
    Seibold, Respondent, vs. Wahl and another, Appellants.
    
      September 15
    
    October 3, 1916.
    
    
      Elections: Right of students to vote: Residence, hoto determined:' Emancipation: Intention: Temporary purpose.
    
    1. Attendance at an institution of learning for the sole purpose of acquiring an education is not of itself sufficient to establish the student’s residence at that place so as to entitle him to vote-there.
    2. In such a case much weight is to be given to the fact as to whether or not the student is emancipated from his family in the matter of looking to them for a home or a place to which to return or for means of support.
    3. A student who registered at the state university from another place in the state, where his parents reside and to which place he returns in his vacations, and who is dependent, -in part at least, upon that home for his support, was not entitled to vote in Madison, his attendance at the university being for a “temporary purpose merely,” within the meaning of sub. 3, sec. 6.51, Stats. 1915, and his removal to Madison being “without intention to acquire a new residence,” within the meaning of sub. 9 of that section.
    Appeal from an order of tbe 'circuit court for Dane county: E. Ray Stevehs, Circuit Judge.
    
      Reversed.
    
    ' Tbe appeal is from an order overruling a demurrer to tbe complaint.
    In tbis case, as in tbe cases decided herewith of John Gross, Albert Asbabr, and Randolph L. Wadsworth, plaintiffs respectively against tbe same defendants, tbe plaintiffs, each over twenty-one years of age, unmarried, owning no property and paying no taxes to tbe city of Madison, and students of tbe University of Wisconsin, at Madison, presented themselves as intending voters at tbe primary election held in tbe city of Madison March 21, 1910, before the defendants, inspectors of election. Each was examined, as required, by tbe defendants, and upon their respective statements tbe defendants refused to permit each of them to vote at sucb election. Thereupon each commenced an action in tbe circuit court for Dane county against tbe defendants to re.cover damages for sucb refusal. Tbe respective complaints embody substantially tbe examination each plaintiff was subjected to by defendants and upon wbicb tbe right to vote was denied. Demurrers to tbe respective complaints were interposed, and upon tbe rulings on sucb demurrers by tbe circuit ■court appeals were taken to tbis court.
    Eor tbe appellants there was a brief by Richmond, Jack-man & Swansen, and oral argument by Ralph W. Jackman.
    
    For tbe respondent there was a brief by Sanborn & Blake, and oral argument by John B. Sanborn.
    
   Eschwbilee, J.

In tbe instant case tbe facts relied upon by plaintiff to sustain bis right to vote and consequent right ■of action are as follows: His parents lived at Camp Douglas, Wisconsin, from wbicb place be registered at the university .and to which place he returns on his vacations. He came to the university after graduation from the preparatory school, for the purpose of taking a college course and preparing himself as a lawyer, and would not have come to Madison except for that. His expenses at college are paid partly by his father and partly by his own efforts. After graduating he ■does not know where be will go; that depends upon what opportunities offer. He has not in mind any business opening in Madison that he intends to accept after graduation. He never registered as a voter in any other place than Madison. He further said: “I consider tbis my home while in college, and have been advised and believe that under tbe above facts I did not come here for a temporary purpose merely, but tbis is my home within tbe meaning of tbe law of Wisconsin touching my right to vote within tbe city of Madison.”

In these four kindred cases tbe only question raised and argued before this court is as to whether the respective plaintiffs, students at the Wisconsin University, are entitled to vote m the city of Madison. No question is made but that if the facts presented show the plaintiffs are lawfully entitled fi> vote the defendants may be held liable as inspectors of election for such refusal. Gillespie v. Palmer, 20 Wis. 544, 558.

By sec. 6.51, Stats. 1915, the legislature has prescribed rules for determining the qualifications of electors and the following subdivisions of that section are material:

“Second. That place shall be considered and held to be the residence of a person in which his habitation is fixed, without any present intention of' removing therefrom, and to which, whenever he is absent, he has the intention of returning.
“Third. A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or county, town or ward of this state for temporary purposes merely, with an intention of returning.
“Fourth. A person shall not be considered to have gained a residence in any town, ward or village of this state into which he shall have come for temporary purposes merely.
“Fifth. If a person remove to another state with an intention to make it his permanent residence, he shall be considered and held to have lost his residence in this state.
“Sixth. If a person remove to another state with the intention of remaining there for an indefinite time and as a place of present residence, he shall be considered and held to have lost his residence in this state, notwithstanding he may entertain an intention to return at some future period.
“Ninth. The mere intention to acquire a new residence, without removal, shall avail nothing; neither shall removal without intention.”

In determining upon the facts as they appear in the respective complaints as to whether each of these students comes within the requirements of the above statute, certain principles have been declared which are helpful in solving the question.

Although intention is an important element of the status of an elector, yet his own statement as to any such mental resolution cannot of itself control that element in a situation like this. Carter v. Sommermeyer, 27 Wis. 665; Hall v. Hall, 25 Wis. 600, 609.

The general rule is that a man must bare a habitation or domicile somewhere and that he can have but one at the same time for one and the same purpose, and that in order to lose one he must acquire another. Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 509, 122 N. W. 1126; Opinion of the Justices, 5 Met. 587, 589.

Every person can fix his own residence provided he makes it reasonably permanent by intending to return theretp when a temporary job is finished. State ex rel. Small v. Bosacki, 154 Wis. 475, 478, 143 N. W. 175; State ex rel. Hallam v. Lally, 134 Wis. 253, 257, 114 N. W. 447.

Attendance at an institution of learning for the sole purpose of acquiring an education is not of itself sufficient to establish the student as an elector. Opinion of the Justices, 5 Met. 587, 589; Welsh v. Shumway, 232 Ill. 54, 88, 83 N. E. 549; Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, 435.

That mere attendance as a student cannot of itself be sufficient to establish such a status has been expressly provided for in a number of state constitutions. Eor instance, § 3, art. II, Const, of New York, provides: “Eor the purpose of voting, no person shall be deemed to have gained or lost a residence . i . while a student of any seminary of learning.” Under this constitutional provision it has been held that even four years of study and express renouncing of all other homes are not sufficient of themselves to give the status of qualified elector. Matter of Barry, 164 N. Y. 18, 58 N. E. 12; Matter of Goodman, 146 N. Y. 284, 40 N. E. 769. A similar provision is found in Colorado with the same construction (Parsons v. People, 30 Colo. 388, 70 Pac. 689), and in Missouri (Hall v. Schoenecke, 128 Mo. 661, 31 S. W. 97); also in Pennsylvania (Lower Oxford Contested Election, 11 Phila. 641).

Tbis constitutional provision, however, does not seem to add anything to or change the general rule of law. Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, 435; Pedigo v. Grimes, 113 Ind. 148, 13 N. E. 700; Dale v. Irwin, 78 Ill. 170.

Much weight is to be laid upon the fact as to whether or not such student is what is commonly called “emancipated” from his family so far as looking to them for a home or a place to which to return or for means of support. Opinion of the Justices, 5 Met. 589; Putnam v. Johnson, 10 Mass. 488; Dale v. Irwin, 78 Ill. 170; People v. Osborn, 170 Mich. 143, 135 N. W. 921; Berry v. Wilcox, 44 Neb. 82, 89, 62 N. W. 249; Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434; Fry's Flection Case, 71 Pa. St. 302, 311.

Applying, therefore, the standard of the statutory requirements with the aid of the light from the foregoing decisions, we find in the case at bar a student who registers from Camp Douglas, where his parents reside and to which place he returns as opportunity, his vacations, permit, and who is dependent, in part at least, upon that home for his support. His attending the university, therefore, is clearly for a “temporary purpose merely,” under the fourth subdivision of sec. ■6.51. All the facts are much more consistent with Camp Douglas being his home within the meaning of subdivisions second and third of the statute than with Madison being such home. His abiding in Madison, therefore, avails him nothing, for it is the removal specified in the final clause of subdivision ninth quoted above.

In this case we are of the opinion that the defendants were clearly right under the facts as presented to them in denying plaintiff the right to vote, and the order of the circuit court ■overruling the demurrer to the complaint must be reversed.

By the Court. — Order of the circuit court reversed, and •cause remanded for further proceedings according to law.

Siebeciceb, J., took no part.

Tbe following opinion was filed October 10, 1916:

WiNsnow, O. J.

(concurring). Tbe general rules concerning tbe acquirement of a voting residence are prescribed by tbe statute, and these rules necessarily govern tbe present cases. Little, if any, aid is to be obtained from tbe decisions of other courts construing other statutes. Tbe statutory provisions are quoted at length in tbe opinion of tbe court and need not be repeated.

Reduced to a single proposition they seem to mean this in substance: To acquire a voting residence in an election district one must have made it bis fixed habitation (1) for no merely temporary purpose, (2) without present intention of' removal elsewhere or return to bis former abode for residence purposes, and (3) with intention of returning to such habitation whenever absent therefrom. Tbe purpose is not necessarily temporary because it is expected to end at some time more or less remote in tbe future. Practically all human purposes have this quality. So tbe fact that tbe purpose is to gO' to school does not necessarily solve tbe question, although it seems clear that the intent to make change of residence would be less probable in such case and that the evidence of other facts and circumstances must be stronger in order to overcome the apparent temporary nature of the residence than in the ordinary case of removal on account of change of business. The solution must be found by inquiring whether the other statutory requirements are satisfied; and of these requirements the second above named is the most important and seems practically to be controlling, namely, the requirement that there be no present intention (i. e. intention existing at the time of the election) of removal elsewhere or return to the former abode:'for residence purposes. The direct statement of the voter as to his intention is not at all controlling upon this question. It may be overcome by persuasive facts showing the contrary.

On tbis subject two general propositions may be laid down, viz.: If the student has a family of bis own and removes the same to the college town and supports them there, or if, being separated from his father’s family and earning his own way wholly or substantially, he removes to the college town, these are persuasive circumstances more or less conclusive tending to show an acquirement of a voting residence there. If, on the other hand, he have a father or mother living, who maintains a family residence in another town, to which residence the student returns in vacation time, and if such parent supports the student wholly or substantially, these are quite persuasive circumstances tending to show that there has been no change of voting residence, especially if the student registers or describes himself as of such family residence.

Other circumstances, such as the age of the student, the fact, if it is a fact, that he has already been out in the world earning his own living, or that he has already had a voting residence at some place other than the parental home, will be entitled to weight in determining the question. No rule can be laid down which will at once determine every case. Each case must depend upon its own facts.

It will be seen, as said in the beginning of this opinion, that the legislature has laid down the general rules governing these cases. The court can do nothing but apply them. If there be need of change in them the appeal must be to the legislative branch of the government.

MaRshall, J.

I concur in the opinion by the Chief Justice.  