Uhls v. Allard

The opinion of the court was delivered by Smith, J. : Section 1 of article 5 of the constitution reads : “Every male person of twenty-one years and upwards belonging to either of the following classes— who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election—shall be deemed a qualified elector: “ 1st. Citizens of the United States. “2d. Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.” It is plain from the facts that plaintiff was an elector of the city of Osawatomie after residing there thirty days. He left Paola in July, 1899, and has claimed a residence in Osawatomie ever since. The controversy turns on the application of chapter 232 of the Laws of 1903, entitled : “An act prescribing a rule for the determination of [828] the residence of voters who are officers or employees of this state or any municipal subdivision thereof.” Section 1 reads : “That for the purpose of voting, no person who is in the employment of this state or any municipal subdivision thereof in any civil capacity shall be deemed to have gained or lost a residence by reason of such employment, but all such officers or employees shall be considered as residents of the place from whence they were elected or appointed.” The right of plaintiff to registration as a voter in Osawatomie would be certain but for the last clause of said section, “but all such officers or employees shall be considered as residents of the place from whence they were elected or appointed.” (Cory v. Spencer, 67 Kan. 648, 73 Pac. 920.) It is clear that after plaintiff had established a legal residence in Osawatomie in 1899, and voted there in that year and in 1900, 1901, and 1902, he cannot, by legislative fiat, be constructively deported to Paola and made an elector of the latter city against his will. (Wade, Retro. Laws, § 175.) Section 2572 of the General Statutes of 1901 provides : “First. That place shall be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.” The law of 1903 can mean nothing more than that the state officers or employees in the sérvice of the state, when they move to the capital or place where their official duties are performed, become residents and electors of the latter places if they so intend. Mere employment by the state does not affect the question of residence one way or the other. Taken [829] literally, the words “all such officers or employees ■shall be considered as residents of the place from whence they were elected or apppointed, are inconsistent with what precedes them. In one clause of the section, a person holding an office or employment under state authority is not to be considered as having either lost or gained a residence by that fact, and in the succeeding clause the residence of such officer or employee is fixed at the place whence he was elected or appointed. In view of the foregoing constitutional provision respecting the qualifications of.voters, we must hold that the state officers and employees retain their residences at the places where they lived when elected or appointed, if that is their intention. We have no doubt that the governor and the several justices of this court could establish a residence at Topeka, in Shawnee county, by moving here during their terms of office with the intention of making this city their place of permanent abode. A removal here, however, without such intention, with a purpose to remain during a term’of office only, does not deprive a state officer of his right to vote in the city or county where he lived when elected or appointed, if he did not intend to abandon the latter as a place of residence. The construction of the law contended for by counsel for respondent would prevent an officer or employee of the state, city, county or school district from changing his residence' during his official term, from the fact alone that he was such officer or employee. We ■cannot give to the statute such an absurd interpretation. The clause under consideration, if standing alone and disconnected from the language preceding it, would be manifestly unconstitutional. [830] Under the facts, the city clerk had no discretion to-refuse to enter plaintiff’s name on the poll-books as a. qualified voter. A peremptory writ of mandamus will be awarded. All the Justices concurring.