Dissenting. — I am unable to concur in the conclusion reached by the majority of the court. Counsel for appellant contended that under the provisions of section 5 of article 6 of the constitution of this state the inmates of said soldiers’ home are prohibited from gaining a residence therein for voting purposes, which section is set forth at length in the opinion of my associates. For an intelligent understanding of this ease, reference must be had to the law establishing said soldiers’ home. (Sess. Laws 1899, p. 190.) The first section of said act is as follows: “That there shall be established in this state an institution under the name of the soldiers’ home, which institution shall be a home for honorably discharged Union soldiers, sailors and marines, who served in the Union armies during the war of the Rebellion, and also for the members of the State National Guard disabled while in the line of duty, and veterans of the Mexican war; provided that before any person is admitted to said home, he shall have been a bona fide resident of this state not less than four months prior to making application for admission thereto.” The second section makes an appropriation of $25,000 to carry out the provisions of said act. Section 3 sets apart twenty-five thousand acres of state land for the maintenance of said home. Said act provides for the admission to said home of all honorably discharged Union soldiers, sailors and marines who served in the Union armies during the war of the Rebellion, and also for the members of the State National Guard disabled while in the line of duty, and veterans Of the Mexican war, provided they have been bona fide residents of the state not less than four months prior to making application for admission thereto. Thus each and every of the persons therein named must be admitted to said home on application, whether he be indigent and unable to support himself or not. The twenty-five thousand acres of land set apart by the third section of said act for the maintenance of said home and the repayment to the state *714of the $25,000 appropriated by the second section, if sold at the minimum price authorized by the law for its sale, would produce $250,000. It no doubt will bring sufficient to repay the $25,000 and interest to the state, and leave a permanent fund for the support of said home of $225,000, which, if put at six per cent interest, will bring $13,500 per annum for the support of said home, which is much more than is required at the present time, as shown by the last report of the superintendent thereof. The general government also appropriates $100 per annum for the support of each inmate of said home. It is also shown by the report above mentioned that the total expense or cost for the support of each inmate for the year of 1900 was about $135. I make this statement to show that the continuance of said home is not problematical or uncertain, but to show that said.home is as permanent as are the homes of most of the voters in this state; and also to show that said home was not intended as a temporary home or residence for its inmates, but as a permanent one. All who come within the provisions of said act must be admitted to said home on proper application, whether they be indigent or not, and may remain there as long as they live. It is optional with them, and is not left with the board of trustees to turn them out at its will, as it is under the laws of other states governing homes established in those states for “indigent and pauper” soldiers and sailors. For a right decision of this case the character of this home must be kept in mind. The inmates are not there for temporary purposes, subject to the will of others, but may remain there permanently, if they desire to do so, and conduct themselves as gentlemen. It is conceded that the sole question presented for decision in this case involves the right of the inmates of the soldiers’ home to gain a residence therein for voting purposes. It is contended by counsel for appellant that such inmates are absolutely prohibited from gaining such residence by the provisions of said section 5, article 6, of the constitution of Idaho. In support of that contention they cite Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444; Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Rep. 631; 50 Pac. 600; Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L. R. A. 215; Regis*715tration in Erie, Pa., County Court Co-op. Dig. 1899, vol. 7, p. 2039. The first three eases cited arose under provisions of the constitutions of three respective states similar to the provisions of said section 5 of our constitution, except, however, that the section in those state constitutions contained the clause, to wit, “nor while confined in any public prison.” Section 3 of said article 6 of our constitution prohibits certain persons from voting, and includes thosé “confined in prison on conviction of a criminal offense.” The laws establishing the soldiers’ homes in New York, Michigan, and Kansas are quite different from that establishing the soldiers’ home in Idaho. They provide only for the admission of disabled indigent and pauper soldiers and sailors — those who are dependent upon charity for their support; and they must be discharged or turned out as soon as they become self-supporting. Inmates of those homes were admitted for temporary purposes only, and could not acquire a permanent domicile or residence therein. In Silvey v. Lindsay, supra, the court said; “The intending voter was in Bath [the town where said home was situated] as a mere inmate of the institution, and for temporary purposes”; and held that he was not a legal voter, and say; “But the question in each ease is still, as it was before the adoption of the constitution, one of domicile or residence, to be decided upon all the circumstances of the case.” Why did that court there say that each case must be decided upon all of the circumstances of the ease, if it intended to hold that the one fact that being an inmate of such institution prohibited such inmate from gaining a voting residence? The case of Wolcott v. Holcomb, supra, quotes largely from the opinion in Silvey v. Lindsay. The law that established the soldiers’ home of Michigan and the rules and regulations adopted for its government show that it was a poor house for pauper soldiers and sailors, and the decision in that case clearly indicates that the court so held. It is stated on page 367, 97 Mich., page 839, 56 N. W., page 218, 23 L. R. A., as follows: “If the construction [of the provision of the constitution under consideration] contended for by the relator be correct, it follows that all of the inmates of county almshouses and of prisons and jails are *716electors, at their option, in the townships and cities where those institutions are located.” The matter stated in that quotation from the Michigan case no doubt had a controlling influence in the decision of it. As is stated on page 364, 97 Mich., page 838, 56 N. W., and page 217, 23 L. R. A., as follows t "The mischief intended to be avoided is as apparent in this case as in any. The inmates of the home own no property, pay no local taxes, do not work in or for the benefit of the municipality, and have no pecuniary interest in its local affairs. In fact, they have no connection with it, and stand in no relation to the local municipal government.” Thus it is shown' that that case is very different from the one at bar. The inmates of the Idaho Soldiers’ Home may, and, so far as the record shows, do, own property, pay local taxes, do work in and for the benefit of the municipality, and have a pecuniary interest in its local affairs. The constitution of Michigan hast no prohibited classes as we have in said section 3, article 6, of our constitution. That fact, no doubt, had its influence on the mind of the supreme court in the rendition of said opinion, or, at least, on the minds of the majority of the court, as that opinion was by a divided court (three to two), as Chief Justice Hooker wrote a dissenting opinion, in which Mr. Justice Long concurred. In reply to that statement in the opinion of the majority of said court wherein it is suggested that the inmates of said home own no property, pay no taxes, and do no work for the benefit of the municipality, the chief justice, in his dissenting opinion, very cogently remarks that, "it never has been a requisite to electoral rights that the citizen should pay taxes, do work for the benefit of the municipality, or evince interest in municipal affairs; nor does the right depend upon a wise or even honest exercise of the privilege of the ballot”; that "this proposition is so important a part of the foundation of our institutions that it should not be eliminated or weakened by any unnecessary construction of a constitution based upon civil and political equality”; and that "the true construction of this section should be just what its language imports —i. e., that being kept in an almshouse, or attendance at a college, or employment in the service of the United States, *717or the navigation of the lakes or high seas, does not work a change of residence against the intention or desire of the individual.” If it be a necessary qualification to vote that one towns property, pays taxes, and does work for the benefit of the municipality, no doubt thousands in this state would be disqualified from voting. If that was a reason for adopting said constitutional provision, it ought to apply to all alike, and not alone to the student, soldier, and old veteran.
What we have said in regard to the case of Wolcott v. Holcomb substantially applies to the ease of Lawrence v. Leidigh, supra, and the court apparently rests its opinion upon the New York and Michigan cases, supra, and the further fact that the law establishing the soldiers’ home in Kansas, provided in direct terms that inmates of said homes could not acquire a legal residence while inmates of said home. In Warren v. Board, 72 Mich. 398, 40 N. W. 553, Justice Campbell, after quoting section 5 of article 7 of the constitution of that state, which is the same, so far as the question under consideration is concerned, as said section 5, article 6, of the Idaho constitution, says: “These provisions do not prevent such persons from becoming residents, if such is their purpose, and if they are able to choose.” One class of persons named in said section of the Michigan constitution was those confined in public prisons. They were not “able to choose.” That court held that all of the classes named in said section that were able to choose were not prohibited by the provisions of said section from becoming residents for voting purposes.
The ease of Stewart v. Kyser, 105 Cal. 459, 39 Pac. 19, is a soldiers’ home case, is directly in point, and sustains the contention of respondent. In that case, a number of the inmates of the veterans’ home, and inmates of the county infirmary, and certain students of Napa College voted at an election held in the precincts of the county in which those institutions are situated. The appellant contended that such inmates and students had not been residents of the county and precincts in which they respectively voted during the period -of thirty days immediately prior to said election, and for that reason were not qualified electors. The testimony of one of *718the inmates of the veterans’ home is quoted in said opinion, and it is stated in the opinion that the evidence of said witness upon the issue as to the qualifications of said witness is substantially a fair sample of that applicable to each of the other inmates of the veterans’ home, the infirmary, and the college, whose votes were adjudged to have been legal. Said evidence is 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 make it as a home to live and die — as a refuge.” The question presented in that case was whether or not said witness “Killalee was a legal resident of the veterans’ home precinct, and entitled to vote at the last general election.” It was conceded in that case, as in the case at bar, that said witness had all of the requisite qualifications of an elector, except that of residence; and it was contended there, as here, that said witness could not gain a residence for the purpose of voting at the soldiers’ home, while there, as a beneficiary at public expense, for the reason that the gaining of such is prohibited by the fourth *719section of the second article of the constitution of that state, which is as follows: “For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nOr while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student at any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison.” In reference to that section of the California constitution, that court said: “As construed by our supreme court in the case of People v. Holden, 28 Cal. 137, this section does not have the effect claimed for it by counsel for appellant. In that ease, the qualification of soldiers to vote while employed in the service of the United States was questioned, and it was decided that their presence in Mendocino county, while thus employed in the service of the United States did not ‘preclude them from acquiring a residence in Mendocino, if disposed to do so.’ The court further said: ‘That it was their intention to acquire a domicile in Mendocino county sufficiently appears from the evidence. Such being the ease, there is nothing in the constitutional provision in question (which is merely declaratory Of the common law) which stands in the way of their doing so.’” After quoting the above from the decision of People v. Holden, the court says: “Thus their residence* for the purpose of voting in Mendocino county, was made to depend upon the proof of their intention to make that county their place of residence while there present in the service of the United States, there being no question that they had all other requisite qualifications of electors”; and holds that said decision is clearly in point for respondents. The provisions of the California constitution under which said case arose are identical with our own upon the point under consideration,, and the court, in that opinion, construed said provisions, and gave them the effect intended, to wit, they were adopted for the benefit of, and to enlarge and protect the rights of, those classes, and were not intended to deprive them of a privilege so common in this country. To the same effect is Pedigo v. *720Grimes, 113 Ind. 148, 13 N. E. 700. That case involved the right of a student attending college to vote. The court said: “Taking the view of the testimony most favorable to the appellant, the utmost that can be said of it is that the voters entered the state university at Bloomington without, at the time of entering, having formed a definite intention of making that place their residence, but that they did subsequently determine that it should be their residence. This gave them the right to vote, because there is no evidence that this was not their intention, formed and acted upon in good faith. We think it clear that, if they had gone to Bloomington with the intention of remaining simply as students, and there was no change of intention, they would not have acquired a residence.” Several authorities are then cited, and the opinion proceeds: “Where, however, the intention is formed to make the college town the place of residence, and that place is selected as a domicile, when the person has done this in good faith, he becomes a qualified voter.” Apply the correct and reasonable rule there laid down to the case at bar, and the plain intention of the provisions of said section 5 of our constitution is effected and accomplished, and no one disfranchised by a court-made constitutional provision. In the ease at bar it is agreed that each of the persons whose vote is questioned would testify “that they abandoned their former residences and places of abode with no intention of returning thereto, and took up their residence in said soldiers’ home precinct, Ada county, Idaho, and thereafter resided and continued to reside therein with the intention of permanently remaining and residing there.” Thus it is shown that said persons abandoned their former residence and place of abode without any “intention of returning there, and took up their residence in said soldiers’ home precinct with the intention of permanently remaining and residing in said precinct”; not to be turned out as soon as their physical or financial condition permitted, as the laws of the states of Michigan and Kansas required to be done in those states. The good faith and intention of said persons is not questioned, but it is contended that they cannot gain a residence .in said precinct while an inmate of said home. Apply to the *721above facts — which clearly show intention — the reasonable rule laid down in the Indiana case above cited, and the brave old veterans, whose heroism and self-sacrifice assisted in preserving the unity of the nation, will not be disfranchised by court-made constitutional provisions.
In Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434, which is a college student case, the court, in passing upon the meaning of the word “residence,” as used in the constitution of Maryland, says: “It does not mean, as we have said, one’s- permanent place of abode, where he intends to live all his days, or for an indefinite or unlimited time; nor does it mean one’s residence for a temporary purpose; . . . . but means, as we understand it, one’s actual home in the sense of having no other home, whether he intends to reside there permanently or for a definite or indefinite length of time”; and hold, under the facts of that case, the defendant had a right to vote. In Vanderpoel v. O’Hanlon, 53 Iowa, 246, 36 Am. Rep. 216, 5 N. W. 119 — a college student case — it is held that, to constitute a residence within the meaning of the article of the constitution prescribing qualifications of voters, the fact of residence and the intent to remain must concur. Both of which concur in the ease at bar. In section 69 of Paine on Elections, referring to college students, the author says: “The question of residence is to be determined by all the circumstances of each case. Among such circumstances, the intent of the party, the existence or absence of other ties or interests elsewhere, the dwelling place of the parents, or, in the ease of an orphan, just of age, of near friends, with whom he had been accustomed to make his home in his minority, would, of course, be of the highest importance.” And in section 70 it is said: “Under a constitution declaring that the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town in which such ‘¡seminary is situated, while such residence will not entitle him to the right, it will not prevent its acquisition.” So in the case at bar, under the provisions of said section 5 of our constitution, which is that, for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while residing at the soldiers’ home, the *722mere fact of such residence will not, of itself, entitle him to' the right to vote. Snch residence, however, will not prevent the acquisition of such right. In McCrary on Elections, third edition, section 66, it is stated as follows: “It will be found, from an examination of the authorities, and from a full consideration of the subject, that the question whether or not a student at college is a bona fide resident of the place where the college is located must in each case depend upon the facts, etc. In a word, it is necessary, from a survey of all the facts, to determine whether while at college he is at home, his residence, or temporarily absent from it." It was laid down in Putnam v. Johnson, 10 Mass. 488, in 1813, that the question of residence was one of act and intention as applied to college students, and is still so held by the decided weight of authority and college students, under section 5 of our constitution, are placed in the same category with inmates of our soldiers' home. And said section leaves it with that class of persons to retain the former home as a voting place, or permits them to adopt their present home for that purpose. To the same effect is Opinion of the Justices, 5 Met. (Mass.) 587. In Re Green, (C. C.), 5 Fed. 145, it is held under the provisions in the constitution of the state of New York, in order to prove a residence in an election district something more must be shown than the fact of having lived in marine barracks located within the limits of such district in the capacity of a marine. Many of the cases hold that something more must be shown than mere residence at such home; but none of the cases cited, as I read them, hold that residence at such a home is a prohibition against the inmate gaining a voting residence while residing there, except Wolcott v. Holcomb and Lawrence v. Leidigh, supra.
It is said in Silvey v. Lindsay: “But the question in each case is still, as it was before the adoption of the constitution, one of domicile or residence, to be decided upon all of the circumstances of the case." The common-law rule disqualified those who were indigent or under the dominion of others, which rule embraces many of those disqualified under section 3, article 6, of our state constitution. (1 Blackstone’s Com*723mentaries, Cooley’s ed., side p. 171.) Under the common-law rule no one became an elector merely by reason of bis presence or absence at a certain place. It reqiired something besides mere presence. It required other circumstances; it required intent; it required good faith. The residence must not be for temporary purposes. It must be one’s actual home in the sense that he has no .other home; no place to return to when away, but that one; abandonment of former home. Those are «orne of the facts to be shown to prove intent and good faith in establishing a residence, all of which are shown by the record in this case. The question of residence, as applied to electors, is one of act and intent, as laid down by a long line of decisions of courts and law-writers; and that rule has not been changed by the provisions of said section 5 of our constitution. In the case of People v. Cady, 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399, the question was presented whether a prisoner imprisoned in the Tombs city prison could gain a residence therein for voting purposes. The court held that he could not; that the Tombs was not a place of residence; it was not constructed or maintained for that purpose. The court Isays: “The domicile or home requisite as a qualification for voting purposes means a residence which the voter voluntarily chooses and has a right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention to change it.”
It has been suggested that the fifth section of article 6 of the constitution of Idaho was adopted from the constitution of New York, and that in adopting that provision we adopted the construction placed upon it in Silvey v. Lindsay, supra, by the court of last resort of that state. I have followed that rule as I read that decision, but, if I have not construed it according to its true intent and meaning, I would say, as this court has heretofore said, that the rule referred to is a general rule, but, where such decision places a construction thereon that is clearly erroneous, iniquitous, and unjust, this court is not bound by said rule, and ought not to be bound by such construction. Had the framers of our constitution intended, by the provisions of said section 5, to prohibit inmates admitted from other counties from voting in the county where the home is located, *724why did not they use plain and simple language to that effect ? I have no doubt that they would have done so had they intended to prohibit such persons from voting. The language used in said section 5 is too plain to be misunderstood, and, to construe it to prohibit such inmates as the forty referred to in this case from voting, the prohibition must be read into it, for it is not there as the section now stands. It was said by the supreme court of Oregon, in the case of Darragh v. Bird, 3 Or. 239, after quoting section 4, article 2, of the constitution of Oregon, which is as follows: “For the purpose of voting no person shall be deemed to have gained a residence by reason of his presence or absence while employed in the service of the United States or of this state," and section 5 of the same article: “The question of residence being one of act and intention, the framers of the constitution left the matter entirely to the discretion of the parties themselves.” If the contention of appellants is right, the fifth section of the constitution of Oregon was a work of supererogation, as it positively prohibits soldiers quartered in that state from voting there; and section 4 of said article, so far as the pretended prohibition is concerned, contains the exact words of section 5 of the Idaho constitution. The people, by adopting that provision of the constitution, left the question of residence, where it was before, entirely to the discretion of the parties themselves — that question being one of act and intention; and said: “We will neither enlarge nor restrict the right of persons in this respect, but leave it with them to elect as to where they will claim their residence.” The words, “for the purpose of voting,” etc., clearly indicate that the matter was left with the elector himself to select the place of his residence. The section of our constitution under consideration prohibits anyone from questioning the right of the persons therein named from voting at the place from whence they were admitted to such home, but it does not prohibit them from changing their residence therefrom for voting purposes. The constitution of Idaho prescribes the qualifications of an elector, and authorizes the legislature to prescribe other qualifications if it desires to do so. And the language of Wolcott v. Holcomb, supra, is quoted *725with approval as a reason for the adoption of said section 5 of article 6 of our constitution, to wit, “that the inmates do not own property, do not pay taxes, and do not work for the benefit of the municipality." We would suggest that, had the framers of the constitution desired to prohibit the classes of persons named in said section from acquiring a residence, why was not plain and simple language to that effect used? It is not the province of this court to make any additional qualifications to those provided by the constitution and legislative enactment. The right of suffrage is considered a sacred privilege, and it was plainly the intention of the framers of our constitution to extend that right to all persons except those excluded therefrom by its strict terms. And, if this court has due regard for the rights of the citizen, it will not disfranchise him, or so construe the constitution as to effect his disfranchisement, unless by its strict terms it is clearly required.
Where a constitutional provision is susceptible of two constructions, that construction should be adopted which will protect and save the right of suffrage to the citizen; and the decided weight of authority sustains the construction herein placed upon said constitutional provision. As our government is based upon civil liberty and political equality and the right of suffrage being one of its foundation stones, no person should be disfranchised by construction of the provisions of our constitution which provisions may reasonably be construed in favor of suffrage. Are those old veterans an undesirable and ignorant class in whose hand the ballot ought not to be placed? We think not. But my brothers say their construction of said section of our constitution does not disfranchise them. I admit that it does not in terms, but in effect it does; for, by reason of wounds received in battle, disease, and old age, many of them are unable to return to the counties from whence" they entered said home to vote, and they are as effectually disfranchised as though it were held that they could not vote at all. It was held in the California, Oregon, Iowa, and other cases above cited, under constitutional provisions the same as our own, that, the question of residence being one of act and intention, the framers of our constitution left the matter entirely to the *726discretion of the parties themselves. That provision of our constitution is merely declaratory of the common law, and does not stand in the way of an inmate of said home acquiring therein a residence for voting purposes. It was made to protect his' right to vote, and not to disfranchise him, and it ought to be so construed. While residing at the soldiers’ home, those old veterans are not temporarily absent from home. They are at home. They are there to remain, with the right to remain permanently. They have abandoned the place from whence they came without any intention of returning, and have established their permanent residence at said home in good faith. They had a right to do those things. They had a right to choose, and did those acts voluntarily. They may remain there till death, or leave that home whenever they choose to do so. They are not under the dominion of others, as persons who are in prison or in almshouses subject to the absolute will of others, as was the condition of those persons referred to in the New York, Michigan, and Kansas cases above cited. The residence of the old veterans at said home is their permanent place of abode, as permanent as the residence of thousands of the voters in this state, and is a sufficient residence on which to base the qualifications to vote. The judgment of the court below ought to be affirmed.