
    John F. Sinks v. David W. Reese.
    1. Asylums for disabled volunteer soldiers of the United States are among the “needful buildings” for the erection of which the Government of the United States, through the medium of a corporation created by itself or otherwise, may purchase and hold territory, under the provisions of article 1, sec. 8, of the Constitution of the United States.
    : 2. When territory for such'purpose is so purchased by “ the consent of the legislature of the State in which the same shaE be,” the Government of the United States is invested, under the provisions of the same section, with exclusive jurisdiction over the same and its appurtenances, in all cases whatsoever.
    : 3. The inmates of such an asylum, resident within such territory, being within the exclusive jurisdiction of a government other than that of the State within whose boundaries such asylum or territory may be situate, are not residents of such State, within the meaning of article 5, sec. 1, ■ of the constitution of Ohio; and where the constitution of such State confers the elective franchise upon residents thereof alone, the inmates of such asylum, resident within such territory, are not entitled to vote at any election held within and under the laws of such State.
    *4. In the trial of a contested election for a county office, before a court of common pleas, the general rule of evidence, which requires the production of the'best evidence of which the case in its nature is susceptible, applies in respect to the contents of poll-books, tally-sheets, and the number and contents of ballots cast at an election, in cases where the .proiduction of the same is attainable.
    
      5. The vote of a man otherwise qualified, who is neither a lunatic nor an idiot, but whose faculties are simply greatly enfeebled by age, ought not to be rejected.
    Error to the- court of common pleas of Montgomery county.
    The case is sufficiently stated in the opinion of the court.
    
      D. A. Houle, Young & Gottschcoll, J. A. Schcmcle, and Conover <& Craighead for plaintiff in error:
    
      D..A. Houle for plaintiff in error:
    Poll-books are records required by law to be made and preserved, and furnish the best evidence as to who voted. 1 S. & C. 533-4-5-6; 1 Greenleaf’s Ev., secs. 84, 88, 91, 493; 1 Phillips’ Ev. (4th Am. ed.) ch. 9, pp. 581-2, 592; People ex rel. Burr v. Zeyst, 23 N. Y. 140; Harris v. Whitcomb et al., 4 Gray, 433; Blackwell v. Thompson, 2 Stewart & Porter, 384; Olive v. O'Riley, 1 Ala. 410; People v. Pease, 27 N. Y. 72; People v. Holden, 28 Cal. 123-131-2-3.
    The votes of the inmates of the national asylum, who were legal electors of Ohio before entering it, were all illegally rejected and deducted from the poll of plaintiff in error on the evidence submitted; because, 1. The testimony offered as to their voting at the election was not the best evidence. 2. Under the reservation in the proviso as to the elective franchise, contained in the Ohio act of cession, they were legal voters. 64 O. L. 149; 65 O. L. 208.
    This proviso is not in conflict with the constitution of the United States (art. 1, sec. 8), empowering Congress “ to exercise like authority [exclusive legislation] over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, ' arsenals, dockyards, and other needful buildings.” The asylum is not a fort, or1 an arsenal, or a dockyard, and not embraced in the general phrase “ other needful buildings,” in the sense that phrase was intended by the framers of the constitution. 2 Story on the Const., § 1224; Federalist, No. 43; 1 Metc. 581; Woodbury & Minot, 80, 81; 1 Kent's Com. 429; Cornell's Case, 2 Mason, 60, 91. The asylum is not needful for any national purpose contemplated by the constitution. It is not a work of a purely military or naval character, connected with the defence of the country and operations of war (1 Mete. 581). Neither is its establishment and operation an incident to any of the essential and constituent powers of the general government; but is in the nature of an eleemosynary institution, designed for the care, keeping, and comfort of discharged and totally disabled volunteer soldiers not in or connected with the army, or in any sense in the service of 'the United States. See secs. 1 and 5 of the act of Congress approved March 21, 1866, “ to amend an act entitled £ ah act to incorporate a national military and naval asylum for the relief of totally disabled officers and men of the volunteer forces of the United States.’ ”
    The establishment, then, in its purposes and objects, is a work of generosity simply, resting on moral obligations alone, and not on any constitutional obligation imposed upon or required of the general government.
    It is, therefore, a serious question, and one not free from doubt, to say the least, whether the United States could constitutionally acquire, or the State of Ohio cede, exclusive jurisdiction over the lands occupied by such an institution. And if it could be constitutionally acquired, the theory of the general government and the relations that the State sustains to it, as well as public policy, should forbid the exercise of such a sweeping power by the State over the lands within its territorial limits, and its citizens inhabiting the same.
    If such jurisdiction can be ceded and acquired for such an asylum, yet the object of the cession being of a ££ civil nature, it may be limited by such resei-vations as the State may think expedient for the safety and convenience of her citizens.” 1 Mete. 581.
    
      E. 8. Y~oungy also for plaintiff in error:
    The court erred in admitting persons to prove orally the fact that they voted at the election. The poll-books were the best evidence of the fact, being records required by statute. S. & C. 533; Stewart & Porter, 348; 1 Ala. 410.
    The right of the inmates of the asylum to vote was not affected by art. v. sec. 5, of the constitution of Ohio, because they were not in the military service of the United States, nor were they stationed at any military or naval station.
    They are volunteers out of service; at the asylum by choice, with the right to leave whenever they choose.
    As to the claim that the asylum was within the sole and exclusive jurisdiction of the United States, and that, hence, the inmates are not residents of the State:
    The words “ State,” “ county,” “ township,” and “ ward,” in art. v. sec. 1, of the Ohio constitution, refer to territorial limits — place where.
    
    The lands claimed to have been ceded are “ within the State of Ohio” and the asylum is “located” in the township of Jefferson. 64 O. L. 149.
    If this be true, persons residing at the asylum were residents of the State and township.
    To be entitled to vote, it is not necessary that a person shall remain within thejurisdiction of the State. He may be outside its jurisdiction — out of the reach of its process, not affected by its laws, or required to pay taxes, or perform any duty to the State for years, and yet remain a resident, and entitled to vote.
    The act of cession reserves the right to vote. The power to legislate as to the right of suffrage is jurisdiction. So the State reserved jurisdiction. 1 Metc. 581.
    Tha power to punish for offences against the election laws is reserved to the State as a necessary incident to the reservation of the right of the inmates to vote. But this does not matter while the polls (as in this case) are outside of the asylum. limits. For illegal voting outside, process can reach inside. This 'provision is valid.
    . The provision of the Constitution of the United States (art. 1, sec. 8), giving Congress exclusive legislative power, does not apply to this case; because, 1. The territory was not purchased by the United States but by a corporation, and is not the property of the United States. 2. It was not purchased for the erection of forts, etc.* or other needful buildings within the meaning of such provision — that is, necessary to the execution of the ermmerated powers of the government, of which the care of disabled volunteers is not one. 3. The lands were not purchased by the consent of the State legislature for such purpose. The act of cession is framed upon the presumption that no such consent was necessary to enable such corporation to acquire, lands. It simply cedes to the United States jurisdiction of lands which may be acquired by such corporation.
    There was nothing absolutely requiring such cession. The corporation was then caring for soldiers in the Ohio Soldiers’ Home. It was simply better that the United States should have such jurisdiction, but not essential.
    
    But to acquire such jurisdiction required the consent of the State, and the State having reserved a jurisdiction inconsistent with it, there was not the proper; and full consent; or if the United States, under this section, must have exclusive jurisdiction or nothing, it follows, that the act of cession is void in not giving such absolute consent, and the jurisdiction remains in the State.
    And it is also a question whether, if these are not such needful buildings as are referred to in the national constitution, there was any power in the State to cede, or in the United States to acquire, jurisdiction.
    
      G. L. Vallandigham argued the case orally for the defendant in error, and H. Elliott submitted a brief on the same side.
    They made the following points:
    The national military asylum is a place under the exclusive jurisdiction of Congress, and its inmates are not “citizens ” of Ohio, in the sense in which that term is applied to voters, and, therefore, cannot vote under State laws.
    For the nature of the institution, its organization, government, purposes, and powers, see Laws U. S. Ap. Cong. Globe p. 310, March 21, 1866, session 1865-6.
    For the Ohio act of cession, see 64 O. L. 149; 65 O. L. 208.
    If the “ Home ” was a corporation in the broadest sense, it would not change the law of the case. Osborn v. U. S. Bank, 9 Wheaton, 738.
    But it is only a quasi corporation, supported bj public funds. It is an “ establishment.” :
    Congress has exclusive power of legislation in such places. Const. H. S. art. 1, sec. 8.
    Cases arising on these grounds, not subject to the rules and articles of war, alone cognizable by the United States courts. Const. U. S., art. 3, sec. 2,
    There are good reasons for this authority. 2 Story Const, sec. 1224; 5 Madison Papers, 130 and 510-12.
    The first proviso in the act of cession is no new thing. Every grant since the foundation of the Union contains a similar proviso for serving oiml and criminal process. It is, quo ad hoe, United States process, and not inconsistent with exclusive jurisdiction in the Federal Government. 2 Story Const., sec. 1225 ; 1 Kent, 428-9.
    The second proviso in the Ohio act —
    As to political rights: The State authority is completely ousted. Hence cannot enfranchise the inmates. 2 Story Const., sec. 1227; 1 Kent, 430, 431; Com. v. Clary, 8 Mass. 72, 76-7; 1 Metc. 580, 583-4; Mitchell v. Tibbatts, 17 Pick. 298, 301; People v. Godfrey, 17 Johns. 225; U. S. v. Bevans, 8 Wheaton, 836, 386, 388, 390 (Cond. 275); Cohens v. Virginia, 6 Wheaton, 264 (Cond. 90); U. S. v. Cornell, 2 Mason, 60, 63-6, 96; U. S. v. Ames, 1 Wood. & Minot, 80.
    As to the provision intended to permit certain of the inmates of the asylum to vote:
    How can they be legal voters for State and county officers, unless the State of Ohio has jurisdiction over them %
    
    The State constitution prescribes who may vote in this State, and all others are absolutely prohibited. Art. 5, sec. 1. As to meaning of residence, see Burrill; 5 Metc. 588; Chase v. Miller, 41 Penn. 403.
    A citizen of Franklin county cannot gain a legal residence in Montgomery county by removing to the “ Home ” under a foreign jurisdiction. Ohio Const, art. 10, sec. 2; 2 Mason, 96; Lehman v. McBride, 15 Ohio St. 598.
   Bbinkeehoee, C.J.

At the October election of 1869, the parties to this case were rival candidates for the office of clerk of the court of common pleas of Montgomery county. The clerk of the court of common pleas of the county, with two justices of the peace, proceeding under the statute, within the time prescribed after the election, to make an abstract of the returns of the votes cast in the several election precincts of the county, declared that John F. Sinks was duly elected to the office — he having 6306 votes, while David W. Reese had 6283; showing a majority for Sinks of twenty-three.

Within the time prescribed by law in such cases, Reese filed in the office of said clerk notice in writing of his appeal from the finding and declaration of the clerk and justices, claiming that he had received a majority of the votes cast at said election for the office of clerk. He also in due time served upon Sinks notice in writing of his intention to contest said election, and of the time and place of taking depositions of witnesses, to be given in evidence on the trial of the contest in the court of common pleas.

. At the next term of that court following the election, the case was tried; and the court found that Reese had received a majority of the votes cast at the election for clerk — his majority, as so found by the court, being twenty-seven votes. To reverse this finding of the court of common pleas a petition in error is prosecuted in this court.

It is evident that the case was very zealously contested in the court of common pleas, eighteen bills of exception having been taken by counsel for plaintiff in error, during the progress of the trial, to the various rulings of the court.

We do not deem it worth while to notice, and much less to discuss, all the points thus made and presented by the record; but, as we are of opinion that the court below did err in some of its rulings, to the prejudice of the plaintiff in error, we will content ourselves with a notice of those rulings only.

The leading question in the case arises on this state of facts, as appears from the record. Within the boundaries of one of the election precincts of Montgomery county is situated an institution known in law and in fact as -“ the national asylum for disabled volunteer soldiers.” At the time of the election in question there were a considerable number of disabled volunteer soldiers, late of the army of the United States, staying at, and maintained and provided for in that institution, some of whom were, and others of whom were not, at the time of their entrance therein, resident citizens of this State. Of these persons, thirty in number, who had been inmates of the asylum for more than one year preceding the election, were permitted to vote, and did vote for Sinks. Eight other inmates of the asylum similarly qualified or disqualified, were permitted to vote, and did vote for Reese. It appears from a bill of exceptions forming part of the record, that the court, in making up its finding of the number of votes cast for the parties respectively, rejected the former, and (through inadvertence and oversight, ás we have good reason to believe) allowed the latter; and this is assigned for error.

The question thus presented as to the legality or illegality of the votes of the inmates of the asylum, leads us necessarily to inquire, What is, in law, the character of this institution ? and, What is the legal status of its resident inmates %

And first, as to the character, in law, of the institution. It was established under and in conformity to the provisions of the act of the Congress of the United States of March 21, 1866, entitled “An act to amend an act entitled an act to incorporate a national military and naval asylum for the relief of the totally disabled officers and- men of the volunteer forces of the United States.”

The first three sections of the act provide for “ an establishment for the care and relief of the disabled volunteers of the United States army, to be known by the name and style of the national asylum for disabled volunteer soldiers,” with a board of managers, consisting of the President of the United States, Secretary of War, Chief Justice of the United States, for the time- being, together with nine others_ no two of whom shall be residents of the same State, to be appointed by joint resolution of the two houses of Congress, to have perpetual succession, with power to take, hold, and convey real and personal property, establish a common seal, and to sue and be sued in courts of law and equity; and to make by-laws, rules, and regulations for carrying on the business and government of the asylum, and affix penalties thereto. The fourth section confers power on the board of managers to procure sites and to have necessary buildings erected thereon of sufficient capacity to accommodate the persons to 'be provided for. The fifth section appropriates various forfeited and unclaimed funds in the treasury of the United States to the support of the asylum, and authorizes the acceptance of donations for its benefit. The ninth section provides, “ that all inmates of the asylum shall be, and they are hereby, made subject to the rules and articles of war, and will be governed thereby, in the same manner as if they were in the army of the United States.” And the thirteenth and last section provides, “ that Congress may at any time hereafter alter, amend, or repeal this act.”

Here, then, is an institution invested with corporate powers, established by the government of the United States for its own purposes — the relief and support of its disabled volunteer soldiers. It is placed under the sole control and management of a board, constituted, appointed, and to be appointed perpetually by the government of the United States. It is to be maintained by funds from the treasury of the United States; and its inmates are subjected to and governed by the rules and articles of war of the United-States.

That Congress had the right, under the Constitution of the United States, and with the consent of the legislature of this State, to establish such an institution, we think there can be no reasonable question. By the eighth section of the first article of the constitution, it is provided, “That the Congress shall have power ... to exercise exclusive legislation in all cases whatsoever . . . over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” The power to declare war, and to raise and support armies, is vested in the Congress of the United States. These provisions anticipate the existence of a state of war. Disease and wounds, maiming and disabilities, are the natural and necessary consequences of war; and to leave men maimed and disabled while in the service of the government, unprovided for, would shock not only the sensibilities, but the sense of justice, of all civilized men. Asylums for the disabled soldier -in no substantial sense differ from hospitals in a fortress or in the field. All are alike necessary, and the power to erect and maintain them is incidental to the war power of the government.

The legislature of this State has consented to the establishment of this asylum. By the first section of the act of April 13, 1867 (64 O. L. 149), it is provided:

Section I. That jurisdiction of the lands and their appurtenances, which may be acquired by donation or purchased by the managers of the national asylum for disabled volunteer soldiers within the State of Ohio, for the uses and purposes of said asylum, be, and is hereby, ceded to the United States of America; provided, however, that all civil and criminal process issued under the authority of the State of Ohio, or any officer thereof, may be executed on said lands and in the buildings which may be located thereon, in the same way and manner as if jurisdiction had not been ceded as aforesaid; and provided, further, that nothing in this act shall be construed to prevent the officers, employes, and inmates of said asylum, who are qualified voters of this State, from exercising the right of suffrage, at all township, county, and State elections, in the township in which the said national asylum shall be located.”

The second section of the same act exempts all the property, real and personal, held by the board of managers for the uses and purposes of the asylum, from taxation and assessment, «o long as the same shall remain the property of the United States, for the uses of the national asylum.”

This act of the State legislature, consenting to the establishment of the asylum within her borders, and ceding “ jurisdiction of the lands and .appurtenances ” of .the asylum to the United States, under the operation of the clauses of the eighth section of the first article of the Constitution of the United States above referred to, fixes the exclusive jurisdiction of the general government over this institution, its lands and its inmates, in all cases whatsoever,” except as to the execution of process issuing under State authority.

2. This leads us to consider what is the legal status of persons who become residents upon the grounds, and within the limits of the institution thus within the exclusive jurisdiction of the United States; and how does it affect their claim to exercise the elective franchise íd Ohio, under its constitution and laws ? In passing on these questions, there is little need of speculative reasoning ; for they have been in effect settled by repeated decisions of courts of high and conclusive authority. By becoming a resident inmate of the asylum, a person though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to contribute to her revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdiction of another power, as foreign to Ohio as is the State of Indiana or Kentucky, or the District of Columbia. The constitution of Ohio requires that electors shall be residents of the State; but under the provisions of the Constitution of the United States, and by the consent and act of cession of the legislature of this State, the grounds and buildings of this asylum have been detached and set off from the State of Ohio, and ceded to another government, and placed under its exclusive jurisdiction for an indefinite period. We are unanimously of the opinion that such is the law, and with it we have no quarrel; for there is something in itself unreasonable that men should be permitted to participate in the government of a community, and in the imposition of charges upon it, in whose interests they have no stake, and from whose burdens and obliga 'tions they are exempt. In 1811, the case of Commonwealth v. Clary was decided by the supreme court of Massachusetts. 8 Mass. 72. It was an indictment under the laws and in a court of the State for selling spirituous liquor without license, within grounds purchased by the United States within the town of Springfield with the consent of the legislature of the State, and for the purposes of an arsenal. In the legislative act of consent, a reservation as to the service of State process was made similar to that contained in the Ohio act of consent and cession heretofore referred to. It was held, “ that the territory on which the offence charged is agreed to have been committed is the territory of the United States, over which the Congress have the exclusive power of legislation. The assent of the commonwealth to the purchase of this territory by the United States had this condition annexed to it: that civil and criminal process might be served therein by the officers of the commonwealth. This condition was made with a view to prevent the territory from becoming a sanctuary for debtors and criminals; and from the subsequent assent of the United Spates to the said condition, evidenced by their making the purchase, it results that the officers of the commonwealth, in executing such process, act under the authority of the United States. No offences committed within that territory are committed against the laws of this commonwealth ,• nor can such offences be punishable by the courts of the commonwealth, unless the Congress of the United States should give to the said courts jurisdiction thereof.

“As a consequence of these positions, it is the opinion of the court that they have no cognizance of the offences charged in this indictment, and that the defendant must be discharged.

“An objection occurred to the minds of some members of the court, that if the laws of the commonwealth have no force within this territory, the inhabitants thereof cannot exercise any civil or political privileges, under the laws of Massachusetts, within the town of Springfield. We ara agreed that such consequence necessarily follows; and we think that no hardship is thereby imposed on those inhabitants: — because they are not interested in any elections made within the State, nor held to pay any taxes imposed by its authority, nor bound by any of its laws. And it might be very inconvenient to the Hnited States to' have their laborers, artificers, officers, and other persons employed in their service, subjected to the services required by the commonwealth of the inhabitants of the several towns.

“ It will be noticed that in this decisión we make a distinction between persons who actually dwell within the territory owned by the Hnited States, and the laborers and artificers employed therein, who have their dwelling elsewhere.”

Story, in his Commentaries on the Constitution, treating of this subject, sec. 1227, says “that the States cannot take cognizance of any acts done in the ceded places after the cession; and, on the other hand, the inhabitants of those places cease to be inhabitants of the State, and can no 'longer exercise any civil or political rights under the laws of the State.” Rut it is needless to multiply quotations. Suffice it to say, that to the same ^general effect is the opinion of Chancellor Kent. 1 Com., marginal paging 429, 430, 431; and United States v. Davis, 5 Mason's R. 356; Same v. Cornell, 2 Mason's R. 60; 1 Metcalf, 580; Mitchell v. Tibbetts, 17 Pick. 298.

As for the concluding proviso of the first section of the Ohio act of cession, hereinbefore quoted, and the provision substituted .therefor in the first section of 'the act amendatory thereof (65 O. L. 208), it is unnecessary for us to consider and determine their proper construction and meaning, for the reason that it is not constitutionally competent for the general assembly to confer the elective franchise upon persons whose legal status is fixed as non-residents of the State.

We are of opinion, therefore, that the court below did not err in rejecting as illegal the votes cast by resident inmates of the national asylum for Sinks, and that it did err in refusing to reject as illegal the eight votes of Adams, Combs, Banlcbead, Ott, Eorde, Gray, Lewerdy, and Walking, resident inmates of said asylum, cast for Eeese.

The next point on which we are of opinion that the court below erred in its ruling arises in this way: the .contestar offered in evidence at the trial the depositions of hiipself and of sundry other witnesses, to the effect that he and they, after the. election, had examined the poll-book and tally-sheet made and kept at the election in the sixth ward of the city of Dayton, and had counted the ballots cast at the election in that ward, and that they had found an error in the count and return of the votes in that ward, of fifteen in favor of Sinks and against Eeese. Neither poll-book, tally-sheet, nor ballots were attached to or accompanied the depositions, nor was there any evidence given or offered to show any reason why these were not, or could not be, produced. The plaintiff in error objected to the competency of the depositions as evidence, on the ground that the evidence offered was secondary in its nature, and not the primary and oest evidence of which the case admitted. The court overruled the objection and admitted the depositions in evidence, and the plaintiff in error excepted.

We are unable to find any good reason why the general rule, that the best evidence of which the case in its nature is susceptible Ought to be adduced unless good cause is shown why it is not done, should have been departed from in this case. The depositions admitted in evidence show that the poll-book, tally-sheet, and ballots of the sixth ward were readily accessible, and might have been attached to a deposition, and exhibited to the court. The official return of the votes cast in the ward was made by three judges of the election under their official oaths. Then come the depositions of the contestar himself, and three other witnesses selected by himself, testifying to a mistake of fifteen made in the count. The case illustrates the wisdom of the rule. It would have been far more satisfactory to have had the tally-sheet, poll-book, and ballots themselves to speak for themselves both as to number and contents; and the inspection of these papers by the court itself would, we think, involve no such degree of inconvenience as to justify a relaxation of the rule. The application of this rule to the sixth ward, and other election precincts in respect to which the same question was made, and the error of the court below in counting eight votes cast for Reese by inmates of the asylum, disposes of a sufficient number of votes for Reese to change the result arrived at by that court, and compels a reversal of its finding.

We are furthermore of the opinion that the court below erred in counting for the contestor the vote of one Wortz, whom the testimony clearly shows, we think, to be an idiot; and also in refusing to count the vote of an old gentleman of the name of Davidson, who is not shown by the evidence to be either a lunatic or an idiot, but simply a man whose mind is greatly enfeebled by age. This is not a legal disqualification ; and the reverence which is due to “ the hoary head ” ought to have left his vote uncontested.

As to many other points made by the plaintiff in error, and not herein above referred to, we content ourselves wdth saying that we find no substantial error prejudicial to the plaintiff in error in the rulings of the court below.

Finding of the court of common pleas reversed, and case remanded for new trial.

Scott, Welch, White, and Day, JJ., concurred.  