Stewart v. Kyser

The Court. is a proceeding by which the plaintiff contested the election of the defendant to the office of public administrator of the county of Napa, on the ground that a number of votes cast and counted for defendant, more than equal to the majority by which he had been declared elected, were illegal, solely because the persons who cast them were not residents of the precincts in which they voted.

The court found that defendant had received sixteen hundred and seven-one legal votes, and that the contestant had received only sixteen hundred and fifty-six votes; and thereupon adjudged that the defendant had been duly elected.

The contestant, within sixty days after the entry of the judgment, appealed therefrom on the judgment-roll, including a bill of exceptions as to matters of law and fact.

The bill of exceptions shows that a number of the inmates of the Veterans’ Home, and inmates of the County Infirmary and certain students of the Napa College voted at the election in the precincts of said county in which those institutions are respectively situated; and appellant contends that such inmates and students had not been residents of the county and of the precincts in which they respectively voted during the period of thirty days immediately prior to the election; and, therefore, that they were not qualified electors.

Counsel for appellant have taken the testimony of their witness, Killalee, as a sample of that of some six[462]teen other inmates of the Veterans’ Home who were called and testified at the instance of plaintiff, and correctly represents it as follows: “Killalee came to the county and to the precinct and entered the home as an inmate on November 14, 1891. For some time prior to this date he was living on the charity of relatives and friends in the city and county of San Francisco, where he was an elector. He made and subscribed the usual application, and obtained a permit to enter the home. He says that ‘the reason I went there was because I was in indigent circumstances. Circumstances compelled me to go, and I would not have gone there had it not been for those circumstances. I had no desire to become a resident of the Veterans’ Home or the precinct other than as induced by my indigent circumstances.. Since I have been there I have been maintained and supported by the home. At the time I went there I did not have any fixed intention with respect to the length of time I should stay there: it was my intention to stop there as long as I lived. I have no other interests in the precinct except my relations with the home: I went there with the expectation of living and dying there—making it my permanent home the balance of my life. I have no relatives or property interest in the Veterans’Home precinct. I have no other home. At the time I went there it was my intention to make the home my permanent home. I made it as a home to live and die—as a refuge.’”