. Kyser, 105 Cal. 459, 39 Pac. 19, is in opposition. It also appears, by records of the United States district court for this district, which have been called to our attention, that in an unreported case, entitled ‘United States v. Rowdebush,' being an indictment for illegally voting at an election for representative in Congress, a decision similar to that of the supreme court of California was made upon an agreed statement of facts; but we are constrained by what we regard as the true interpretation of the constitution, derived out of the settled and authoritative meaning of the words used, to follow the New York and Michigan decisions, and hold that, notwithstanding the abandonment by the veterans in question of their former places of abode and their settlement at the soldiers’ home with the fixed intention of remaining there, they cannot acquire a residence at such home for voting purposes.” In Stewart v. Kyser, 105 Cal. 459, 39 Pac. 19, the supreme court of California has given this constitutional provision a different construction, without giving any good reason for so doing. Counsel for respondent argues that we copied or borrowed this provision from California, and are, therefore bound by the construction placed upon the same by the supreme court of California, and quotes authority to the effect that when we adopt a statute or constitutional provision from a sister state — 708 — ibat we adopt the construction of the same placed thereon by such state. This rule is correct so far as constructions placed upon the statute or constitutional provision before its adoption are concerned, but not as to those subsequently made. The California case cited supra was decided some five rears after we adopted our constitution. More than that, it is apparent to one who will give the necessary study and investigation to the subject, that this state, California, Michigan, and Kansas all adopted the constitutional provision under consideration from the state of New York, and for that reason should follow the construction placed upon the same in Silvey v. Lindsay, supra, and other eases decided later by the court of appeals of that state. The decision in Silvey v. Lindsay was made in 1887, three years before we adopted the provision under consideration — an additional reason why we should follow the construction given in the decision in that case. But the rule of construction invoked by counsel for respondent was not obeyed, but violated, by the supreme court of California, in Stewart v. Kyser, supra. Yet we are asked to follow the decision in the latter case. We should not do so, especially as it would, as held by the New York, Michigan, and Kansas cases cited, "nullify” the constitutional provision under consideration. A labored effort has been made on behalf of the respondent to distinguish the case at bar from the cases of Silvey v. Lindsay, Lawrence v. Leidigh, and Wolcott v. Holcomb, supra, by showing that inmates in the New York, Michigan, and Kansas soldiers’ homes must, under the provisions of the laws creating them, be indigent, while the inmates of the soldiers’ home here need not be, and are not, indigents. But this makes no difference whatever, as the framers of the constitution did not limit the provisions of the section to indigents, but intended it to apply to all inmates of every asylum — place of shelter, refuge, or retreat — kept at public expense, whether such inmates be indigent or not. The language used must be taken in its natural import, given its usual signification as used in common parlance, and the intent gathered from the language used, it being plain and free from ambiguity, and, thus considered, it is susceptible of no other construction or interpreta — 709 — tion, otherwise the framers of the constitution would not have said “while kept at any almshouse or other asylum at public expense.” In some of the decisions reveiwed here, courts have spoken of various reasons for adopting the constitutional provision which we are considering; but it is not necessary so to do. The language of the provision being plain, and free from ambiguity, courts, in applying it, have no need to look beyond the provision itself to ascertain the reason for its adoption. It is not the province of the court to set at naught the provisions of a constitution made and adopted by the people — the source of all power in a republic — forsooth in the opinion of the court no good reason existed for adopting the provisions. Courts do not make constitutions. They have no right to unmake them, either in whole or in part. It is the duty of the court to apply and give force to all provisions in the constitution, whether they are, in the opinion of the court, wise or otherwise. (See Cohn v. Kingsley, 5 Idaho, 416, 19 Pac. 985.) The construction asked in this case would largely nullify the provisions of section 5, article 6, of our constitution, if it did not unmake that section. This the court has no power to do; and should not, by palpable usurpation of power, overthrow the will of the people as expressed in the constitution. We are cited to a number of authorities showing the rule as to residence and qualifications of voters at common law, but they have no application here. Those authorities are somewhat conflicting, and under them the right of the inmates of the soldiers’ home, whose votes are here questioned, might be doubted. But, as was said by the court in Silvey v. Lindsay, supra, the constitutional provision which we are considering was adopted to settle the law as to the effect of the presence of the inmates at the home upon their right to vote, “and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded.” The object of citing these common-law authorities is to induce this court to hold that the provision in question has no force or effect, and that the right to vote of the inmates is to be determined without reference to this provision; its words, meaning, and intent to the contrary, notwith — 710 — standing. A careful reading of the decisions in Darragh v. Bird, 3 Or. 229, and Wood v. Fitzgerald, 3 Or. 568, show that these cases are not identical with the ease at bar. The provisions there construed are somewhat analogous to the one under consideration here, and the Oregon court followed the decision in People v. Holden, 28 Cal. 123. In the latter ease the supreme court of California held that a soldier serving in the United States army could, notwithstanding a similar constitutional provision, obtain, for voting purposes, a residence in California while serving in said army, notwithstanding that the court there said “that, in determining the fact of residence, presence or absence in the service of the United States shall not be taken into account; or, in other words, neither presence nor absence in the service of the United States is a condition upon which the fact of residence can be affirmed or denied.” Is this not saying, in effect, what the New York court of appeals said in Silvey v. Lindsay, that “the presence” of the inmate in the home must be “eliminated” in determining the residence of the inmate for voting purposes ? Under the language above quoted from People v. Holden, to the effect that presence in the service of the United States cannot be taken into “account” in determining the residence of the one offering to vote, and that the right can neither be “affirmed or denied” upon presence in such service, the right is solely dependent upon the intention of the voter. This conclusion is absurd, and not sustained by authority. It is difficult to see how the California and Oregon courts reached the conclusion .announced in these cases. We are told that residence in the county is an essential requisite to vete; that presence in the soldiers' home is not to be considered in determining this residence. This creates a residence without presence in the county — by mere intention— a thing which the constitutional provision under consideration was intended to prevent. Respondent cites Paine on Elections, sections 47, 69-71, but these sections have no bearing upon the question under consideration. This treatise was written in 1887, and, of course, does not and could not, consider the decisions in Silvey v. Lindsay, supra, Wolcott v. Holcomb, supra, or Lawrence v. Leidigh, — 711 — supra; and nothing in this treatise has any special bearing upon the question as to what is the proper construction to give section 5, article 6, of our constitution. And what we have said us to Paine on Elections is also true of McCrary on Elections (third edition), published in 1887, and written before the decision was handed down in Silvey v. Lindsay, supra. There can be no doubt that the constitutional provision under consideration was borrowed by the framers of our constitution from New York, and the framers of our constitution are presumed to have known of the construction placed upon that provision by the New York court of last resort when they adopted it. That construction gives force and effect to the language of the provision, and has due regard for the common meaning of the words employed, while the construction demanded by respondent, and which California has given to it, emasculates the provision, and leaves it impotent, without life or vitality. Under the construction here given to section 5, article 6, of our state constitution, the conclusion is unavoidable that the forty inmates of the soldiers’ home mentioned in the aforesaid stipulation of facts were not voters in the soldiers’ home precinct, were not entitled to vote for the respondent for the office of county superintendent of public instruction for Ada county, and that said forty votes were wrongfully credited to and counted for the respondent. Deducting these forty votes from the two thousand, two hundred and ninety-nine votes credited to respondent, leaves her with two thousand two hundred and fifty-nine — less than a majority as between her and her competitor, Miss Helen Coston. Miss 'Coston received thirty-one legal votes more than the respondent received, and was entitled to a certificate of election, and the judgment demanded in the prayer of plaintiff’s complaint should have been made and duly entered in behalf of the plaintiff. The judgment is reversed, and the cause remanded to the district court, with instructions to render and enter judgment in favor of appellant in conformity to the prayer of his complaint. Costs of appeal awarded to the appellant.