Frederick C. (Frederick Charles) Brightly.

A Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities online

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declaring it unconstitutional. Lehman e. McBride, 15 Ohio 8t. R. 678.
And in Iowa, the supreme court, whilst acknowledging the force of the
reasoning of Judge Woodward, in Chase «. lOller, decided that such
legislation was valid, <m the ground that their constitution did not re-
quire a district residence. Morrison «. Springer, 16 Iowa 804. And see
Chandler «. Main, 16 Wis. 848.



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288



McDanibls' Case.

In the Court of Quarter SessiouB of Philadelphia.

MARCH SESSIONS 1844.
(Reported 3 Pbhhbtltawia Law Journal 310.)

[^Electian dMriets,']

An election district is any pari; of a city or county, having fixed bounda-
ries, within which the citizens residing therein must vote ; as, for example,
a ward in the city of Philadelphia.

To constitute a change of residence from one election district to another,
there must be an actual removal.

To reject an illegal vote, it must appear for whom it was poUed ; it can-
not be taken from the majority candidate, unless proved to have been
polled for him.

This was a petition contesting the election of the as-
sessor of the Sixth ward of the Northern Liberties ; the
grounds of contest are fully stated in the opinion of the
court.

GoodnuLtiy for complainants.

H. M. PhillipSj for respondent.

Parsons, J., delivered the opinion of the court. This
case arises on a petition presented by the requisite num-
^ ~ i{ electors of the Sixth ward of the Northern Liber-
asking us to set aside the election for assessor, held
le 15th of March last, upon the ground that the offi-
conducting said election rejected the vote of one
ies Thomson, who, it is alleged, was a qualified voter
kid ward. It appears from the petition and return,
William Jacobs received 818 votes for the office of
sor, and that William McDaniels received 812 votes
;he same office; and it is contended, and, in fact.



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McDanisls' Case. 289

(ElecUon districts.)

proved, that Thomson, a man who claimed to be an elec-
tor, offered his vote for McDaniels and it was rejected;
hence, it is asserted by the complainants, had this vote
been received, the votes would have been even, therefore,
there was no election by the people. The decision of the
case mainly turns upon the question, whether Charles
Thomson had a legal right to vote in the Sixth ward,
from whence this complaint is made. It is clear, from
the evidence, that Mr. Thomson had been an inhabitant
of this ward, for at least twenty years past, that he owned
real estate there, and had paid a county or state tax within
the last year; but it is now contended that, about three
days before the election, he had removed into Penn town-
ship, and therefore, had lost the right of voting in the
Sixth ward.

In the discussion of this case, various questions of law
have been raised by counsel, which are deemed of some
importance ; these we will first dispose of. It is contended,
that admitting Thomson removed out of the ward three
days before the election, as he had not resided in another
for ten days prior to the day when the votes were to be
cast for township officers, and obtained no residence therein,
he had still a right to vote in the ward where he had last
resided, at any election, until he acquired his right to vote
by a ten days' residence ; that the right of sufirage is not
to be lost by a mere change of residence; that the elective
frttnchise, once acquired, is not taken away by a simple
removal from one township to another, till a place of resi-
dence has been obtained which gives him the enjoyment
of this invaluable right to the citizen; while on die other
side it is contended, that each county is an election dis-
trict, and the removal from one ward or township to an-
other, gives to the elector a right to vote wherever his
residence is, although he has not been within the same ten
days.

A correct solution of these questions depends principally
upon a construction of the first section of the third article



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240 McDaniels' Case.

(Election districts.)

of the constitution, and the 68d section of the act of 2d
July 1889, passed immediately after the adoption of the
constitution and based upon it. That part of the consti-
tution referred to is in these words : " in elections by the
citizens, every white freeman of the age of twenty-one
years, having resided in this state one year, and in the
election district where he offers to vote, ten days immedi-
ately preceding such election, and within two years paid
a state or county tax, which shall have been assessed at
least ten days before the election, shall enjoy the rights of
an elector." The 68d section of the act of 1839 is as
follows : " no person shall be permitted to vote at any elec-
tion as aforesaid, other than a white freeman of the age
of twenty-one years or more, who shall have resided in
this state at least one year, and in the election district
where he offers to vote, at least ten days inamediately pre-
ceding such election, and within two years paid a state or
county tax, which shall have been assessed at least ten
days before the election."

The term "election district," as employed in th^ consti-
tution and the act above quoted, may be defined to be, any
part of a city or county, where its boundaries are fixed by
law, either by legislative enactment, or by the adjudica-
tion of a court, or other authority to whom this power is
delegated, where the citizens, within the boundaries thus
established, assemble to vote for public oflScers, whether
their authority is local, or they are to act in governing
the afbirs of the state or nation. This construction of
the law, I think, is fally sustained by a reference to vari-
ous acts of assembly which were in force when the new
constitution was adopted, and which have since been
passed.

The act of the 15th of April 1834, relating to townships
and township officers, provides that each township in the
state may sue and be sued by its known and designated
name; it also gives authority to the citizens within the
boundaries thereof, annually to elect one assessor, a con-



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MoDanibls' Casb. 241

(Election districts.)

stable and other officers tliat are mentioned in the act,
who are to perform certain duties relating to the good
government of the township. Other acts of assembly
authorize every borough to elect an assessor, divide
boroughs into different wards for that purpose, and give
the citizens power to elect numerous officers for a proper
regulation of their municipal affairs ; others give authority
to the electors of the various wards in cities to elect asses-
sors, constables, &c., where the territory embraced within
such wards has been designated by law. Hence, we decide
that these are "election districts;" and it was in reference
to such legally-constituted parts of counties or cities, that
it was intended those words should apply; it is an expres-
sion in common use, and perfectly understood by the people,
as denoting any such portion of territory, whether coming
under the name of township, borough, ward or district ;
nor was it intended by the law-making power, to have a
more extended application, as I think is manifest from
other parts of the act of the 2d of July 1889.

The 51st section of that act provides, that " the election
for assessors in the several townships, wards and districts
in this commonwealth, shall be conducted under the same
regulations as are hereinbefore provided." In this section
the term "district" is used; so also in other sections of
the same act which will soon be mentioned, and that, in
connection with wards and townships, and not designed
to have a more extended signification — ^not intended to
embrace a whole city and county. And a residence of ten
days was not to be in any part of a city or county, but
must be in some " election district," where the citizens
had a right to assemble and vote for public officers, and
where none could vote but those who had been domiciled
within those designated boundaries, for at least ten days
immediately preceding the time of holding an election.

Other sections of the act contain almost the same
expressions, and denote a similar application, and at all
times appear to have relation to election purposes. The
16



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242 McDaniels' Casb.

(Election diftricts.)

3d section provides, tliat the qualified citizens of the several
wards, districts and townships shall meet, in every year, at
the time and place of holding the election for constable of
such ward, district or township, and then and there elect, as
hereinafter provided, two inspectors and one judge of elec-
tions. The 6th section declares, that the judges of the elec-
tion, within the limits of their respective wards, districts
or townships, shall have power, and are hereby required
to decide on the qualification of any person claiming to
vote at an election, Ac. The 7th section of the same
law provides, that when any township has been or shall
be divided in forming an election district, the qualified
citizens of each part of such divided township shall seve-
rally elect, in the manner, and at the time and place afore-
said, two inspectors for each of said several election dis-
tricts, and shall also elect one person to serve as judge of
elections in each district, to perform the duties enjoined
by the 6th section of the act.

I am aware that a city or county is authorized by law
to elect one or more representatives to the state legislature,
a senator or a member of congress; and in some statutes,
this is called an election district. It is an election district
for that special purpose, but it would be more proper to
call it a representative, senatorial or congressional district,
and in common conversation, it is generally so denomi-
nated ; it caimot be said, with any propriety, liat it is such
an election district as is referred to in the constitution.
Would any one seriously contend, that an elector could
vote in any part of the county, by reason of his residence in
it, simply because it was entitled, under the enumeration of
its inhabitants, to elect two members of assembly and a
member of congress? If so, then we may call the whole
state an election district for the election of a governor (and
a man could vote in any part of the commonwealth), with
the same propriety, that a city or county is to be denomi-
nated an election district, under the constitution or the act
of 1889.



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McDanibls' Cask. 243

(Election districts.)

If we have given a correct definition of the term "elec-
tion district/' then it is clear, that no citizen has a right
to vote at any election, unless he has resided in the ward,
township or district where he offers his vote, at least ten
days preceding such election ; and it is equally clear, that
he must vote in the ward, township or place where he re-
sides at the time the election is held.* If he has lost his
residence in a ward, township or district, hy a removal,
although he has not obtained another, still he cannot return
to his last place of inhabitancy, and claim the right of
voting, because the law and the constitution require that
he shall vote in the election district where he shall have
resided ten days immediately preceding the election ; and
the loss of three days' residence is as effective, as to his
legal rights, as three hundred. There can be but one place
of domicil, which is instantaneously acquired, and when
once attained, all others are terminated; nor can any ves-
tige of the last residence be retained for election purposes.

It has been strenuously contended, that no citizen is to
be disfranchised, that the right of an elector, so dear, is not
to be taken away by a mere change of residence from one
side of a street to another. Perhaps, it is a sufficient reply
to this argument, to say, that the constitution gives this
right to an elector, on three conditions : one is, that he
shall have resided in the state one year; the second, ten
days in the election district where he offers his vote, im-
mediately preceding the election; and the third, that he
has paid a state or county tax within two years. Now, if
a citizen violate either of these conditions, his right to
vote at that election is taken away by his own act: man
is a free agent for most purposes; if, therefore, he should
choose not to pay a tax for two years, and deprive
himself of the elective franchise, can he censure any one
but himself? If it suit the convenience of an elector, or
he find it for his interest, to remove firom one ward to
another, less than ten days previously to an election, and

* See Commonwealtb o. Kuntzman, 41 Penn. St R. 429.



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244 MoDaniels' Casb.

(Blecti<m districts.)

thereby deprive himself of a vote, can he complain of in-
justice, if his vote be refused in the district he has just left,
and in the one to which he has removed, but where he has
not had a residence of ten days? surely not; he violates
one of the conditions of the constitution, to which he has
subscribed, that gave him the original right.*

This the court believe to be the law, and a proper con-
struction to be put upon it, for the purpose of preventing
any avenue to fraud or imposition being opened, and most
clearly we should be doing violence to the constitution
and the law, to give any other opinion. The language is
clear and unambiguous, and in our opinion, admits of no
other fair interpretation; it has been framed in wisdom,
nor would we change its provisions if we had the power
to do so. The elector has all the privileges which any
reasonable being could ask ; he may remove within the
ten days before an election, and lose his right to give a
vote, if he please — ^if the advancement of his interest or
convenience be more dear to him than the right of voting
for public officers. Any other decision might open wide
the gate for illegal voting, which would sully the purity
of the ballot-box; the people have endeavored, by clear
statutory provisions, to protect it from fraud or dishonor,
and covered it with a protecting shield, and we are not
disposed to suffer its sanctity to be invaded. On the con-
trary, we will give every fair interpretation to the law,
which is calculated to guard it with firmer bars and
stronger locks, if possible; public justice demands this,
from those entrusted with the administration of the law.

The next inquiry is, had Thomson lost his residence in
the Sixth ward, before the day of election? It is clear,
that down to the 11th of March last, he resided in the
Sixth ward; that for a few days before, he had been re-
moving his effects into Penn township; he testified, that
his &mily slept, for the last time, in the house he had
occupied in the Sixth ward, on Monday night, the 11th ;

*See State o. Adams, 2 Stew. 239.



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MgDaniels' Case. 245

(Election districts.)

on the 12th, he gave the key of the house to the owner
(although he was compelled to pay rent to the 5th of
April); and the election was held on Friday the 15th of
March. He further testified, that he owned a mill in the
Sixth ward, and carried on his business therein as a manu-
facturer of plaster; that from the 11th until after the 15th,
his family slept in Penn township; that neither himself
nor family slept at the house he had occupied in the Sixth
ward, after the 11th; that on the night of the 12th, he
lodged with his family in Penn township. On Wednes-
day night, he said, he was at work in his mill in the Sixth
ward; on Thursday, he was at the mill, and part of the
time asleep, and staid at his mill for the purpose of attend-
ing to his business, and did not stay for any other purpose ;
was often up all night, as it was too far from his residence
to go from one place to another, without interfering with
his work. He also testified, that from the 11th to the 15th
of March, he took his meals at different places, sometimes
at his own house in Penn township, at others, in the Sixth
ward, and sometimes in the Fifth ward; and the reason he
assigned for taking his meals away from his own house, was,
in consequence of the distance; that it was too far to go
home fix)m the mill; that his wife and children lived and
slept entirely in Penn township; he said, he had always
lived with them, unless separated to attend to his busi-
ness. From the testimony of Thomson himself, it is mani-
fest, that he had lost his residence in the Sixth ward of
the Northern Liberties, before the 15th of March, the day
of election. It is equally clear, that for all legal purposes,
he had gained a residence, was domiciled in Penn town-
ship, on the 12th of March, three days before the election;
he was as much an inhabitant of Penn township after the
12th of March, as if he had lived there for three years, for
all but election purposes.

No principle is better settled, than that residence is
a question of intention. It was decided by this court,
in the case of James Casey, an insolvent debtor, that in



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246 McDaniels' Case.

(Election districts.)

cases involving the question of residence, the inquiry is,
the mind with which a party moves to or from a state.
1 Ash. 126. The determination of this question depends
entirely upon the feet, whether the individual has gained
or lost a residence. There must be an actual removal
to lose a residence; a mere intention to remove, not con-
summated, can neither forfeit the party's old residence,
nor enable him to acquire a new one; the intention must
be followed by an actual removal. Hence, if there be
an intention to remove, for the purpose of acquiring a
new domicil, and an actual removal, with a design of
effectuating that intent, then the old residence is lost and
a new one is acquired ; and such I conceive to be the case
before us.

Thomson began to remove his effects to Peim town-
ship, before the 11th; on the morning of the 12th of
March, he continued that removal; and on the evening
of the 12th, we find him in Penn township, with his family,
where he lodged with them, and where his wife and chil-
dren have continued to reside ever since; this was three
days before the election. His residence in the Sixth ward
was as completely lost, on the day of the election, as though
he had been absent for a year; true it is, he had not ob-
tained the right of voting in another place, because he had
not been in Penn township ten days; but whose feult was
it that he lost his vote? It was his own. If he wished
to continue to enjoy the privilege of an elector, he should
have removed ten days before the election, or delayed the
act until after the 15th of March; it was a right which
he was at liberty to surrender, if he chose. His domicil
was fixed in Penn township; the evidence is, that it was
his intention to remove from the Sixth ward; that inten-
tion was effectuated by an absolute removal on the 12th,
and for all legal purposes was complete and perfect. He
could have but one domicil; his residence could be in but
one place; and his residence in the Sixth ward was as
completely ended, when he left that ward on the 12th of
March, as if he had removed across the river to Camden.



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MoDanibls' Case. 247

(Election districts.)

Suppose Thomson had started, with his family and
effects, for New York, in the train of cars, on the morning
of the 12th of March, had arrived there the same evening,
put his family into a house and continued with them
during the night, and come back here on the 15th, the day
of the election, I apprehend that no one would seriously
contend that he could legally have given his vote. During
the interval, his property in the Sixth ward would have
been liable to a foreign attachment for his debts, if he
had any; and why? because he was the inhabitant of
another state; he was domiciled there; his intention to
leave the state had been effectuated by an actual removal.
The case of Lyle v. Foreman, 1 Ball. 480, is full on this
point; United States v. The Penelope, 2 Pet. Ad. 450,
contains the same principle.

In deciding the question of domicil, as to an elector's
removing from one part of the state to another, or from
one township to another, these rules are applicable. The
framers of the constitution, in 1888, and the legislature,
when passing the act of 1839, were perfectly aware that
the question of residence was fixed by repeated decisions
in this country and in England, and they intended that
the elector should have a fixed, certain abode in a district,
township or ward for ten days; and that he should be
permitted to vote where he then actually resided, and
nowhere else. In our opinion, the residence of Charles
Thomson was in Penn township when this election was
held; he had no legal right to vote in the Sixth ward
of the Northern Liberties, on the 15th of March last; and
the officers of the election performed their duty cor-
rectly, when they rejected his vote.

Another ground presented for setting aside this election
is, that one William McDonald was permitted to vote,
who, it is alleged, was an illegal voter. It appears from
his deposition, that he was bom in this state; that he had
been a sailor for twenty years; that he entered the ser-
vice of the United States, went to the Mediterranean,



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248 McDaniels' Case.

(Election districts.)

and landed from the ship Preble, in Boston, the latter part
of August last; that he had been absent ten years and
nine months, and had a wife and children residing in
the Sixth ward of the Korthem Liberties. He said, he
had paid no tax but an hospital tax of twenty cents per
month, retained out of his wages by the government ; and
on that evidence, he was permitted to vote; he said, that
he voted five tickets, but whom he voted for, for assessor,
he did not know, but that he voted the ticket headed
by John Apple for tUderman ; that it was called the ^^ Apple
ticket."

It is conceded, that this was an illegal vote, and that the
officers of the election had no right to receive it ; and as
an illegal vote was polled, we are asked to take it from the
majority,according to a rule which, it is said, has been acted
upon by committees of the legislature. I think it would
be difficult to produce any case where a committee, in
deciding upon a contested election, have taken the illegal
votes from him who had the majority, if it would change
the result of the election (unless those votes had been cast
for him), and given the office to the minority candidate.
Whatever may have been the practice of committees of
that body, I will not pretend to say ; but we are called
upon to lay down a rule of law for ourselves, and this we
think is a correct one; that if a man have given a vote
who did not possess the legal qualifications of a voter, he
is bound to disclose, on oath, for whom he voted, or that
fact may be established by any other legal proof, and when
it is ascertained for whom he voted, that vote must be
taken from the candidate for whom it was given, f I know
it is said, you caimot compel an elector to disclose for whom
he voted; but this does not apply to one who is not an
elector. When once the fiu^t is made clear, that an indi-
vidual has been suffered to vote, who had no legal right
to vote, the veil of secrecy does not protect him, be-
cause he is not an elector — he is a stranger, an intruder,
and therefore, is entitled to none of the privileges which



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MoDanikls' Casb. 249

(Eleoaon disiriets.)

appertain to legal voters; henoe, he may be compelled to
testify.

But if the individual do not know for whom he voted,
and the fact cannot be established by other evidence,
then the complaint must fail for want of proof, like any
other cause which is lost for want of sufficient evidence
to sustain it; for, it is difficult to see, upon what
principle of justice, we should take this vote from Jacobs,
who has but one majority, thereby change the result,
thwart the will of the people, and give the appointment
of assessor to the county commissioners, when it is quite
as probable the vote was given for McDaniels. Perhaps,
committees of the legislature, in deciding upon contested
elections, have taken illegal votes which had been polled,
from the candidate who had the majority, even where it
would change the result, when it was not disclosed for
which candidate they were cast;* but, I think, in every
such case, it will be found, that a new election was ordered



Online LibraryFrederick C. (Frederick Charles) BrightlyA Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities → online text (page 25 of 71)