dissenting.
The Court below found that the defendant received five hundred and thirty-five legal votes and the relator five hundred and thirty-seven, and that finding is regarded as correct by my brethren. For the purposes of the argument I shall make no question except upon the votes of Melindy, McGrew and Whipple, cast and counted for the relator. Deduct those votes from those thrown for the relator, and the majority will be with the defendant. Counsel agree that those three persons while living in the County of Mendocino, were in the service of the United States.
The fourth section of the Second Article of the Constitution 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 of any seminary of learning, nor while kept at any almshouse or other asylum at public expense, nor while confined in any public prison.”
Now, if the persons named acquired a residence in Mendocino County, how or by reason of what fact or facts did they acquire it ? No reply can be given to this question which does not put the fact of their “ presence ” in that county as one of the grounds or “ reasons ” of the result. But that presence was “ while they were employed in the service of the United States,” and therefore “ they shall not be deemed to have gained a residence by reason of it.”
*141The opinion of my brethren goes upon the idea that if a citizen, having a residence in a given county, enters the military or civil service of the United States and goes to another county and lives there, partly for the reason that it is his duty so to do and partly for the reason that he wishes and intends to change his domicile; or goes solely on the score of duty, but being on the ground, concludes to make the new county his permanent home, and manifests this purpose by appropriate conduct, that, in that event, his presence in the new county may avail him notwithstanding he may continue in the public service. The difficulty in. the way is, that the Constitution provides expressly that his presence while in the public service shall not avail him. The fallacy lies in striking out the words “while employed” and inserting the words “as employé.” “While ” goes to time, or duration. “ As ” goes to character or quality. Had the provision been that “ no person shall be deemed to have acquired a residence by reason merely of his presence as employé ,:of the Government,” perhaps such employé might say: “ My presence is not to be referred solely to my employment; I came here for an entirely distinct reason, moving me in my capacity as a citizen.” But the constitutional inhibition has no reference to the man nor to his capacities or purposes as such. It goes, instead, upon the relation which the individual bears to the Government, and provides that “ while ” or during the time that the relation shall subsist, the “ presence ” of the party shall “ for the purpose of voting,” be as though it were not. In the treatment of the point now in question, no use whatever can be made of the “presence ” of Melindy, McGrew and Whipple in the County of Mendocino. If each acquired a voting residence there, it must have been by force of the facts proved—less the fact of the personal “presence” or inhabitancy. But that is impossible.
Further—It is clear that all the different classes of persons enumerated in the fourth section of the Second Article of the Constitution are subjected to a common rule. Whatever is true as to one, is applicable to all. Now, this being given, it *142follows, that a person who having his -residence in a foreign county, should procure admission as a pauper to the almshouse in the City and County of San Francisco, and should be kept there thereafter at public expense, might claim, on the ground of the opinion from which I feel myself compelled to dissent, that he had “by reason of” his “presence” in the county “ while kept in the almshouse at public expense,” acquired a right to vote in the county, in the event he could show that he went to the county, or that after he got there, he remained for a double purpose, viz : to afflict the county by his “presence ” as a jiauper, and to distinguish it by his “ presence ” as a citizen, after the lapse of thirty days. And whatever is true as to a pensioner upon the public charities, is equally true as to convicts in the public prisons.
It is unnecessary to refer to the historical causes that induced the adoption of the constitutional provision under discussion, or to remark that the habits of mind developed under our system of government, leave little room for the operation of those causes here. But, however it may be now, it is apparent that the force of traditional opinions had neither been broken nor seriously impaired at the time the Constitution was adopted. If the views of the people have changed since it is clear that we cannot notice the change so long as the Constitution remains as it is.
Under the views I take of the case, the judgment should be reversed, and judgment be entered in favor of the defendant affirming his title to the office in dispute.