
    Sturgeon v. Korte.
    1. An inmate of a county infirmary, who has adopted the township in which the infirmary is situated as his place of residence, having no family elsewhere, and who possesses the other qualifications required by law, is entitled to vote in the township in which said infirmary is situated.
    2. Such inmate is not under such legal restraint as to incapacitate him from adopting the township in which the infirmary is situated as his place of residence.
    Error to the Court of Common Pleas of Muskingum county.
    The original proceeding was instituted by the plaintiff, Thomas E. Sturgeon, against the defendant, Henry L. Korte, to contest the election of the defendant to the office of probate judge of Muskingum county, at the October election of 1878.
    The defendant’s right to the office depended wholly on the vote of inmates of the county infirmary.
    It appears from the special finding, that the county infirmary is located in Ealls township, in said county, and that forty-six inmates thereof voted at said election in that township; forty-two for the defendant, and four for the plaintiff. If these votes were legally cast, the defendant is entitled to the office; if not, the plaintiff was elected by ten majority.
    The following is the special finding as to the fact of residence :
    “ That each of said persons was, at the time he so voted, an inmate of said county infirmary; and that each of them was admitted into said infirmary from other and outlying townships in said county; that at the time they were so admitted, each and every one of said persons was a resident of, and had a legal settlement in, a township or ward other than Ealls township in said county; and that, at said time, no one of them, or any of them, resided in, or had a legal settlement in, said Ealls township.
    “ That each and all of said persons, at and prior to said election, had been inmates of the .infirmary aforesaid, and actually domiciled therein, for a sufficient length. of time prior to said election, and had other necessary qualifications to entitle them to vote in said Ealls township, if they might or could after becoming inmates as aforesaid, and while such inmates, change their several residences from outlying wards and townships of said county to said Ealls township, and that while so inmates as aforesaid, and for a sufficient length of time before said election, they severally did adopt said Ealls township as their permanent residence, and by such act of adoption and selection of said Ealls township, and not otherwise, did change their several ‘ residences ’ to Ealls township.”
    Upon these facts the court held, that said inmates were legally entitled to vote in said township, and gave judgment for the defendant. To reverse this judgment is the object of the present petition in error.
    
      A. W. Train, for the plaintiff in error:
    Can inmates of the county infirmary situated' in Ealls township, who were received into the infirmary from other townships, acquire, while in the infirmary, a right to vote in Ealls township ?
    
      It is conceded that if a panper he removed from the township in which he resides and has a legal settlement, against his will, to the county infirmary, he does not either lose his right to vote in the former, or gain a right to vote in the latter township.
    To enable a person to change his voting residence, two things must concur:
    1. He must intend to acquire a new residence.
    2. He must actually remove to the intended place.
    Neither the intention without the removal, nor the removal without the intention, avails anything. 75 Ohio L. 17, rule 7.
    It follows, that a person without the power to form the intention, and the liberty of person to carry the intention into execution, can not acquire a new residence.
    Has an inmate of a county infirmary both of these qualifications ?
    The laws of Ohio recognize two classes of paupers:
    1. Those requiring partial relief only. 78 Ohio L. 89, § 25. • '
    2. Those requiring full relief. 74 Ohio L. 32, § 24.
    The second class only can legally become inmates of the county infirmary. 74 Ohio L. 32, §§ 14, 15, and 24.
    Erom these sections of the law, it is evident that whenever it is, by the trustees and directors, determined that a man requires public support, he becomes subject to the officers of the law, and must go to the infirmary.
    It is not the act of the pauper in giving the notice required by the statute that puts the officers of the law in motion, as claimed by defendant. All that is required, is that “ complaint shall be made by some person having knowledge of the fact ” of the persons requiring public relief. Complaint by the alleged pauper is neither required nor contemplated by the statute.
    The trustees do not transmit a statement because someone has given notice or made complaint, but only “ if the trustee be of opinion that the person complained of is in a condition requiring public relief.” And “ if said directors are satisfied that said alleged pauper requires public relief, they shall forthwith direct,” etc. The will of the alleged pauper is a matter of no moment.
    If the person complained of is found to be in condition requiring public relief, willingly or unwillingly, he must go to the infirmary. His person is no less under the restraint of the law, if he be willing than if be be unwilling.
    "W e deny that the pauper, if put in the infirmary by compulsion, can determine to make the township in which the infirmary is located his permanent home, and thereby gain a right to vote therein.
    This would be changing a man’s residence by an act of the will, without the power or the right to remove his body.
    Such power, to “ make the infirmary his, home,” is limited to the one change. It is a power to make one change,, and to one place, and that place must be the infirmary.
    The power to choose or determine a residence implies the power to make any place a residence.
    
      ~We think the poor laws should receive such a construction as will enable the officers of the law to give effect to the benevolent intentions of the legislature.
    In some instances, the officers of the law are required to arrest paupers and remove them to their proper place. 73 Ohio L. 233, §§ 16, 17.
    The case of Freeport v. Board of Supervisors, 41 Ill. 495, is in point; and, see Ill. R. S., 1874, 758, § 33; Payne v. Town of Dunham, 29 Ill. 125; Opton v. Worthbridge, 15 Mass. 237; Reading v. Westport, 19 Conn. 561; Amherst v. Hollis, 9 N. H. 107; Winchenden v. Hatfield, 4 Mass. 124; Andover v. Canton, 13 Mass. 547; Woodstock v. Hartland, 21 Vt. 536; Manchester v. Rupert, 6 Vt. 291; Danville v. Putney, 6 Vt. 512.
    
      Gilbert D. Munson, also, for plaintiff in error:
    The question, in this case, must be determined under the acts constituting paupers. 73 Ohio L. 233; 74 Ohio L. 32, § 24; 75 Ohio L. 15, 16; and the constitution of Ohio, art. 5, § 1.
    It must be conceded that the provision of rule 7, of the act (75 Ohio L. 16), assumes the power or right of the voter to acquire a new residence.
    In other words, free-agency is assumed in the voter.
    It follows, that whenever the intention and power of removal can and do, at one and the same time, become coincident, then, and not until then, can a voter be said to have changed his residence — acquired a new one.
    Can these two things co-exist in the ease of a pauper ?
    Under the laws of Ohio, a pauper is not necessarily a person without property. 73 Ohio L. 240, 241, §§ 29, 31.
    Whether a person may or may not be a pauper, depends upon the directors, whose duty it is made, by the law, to determine the matter. 74 Ohio L. 32, § 24; 73 Ohio L. 239, § 25. '
    Then a pauper, under Ohio laws, is a person who has been “ found,” “ considered ” to be a pauper by those authorized by law to give him a legal status, styled pauper.
    The law makes no provision for a poor person voluntarily becoming a pauper, either by his own application, or compelling a finding to that end, by the directors, in his favor.
    But, assuming that a poor person may himself make the complaint, and desires to “ be found ” a pauper, and to become an inmate of the infirmary: He makes his application. Having thus applied, his volition in the premises ceases. It ends in his own township. After he makes complaint, whether he will or won’t go to the infirmary depends not on him. He has nothing further to do or say about it.
    Volition of mind is not enough. Two things are necessary: first, an intention to remove, and second, a removal. And, as stated, the latter presupposes or assumes the power or right to remove wherever the voter wills. These two things can never be coincident in the pauper; because, until he ceases to be a pauper, there is never a time when he has the right or power of changing his residence. His removal was not his free and voluntary removal (in view of the election laws) ; therefore it was not his removal, but rather a removal of him. The intent to remove must co-exist with the fact. They are two distinct requirements: he declares the intent; that is evidence of his possessing that intent, but it is not removal. .
    How then can he manipulate the removal by the officers into his own act ? Only by adoption sui juris. He can not furnish evidence of actual adoption.
    The intent is one thing, and evidence of intent is another. How can he furnish evidence .of a voluntary adoption of the removal until his liberty is restored ? Any declaration is evidence of intent. An intent to remove when he can, and the burden of proof is on him. The point seems narrowed to the free-will doctrine — we maintaining there is no free will where the body is constrained; the other side saying that if the mind runs the same way as the constraint of the body, there is no constraint; or, in other words, that it is a free, full choice, where there is but one. thing to choose.
    The following authorities are submitted: Guier v. O’Daniels, Am. L. C. 748; 1 Binney, 349 ; Woodstock v. Hartland, 21 Vt. 567; Danville v. Putney, 6 Vt. 518; Pawlet v. Rutland, Brayton (Vt.), 179; Dale v. Owen, 78 Ill. 181, and 41 Ill. 506, and cases there cited; Covode v. Foster, 2 Bartlett, 600; Taylor v. Reading, 2 Bartlett, 661; Monroe v. Jackson, 1 Bartlett, 98; Cranford v. Wilson, 4 Barbour S. C. (N. Y.), 504; Cadwalader v. Howell & Moore, 3 Harrison (18 N. J.), 138.
    
      M. M. Granger, with whom was John O’Neill and F. H. Southard, for defendant:
    As to what constitutes “ residence,” see Horton v. Horner, 16 Ohio, 147; Sink v. Reese, 19 Ohio St. 307; Renner v. Bennett, 21 Ohio St. 449.
    
      The admission of inmates to a county infirmary is regulated by statute.
    In all the legislation in this state on the subject, no authority is given to any official to coerce a pauper, who has a settlement in the county, to enter the infirmary. We find a “ complaint,” which may be made by “ some person ” (as well by the pauper as by anybody). This complaint makes it the duty of the township trustees'to visit the pauper, ascertain facts and report, in certain contingencies, to the infirmary directors. ■ These directors may “ direct their superintendent to receive the pauper,” and they are not to transport, but to “furnish transportation for” the pauper. And, lastly, the superintendent is to receive the pauper upon his (the pauper) “ producing to him (the superintendent) such an order or voucher as is provided for.”
    It is clear, therefore, not only that the statute has provided no mode of forcing a pauper to enter the infirmary against his own will, but that it has expressly recognized his right to enter or not, by leaving to him the operative function of producing the order or voucher.
    So as to an inmate’s stay in the infirmary. There is not one word in the statutes touching infirmaries and the poor, from end to end, even implying that an oificial can keep him there one moment longer than he is willing to st-aju There are rules and regulations of the infirmary, that the iumate must comply with, or he is subject to be discharged, but there is no power to keep. Benner v. Bennett, 21 Ohio St. 433.
    The mere fact that a pauper goes to the infirmary and stays there, raises no “presumption” that he intended to change his home. But if proof be made of the additional facts, to wit, that he there claimed and exercised rights belonging to him only in case he purposed to change his residence, and if he testifies that he did consider, regard, and hold that his home was at the infirmary, then, and in that case, the court ought to find that his residence is changed. It is, then, no longer a question of inferring- or presuming an intent from conduct that is equally consistent with an intent to change or an intent not to change, and is a case where the intent is positively proved.
    The Ohio legislature can say for how many months or days a voter must “reside” in his county or precinct before he can vote. But whatever “ l’eside ” meant in. 1851, when the constitution was adopted, it still means — no more — no less. And the general assembly can not say what he must do or omit to do, in order to change his residence ; nor can it in any way resti’ict his right to so change, so far as concerns his right to vote. Our legislature has said: “The mere intention to acquire a new residence, without the fact of removal, shall avail nothing; neither shall the fact of removal without the intention.” S. & S. 341.
    That statement is true, but it derives all the force that belongs to it because it is true, and not because it was enacted by our legislature. As to whether it is a valid enactment or not, is immaterial. What does it mean ?
    Its last clause means exactly what is expressed by those words, to wit: “Neither shall the fact of removal without the intention to acquire a new residence.” These two facts need not begin to exist at the same time. It is enough if they coexisted for the statutory number of days before the election. Nor is it necessary that the “fact of removal” should be the act of the voter. If an actual removal has occurred, it matters not how or by whom or with what intent it was made, it nevertheless constitutes “ the fact of removal.” Whenever, after such removal, the voter determines to recognize it, and to adopt his new “ locus” as his home, and he does so adopt it, from that moment his change of residence is complete, and from it the days must be computed.
    Before an act can be declared void because of “ duress,” it must appear that the act was forced by the duress. Even if the pauper be taken to an infirmary and retained there against his will, that does not deprive him of his right to his former residence. He can, in such case, regain that right, if he desires so to do. Whether he decides to surrender that right, or to retain it, can make no difference in his position under the poor laws. Neither those laws, nor the lawful proceedings of the authorities under them, are intended to in any way affect that right. Any decision he may make as to that right is his own. If duress be charged, he alone, or those claiming under him, can plead it; he or they alone can avoid his act. The state, which by its laws exerted all the force there is, if any, in the case, can not disfranchise him under pretense of protecting his free agency. The rule avoiding acts done, or contracts made, under duress, was made law for the protection of the victim of force. What name ought to be bestowed upon an attempt to deprive a man of his constitutional right to vote, by using against him a rule that was created solely for his protection, and for his sole use?
   Boynton, J.

The right of the contestant to the office of probate judge of Muskingum county depends on the solution of the question, whether the inmates of the county infirmary, located in Ealls township in that county, who, at the time they were received into the infirmary, were residents of other townships, and who voted in said Falls township at the October election of 1878, were, under the special finding of facts entitled to vote in that township.

The constitution provides, that “ every (white) male citizen of the United States, of the age of twenty-one year’s, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.” Article 5, § 1.

Section 4 of the same article provides, that the general assembly shall have power to exclude from the privilege of voting, or of being eligible to office, any pei’son convicted of bribery, perjury, or other infamous crime ; and, by section 6, it is provided, that no idiot or insane person, shall be entitled to the privileges of an elector.

These are the only provisions of the constitution that relate to the qualification of electors, and they confer on all persons having the requisite qualifications of sex, age, and residence, the right to vote at all elections, except idiots and insane persons, and such other persons as may have been denied or excluded from the privilege by reason of their conviction of some infamous crime.

Therefore, if not an idiot nor insane, and he has not been excluded from the privilege of voting for crime, the right of an inmate of a county infirmary to vote is as fully guaranteed and secured to him by the constitution as that of any other citizen. The question then comes to this : Is an inmate of a county infirmary, having his residence when received into the infirmary in a township other than the one in which the infirmary is situated, incapacitated from forming a purpose or intent to change his residence ?

While the question is not free from doubt, we incline to think he is not. The word “ residence,” as used in the constitution, has substantially the meaning of “habitation,” “ domicile,” or “ place of abode.” The law ascribes a domicile to eveiy person, and no person can be without one.

In Bell v. Kennedy, L. R. 1, H. L. 320, it was said by Lord Westbury, that domicile is the relation which the law creates between an individual and a particular locality or country. And by Judge Story, in his Commentary on the Conflict of Laws, that it is of three sorts :■ domicile of birth, domicile of choice, and that which results from the operation of law. § 46. Domicile of birth remains until another is chosen, or where a person is incapable of choosiug, until one results by operation of law. To acquire a new residence or domicile, where one is under no disability to choose, two things must concur — the fact of removal and an intention to remain. The old domicile is not lost or gone until the new one is acquired,facto et animo. It is not, however, necessary that the purpose to acquire a new residence should exist at the time of removal. It may be formed afterward. A residence may be acquired by one who has removed to a place for temporary purposes only, by a change of purpose, and an election of the new habitation or place of abode as his place of future domicile or home. Story’s Conflict of Laws, § 89. In such case the old residence would be gone, and the new one acquired from the point of time when the intention to adopt the new residence was determined upon and fixed. “In a strict legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Ibid., § 41.

It is not, howmvcr, necessary that he should intend to remain there for all time. If he lives in a place, with the intention of remaining for an indefinite period of time, as a place of fixed present domicile, and not as a place of temporary establishment, or for mere transient objects, it is to all intents, and for all purposes, his residence. § 46. Bruce v. Bruce, 2 Bos. & Pull. N. 228; Sears v. City of Boston, 1 Met. 250. These' are well settled rules relating to the selection or change of residence, existing when the constitution was adopted, and consequently apply in all cases where a change of residence results from or depends upon choice. The question is, and must always remain, one of fact, often attended with much difficulty; but to be determined by the preponderance of evidence favoring one place as against another. Residence resulting from the operation of law supervenes upon a disability to make choice. Minors being incapable of acquiring a domicile, retain that of their parents. A married woman takes the domicile of her husband; an illegitimate child that of its mother. An insane person may take that of his guardian. Trustees of Jackson Tp. v. Trustees of Polk Tp., 19 Ohio St. 28. A person under confinement for crime can not adopt a new residence until discharged from imprisonment. Such disability is said to arise from the general principle that a person under the power and authority of another possesses no right, or is incapacitated, to choose a residence. Story’s Conflict of Laws, § 46. But this incapacity does not necessarily attach to the condition of an inmate of a county infirmary. That he is under a species of restraint there is no doubt. It is also true, that he can not exercise that freedom of choice that may be exercised by one lesa needy and helpless, and less affected by circumstances. But very many persons in indigent circumstances, living upon the bounty and charity of others, are, as respects their ability to form and execute the purpose to select a new residence, affected similarly to those who are inmates of an almshouse. The permanency of their residence must largely depend on the continuance of such charity.

Yet no one doubts the legal capacity of one so situated to change, his domicile at pleasure. Laws regulating relief for the poor, and prescribing the conditions on which it will be furnished, including the settlement necessary to enable one to obtain it, and those that regulate the right to vote, have no necessary relation. The words “settlement” and “ residence ”, are not necessarily of the same import. The former derives its meaning from the statute, while the force and effect of the latter are to be drawn from the sense in which the word “ resided ” is used in the constitution. It is provided by the constitution of many of the states, that no inmate of an almshouse or asylum shall acquire a residence there, while receiving support at the expense of the public. This inhibition evinces an understanding in such states, that, without such provision, the particular circumstances would not prevent the inmate from acquiiing a new residence at the place where the almshouse • or asylum was located. The inmate of an infirmary in this state is not restrained of his liberty, nor kept in the infirmary against his will. He is under no such restraint as prevents him from removing from the infirmary to any other place in the township, if he chooses to do so.

The court below specially found that each of the persons whose right to vote in Falls township is drawn in question, possessed the necessary qualifications to entitle them to vote therein, if they could, after becoming inmates of the infirmary, change their respective residences from other townships in said county to that township; and that while such inmates, they severally did adopt said Falls township as their permanent residence; and by such act of adoption and selection, and not otherwise, did change their residence to Falls township.

This, we think, they were competent to do. Persons may be, and often are, so needy and helpless as to make it reasonably certain that the remainder of their days will be spent in the infirmary; and when this is the case, the infirmary is to such persons, in the full sense of the term, their habitation or home. If the inmate is a voter, and has no family in another township, and has adopted the infirmary as his abode, looks upon and treats it as his home, and has been sufficiently long a resident, he is entitled to vote at all elections in the township wherein the infirmary is situated.

Judgment affirmed.  