The herald., 1898-10-18
Can the Seventh
Regiment Vote?
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sessssssssssssss sss
BY ABBOTT KINNEY
| The principles of common law governing
the franchise and the state constitution
clearly give the members of this regiment
| the right to vote in thoir home precincts.
The constitution says that for the purpose
of voting, no person shall be deemed to
have gained or lost residence while in the
service Of the United States; while navi-
seminary of learning; while kept at an aims
house or other institution at public ex-
pense or while confined in a public prison.
While the Seventh regiment could gain no
political residence at Camp Merritt, neither
could they lose voting residence here at
home. The members have a clear right to
vote.
Our supreme court, however, has added "a
clause Of It's own to this salutary provision.
The court said in the Napa case that a mans
intention" could nullify this section of the
constitution. If voter in an army, in a
university or in a soldiers home chose to
declare that his Intention" was to make
the garrison or the institution his future
residence, then he could vote from it, and
| as a soldier or as an occupant Of the institu-
tion, the constitution to the contrary not
withstanding.
II we apply this remarkable decision to
the case Of the Seventh regiment, we can
see how embarrassing q vicious precedent is,
and how much trouble a departure from
vantage may cause. If the intention" can
nullify the constitution as to gaining. po-
litical residence, so it can and must in losing
one. The intention" of the Seventh regi-
ment was to proceed to the seat OF war.
When the men enlisted they declared their
Ia e l. ~ g. l.
definite period. They intended to go to
Manila. Many Of the soldiers intended to
remain IN the Philippines or in Hawaii
| after the war, and to take up business op-
portunities in those territories, and so
stated.
The constitution, free from judicial nulli-
ae:tion, positively protects the men % In r:, !.
was when they enlisted and while In the
army. Their intention" implied or ex-
pressed cannot legally infringe their voting
right.
It is unfortunate that the state supreme
court thinks differently. In this it is not
only hostile to my views, but to those OF the
supreme courts of other states, and Of the
constitution protects the members Of the
Seventh in their franchise here, and per-
mits the vote of soldiers absent from the
state or nation to be taken for all elections
during such absence, it also protects com.
munities against the political constraint Of
bodies of massed men, either as soldiers,
| students or as occupants of institutions.
| This is such just and righteous principle
that it seems strange that even one court
of last resort in our states could be found
to nullify and destroy It,
| How it works as a safeguard to the men
of the Seventh shows its value both to the
soldier and sailor often absent during pro-
longed periods.
The voting Of the army in the civil war,
taken in the field but counted in the SOL
diers home precincts, is another instance.
The Kansas soldiers in the field will all
have an opportunity to vote this year at the
Kansas state election. The constitution
on this subject is plain and positive. I'm
der the conditions enumerated person oan-
not gain or lose residence for the purpose
of voting. The intention" of o man has
nothing to do with It. While kept at an
almshouse or other institution at public
expense a man is absolutely prohibited from
gaining a political residence. He is
equally absolutely protected from losing the
one he had when he entered.
The ''intention" of franchise-holder
plays a part in determining whether he
should vote. The question of intention ia
confined, however, to well defined and
limited field. If he has several residences
he may choose or be required to choose
which one he elects to be his voting resi-
dence which is also the residence where he
will be taxed. Or man may remain the
statutory time in precinct without the
intention Of making it his home or residence
under which condition he would not be
deemed an integral part of the community,
and could not vote. In our changed condi-
tions in cities with large part of the popu
few people have a defined intention Of liv-
ing long in any one precinct. Intention
of permanent and future residence, as die
tated by the state supreme court in the
Napa case for the purpose Of nullifying the
constitutional prohibition of army and in
stitute massed voting, cannot be fairly ap
Piled to our city populations. The logical
franchise forty or fifty thousand voters in
this state. The position of the court in it's
notification of law, defiance of logic, and
contempt of the uniform decisions of the
self governing Anglo-Saxon world, outside
of California, is astounding.
The court in the Napa case tacitly ad.
mits that person cannot gain a residence
for the purpose OF voting as soldier in ser
vice or as an inmate of an institution. The
court then goes on to create a new and un-
constitutional method of gaining voting
residence. This new method is the "in-
tention to acquire a domicile." In other
words, where no constitutional voting resi-
QenCe eXlSC6, IL may De acquired Dy OeCldr-
ing an intention in the future to acquire
one. This could nullify Section of Article
ii, as well as Section 4.
Here is the syllabus, or resume, of the
Napa case in full from l05 CAL:
Syllabus, in Stewart vs.. Kyser los
C. S., p. 459 The fourth section of the
second article of the state constitution,
which provides that "for the purpose of
voting no person shall be deemed TO
have gained or lost a residence by rea-
son of his presence or absence while
employed in the service of the United
States, nor while engaged in the navi-
cation Of the waters of this state, or
of the United States, or of The high
seas, nor while student at any semi
nary Of learning, nor while kept at any
almshouse or other asylum at public
expense, nor while confined in any pub
lie prison." does not preclude the gain
ing Of a residence for the purpose Of
voting, by soldiers, college students, or
inhabitants Of a veterans home or In
firmary upon proof Of their intention
to acquire a domicile In the countyof
which they are the inha habitants.
This is an extraordinary piece of Judge
made law.
The court says that the evidence upon the
issue as to the qualifications of Witness
Kilalee is, substantially, a fair sample of
that applicable to each of the other in
mates.
This means that all the invna+os oo,,ld