*CHAPTER XVII. THE EXPRESSION OF THE POPULAR WILL. [* 598] ALTHOUGH by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby devested themselves of the sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people, in their sovereign capacity, can only be of legal force when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, or which, consistently with the constitution, have been prescribed and pointed out for them by statute; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, for the time being, represent legitimate government.1 1 "The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government, the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their constituents. Thus all power possessed by the people themselves is given and centred in their chosen representatives." Davis, Ch. J., in Gibson v. Mason, 5 Nev. 291. See Luther v. Borden, 7 How. 1. Under some of the constitutions certain votes can only be carried by a majority of the electors voting favorably. This must be understood to mean a majority of those voting at the election on any question then sub The authority of the people is exercised through elections, by means of which they choose legislative, executive, and judicial officers, to whom are to be intrusted the exercise of powers of government. In some cases also they pass upon other questions specially submitted to them, and adopt or reject a measure according as a majority may vote for or against it. It is obviously impossible that any considerable people should in general meeting consider, mature, and adopt their own laws; but when a law has been perfected, and it is deemed desirable to take the expression of public sentiment upon it, or upon any other single question, the ordinary machinery of elections is adequate to the end, and the expression is easily and without confusion obtained by submitting such law or such question for an affirmative or negative vote. In this manner constitutions and amendments thereof are adopted or rejected, and matters of local importance in many cases, such as the location of a county seat, the contracting of a local debt, the erection of a public building, the acceptance of a municipal charter, and the like, are passed upon and [* 599] determined by the people whom they concern, * under constitutional or statutory provisions which require or permit it. The Right to participate in Elections. In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who by the constitution of the State are permitted to exercise the elective franchise. The whole subject of the regulation of elections, including the prescribing of qualifications for suffrage, is left by the national Constitution to the several States, except as it is provided by that instrument that the electors for representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State legislature,2 and as mitted to them. Taylor v. Taylor, 10 Minn. 107. Compare Gillespie v. Palmer, 20 Wis. 544; State v. Mayor, &c., 37 Mo. 270; State v. Binder, 38 Mo. 450; Bayard v. Klinge, 16 Minn. 249; Dunnovan v. Green, 57 Ill. 63. 1 Ante, p. *29. See article by Dr. Spear, in 16 Albany Law Journal, 272, in which, among other things, the force and scope of the new amendments to the federal Constitution in their relation to suffrage are considered. 2 Art. 1, § 2. the fifteenth amendment forbids denying to citizens the right to vote on account of race, color, or previous condition of servitude. Participation in the elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy; the prevailing view being that it should be as general as possible consistent with the public safety. Aliens are generally excluded, though in some States they are allowed to vote after residence for a specified period, provided they have declared their intention to become citizens in the manner prescribed by law. The fifteenth amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain specified grounds, and it is matter of public history that its purpose was to prevent discriminations in this regard as against persons of African descent. Minors, who equally with adult persons are citizens, are still excluded, as are also women,1 and sometimes persons who have been convicted of infamous crimes.2 In some States laws will be found in existence which, either generally or in particular cases, deny the right to vote to those persons who lack a specified property qualification, or who do not pay taxes. In some States idiots and lunatics are also expressly excluded; and it has been supposed that these unfortunate classes, by the common political law of England and of this country, were excluded with women, minors, and aliens from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision. Wherever the constitution has prescribed the 1 See Opinions of Justices, 62 Me. 596; Rohrbacher v. Mayor of Jackson, 51 Miss. 735; Spencer v. Board of Registration, 1 McArthur, 169; Van Valkenburg v. Brown, 43 Cal. 43; Minor v. Happersett, 21 Wall. 162. Nebraska, Nevada, New Jersey, Ohio, Oregon, Rhode Island, South Carolina, Virginia, West Virginia, and Wisconsin. Convicted felons are excluded in Alabama, Arkansas, California, Connecticut, Delaware, 2 Story on Const. (4th ed.) § 1972. Florida, Illinois, Iowa, Kansas, Ken3 See Cushing's Legislative As- tucky, Louisiana, Maryland, Minnesemblies, § 24. Also § 27, and notes sota, Mississippi, Nebraska, Nevada, referring to legislative cases. Mc- New Jersey, North Carolina, Oregon, Crary, Law of Elections, §§ 50, 73. Rhode Island, Texas, Virginia, West Drunkenness is regarded as tempo- Virginia, and Wisconsin. Persons rary insanity. Ibid. Idiots and under guardianship are excluded in insane persons are excluded in Florida, Kansas, Maine, MassachuAlabama, Arkansas, California, Dela- setts, Minnesota, Rhode Island, and ware, Florida, Iowa, Kansas, Mary- Wisconsin. Paupers are excluded land (provided they are under in Delaware, Maine, Massachusetts, guardianship as such), Minnesota, New Jersey, Rhode Island, and West qualifications of electors, they cannot be changed or added to by the legislature, or otherwise than by an amendment of the constitution. One of the most common requirements is, that the party offering to vote shall reside within the district which is to be affected by the exercise of the right. If a State officer is to be chosen, the voter should be a resident of the State; and if a county, city, or township officer, he should reside within such county, city, or township. This is the general rule; and for the more convenient determination of the right to vote, and to prevent fraud, it is now generally required that the elector shall only exercise [*600] within the municipality where he has his residence his right to participate in either local or general elections. Requiring him to vote among his neighbors, by whom he will be likely to be generally known, the opportunities for illegal or fraudulent voting will be less than if the voting were allowed to take place at a distance and among strangers. And wherever this is the requirement of the constitution, any statute permitting voters to deposit their ballots elsewhere must necessarily be void.2 Virginia. Persons kept in any poorhouse or other asylum at public expense are excluded in California, Colorado, Missouri, and South Carolina. Persons confined in public prisons are excluded in California, Colorado, Missouri, and South Carolina. Persons under interdiction are excluded in Louisiana; and persons excused from paying taxes at their own request, in New Hampshire. Capacity to read is required in Connecticut; and capacity to read and write, in Massachusetts. 1 See Green v. Shumway, 39 N. Y. 418; Brown v. Grover, 6 Bush, 1; Quinn v. State, 35 Ind. 485; Huber v. Reiley, 53 Penn. St. 112; ante, p. *64, note; People v. Canaday, 73 N. C. 198. Compare State v. Neal, 42 Mo. 119. Where a disqualification to vote is made to depend upon the commission of crime, the election officers cannot be made the triers of the offence. Huber v. Reiley, supra; State v. Symonds, 59 Me. 151; Burkett v. 2 Opinions of Judges, 30 Conn. 591; Hulseman v. Rems, 41 Penn. St. 396; Chase v. Miller, 41 Penn. St. 403; Opinions of Judges, 44 N. H. 633; Bourland v. Hildreth, 26 Cal. 161; People v. Blodgett, 13 Mich. 127; Opinions of Judges, 37 Vt. 665; Day v. Jones, 31 Cal. 261. The case of Morrison v. Springer, 15 Iowa, 304, is not in harmony with those above cited. So far as the election of representatives in Congress and electors of president and vice-president is concerned, the State constitutions cannot preclude the legislature from prescribing the "times, places, and manner of holding" the same, as allowed by the national Constitution, art. 1, § 4, and art. 2, § 1,—and a statute permitting such election to be held out of the State would consequently not be invalid. Opinions of Justices, 45 N. H. 595; Opinions of Judges, 66 A person's residence is the place of his domicile, or the place where his habitation is fixed without any present intention of removing therefrom. The words "inhabitant," "citizen," and resident," as employed in different constitutions to define the qualifications of electors, mean substantially the same thing; and one is an inhabitant, resident, or citizen at the place where he has his domicile or home. Every person at all times must be considered as having a domicile somewhere, and that which he has acquired at one place is considered as continuing until another is acquired at a different place. It has been held that a student in an institution of learning, who has residence there for purposes of instruction, may vote at such place, provided he is emancipated from his father's family, and for the time has no home elsewhere.3 Temporary absence from one's home, with 37 Vt. 665. There are now constitutional provisions in New York, Michigan, Missouri, Connecticut, Maryland, Kansas, Mississippi, Nevada, Rhode Island, and Pennsylvania, which permit soldiers in actual service to cast their votes where they may happen to be stationed at the time of voting. It may also be allowed in Ohio. Lehman v. McBride, 15 Ohio, N. s. 573. 1 Putnam v. Johnson, 10 Mass. 488; Rue High's Case, 2 Doug. (Mich.) 523; Fry's Election Case, 71 Penn. St. 302; s. c. 10 Am. Rep. 698; Church v. Rowell, 49 Me. 367; Littlefield v. Brooks, 50 Me. 475; Parsons v. Bangor, 61 Me. 457; Arnold v. Davis, 8 R. I. 341; Dale v. Irwin, 78 Ill. 170; Story, Confl. Laws, § 43. and depend much upon the same evi- 2 Cushing's Law and Practice of of two or more places; and it may Legislative Assemblies, § 36. 3 Putnam v. Johnson, 10 Mass. 488; Lincoln v. Hapgood, 11 Mass. 350; Wilbraham v. Ludlow, 99 Mass. 587; Dale v. Irwin, 78 Ill. 170. A different conclusion is arrived at in Pennsylvania. Fry's Election Case, 71 Penn. 302. "The questions of residence, inhabitancy, or domicile for although not in all respects precisely the same, they are nearly so, often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in an |