Rothfels v. Southworth

CROCKETT, Chief Justice.

John Rothfels, a civilian employee living on a military reservation, petitioned to compel the defendant registration agent to register him for the purpose of voting in the 1960 election. We issued an alternative writ requiring her to do so and it is sought to be made permanent.

The plaintiff, an immigrant from Germany, took employment as a civilian employee of the United States Army in January, 1953, and has since resided upon a military reservation at Dugway, Tooele County, Utah. He obtained his citizenship in February, 1956. On August 2, 1960, he tried to register to vote, but defendant refused to register him, giving as her reason that, “ * * * he has stated to me that he resides on a military reservation and did not establish a residence in any other precinct in the State of Utah prior to this time.” Except for that fact he had all other qualifications to vote.1

The question is presented: Can a civilian living on a military reservation be considered a resident of this state for the purpose of voting ?

The right to vote is an important attribute of citizenship, but it derives from *171the state and may be exercised only upon meeting requirements set up by the legislature.2 Accordingly, it is appropriate to examine the statutes applicable to the problem at hand and in view of the controversy in regard to their interpretation, it is proper to look to their history and background and also to governmental policy to divine their meanings.3

The first section to which we direct attention is what was 20-2-14(11) U.C.A. 1953 of our statutes which was included in our election laws at statehood:

“Any person living upon any Indian or military reservation shall not be deemed a resident of Utah within the meaning of this chapter, unless such person had acquired a residence in some county in Utah prior to taking up his residence upon such Indian or military reservation.”

In 1957 our legislature, by chapter 38, S.L.U.1957 repealed the above section. We think this clearly indicated an intention to remove the disability from voting based solely on the fact of residence on Indian or military reservations. The repeal of that section arose out of these facts: In 1956 in the case of Allen v. Merrell,4 a case involving an Indian’s right to vote, we upheld the constitutionality of the above statute. The United States Supreme Court granted Certiorari 352 U.S. 889, 77 S.Ct. 134, 1 L.Ed.2d 134 and while that review was pending the section was repealed. The parties are in accord that this had the effect of permitting Indians to vote and the appeal was dismissed by stipulation of counsel for the plaintiff, Allen, and the Attorney General. But the Attorney General here argues that it does not similarly apply to persons residing on military reservations. He bases his argument on Sec. 20-2-14(2) which the legislature did not repeal, but amended only by adding the emphasized word, “solely.” It now reads:

“A person must not be held to have gained or lost a residence solely by reason of his presence or absence while employed in the service of the United States or of this state * * * while residing upon any Indian or military reservation.”

The Attorney General places emphasis on the fact that the legislature retained the above section and so reads it as to preclude the plaintiff from establishing a residence for voting purposes because he lives on a military reservation.

On the other hand, the plaintiff argues that this amendment, considered in connection with the repeal of Sec. 20-2-14(11), hereinabove quoted, clearly reflects the *172legislative intent to remove any disqualification to vote based solely on the fact that one resides on a military reservation; and that his right to vote should be determined the same as for anyone else, without such fact affecting his qualification one way or the other.

The defendant cites and relies on numerous cases from other jurisdictions which hold that under their various laws, where a person resides upon a military reservation over which the United States Government has exclusive control, no right to vote exists.5 Notwithstanding the authorities cited, we see no reason why it would not be within the prerogative of the legislature to grant the right to vote to persons residing on military reservations even where the federal government had exclusive jurisdiction, if the legislature so desired, because it is entirely within its province to prescribe the conditions upon which the voting franchise may exist within our state.6 We are not impressed with the fiction that such a reservation is in effect an island and not within the state. That idea may have some validity for some purposes, but the purpose of preventing citizens' from voting is not one of them. We do not regard any of the authorities cited for the proposition that citizens living on military reservations could not vote as so holding under statutes such as ours, and certainly not where there had been a specific prohibition which was thereafter expressly repealed.

Even though the federal government may own and for certain purposes exercise a relatively high degree of control over a military reservation within the state, that control is for the purposes of its military operations and the only legitimate command or restraint it may exercise over civilian employees is that which is consistent with and necessary for such military purposes. The fact that it has and exercises such authority for that purpose does not remove the area from the jurisdiction of the state. Both the federal and the state governments have their prerogatives and duties with respect thereto. To shunt aside the sovereignty of the state in favor of exclusive jurisdiction in the federal government upon a pretext unnecessary to its function would run contrary to the fundamental theory underlying the origin of our government by which the sovereign states created the federal government itself, and exercised caution that it should be a government whose powers were limited to those expressly granted.7

We can see nothing in connection with military purposes that would give rise to army officials needing any such arbitrary power as to deprive citizens residing with*173in the area of any of the fundamental rights of citizenship, and there is no suggestion here that they desire any such authority. In any event it is quite inconceivable that there would be any necessity for such authority to extend so far as to prevent citizens from having the privilege of voting. It seems particularly anomalous for an agency of the state government to be so contending in a situation such as this when there is no occasion for making such a claim on behalf of the federal government.

More fundamental to the issue here presented is the fact that we do not regard this case as necessarily involving the question whether the plaintiff could establish residence to vote if he resided on a reservation over which the federal government had exclusive jurisdiction. As the matter is presented to us it is contended that some parts of the Dugway Proving Grounds are under the exclusive jurisdiction of the United States, and that other parts are not. There is no affirmative showing that plaintiff’s residence is in the former, and he maintains that it is not. Inasmuch as it is shown that he is a citizen, having all the other qualifications, that establishes prima facie his right to register to vote and he must be allowed to do so unless it is clearly established that there is some basis for denying him that privilege.

The plaintiff sets forth the following undisputed facts which indicate that the federal government has and maintains something considerably less than exclusive jurisdiction on this military reservation: The right is reserved to the state to serve process, both civil and criminal; the schools located in the area are under the control and administration of the Tooele County School District; state income tax is levied and collected upon all persons living there; other state taxes are also collected upon gasoline and tobacco, and all privately owned vehicles are required to be registered with the State of Utah and have Utah license plates.

The foregoing facts make the instant case analogous to the case of Arapajolu v. McMenamin 8 decided in 19S2 by the California District Court of Appeal, which we regard as well reasoned and correct in result. It held that notwithstanding there may have been exclusive jurisdiction in the federal government on the military reservations, by such facts as the foregoing, the federal government, as a practical matter, had retroceded partial jurisdiction to the state, and that this allowed persons living on the military reservations to acquire a residence for voting purposes within the state. Upon application, the California Supreme Court refused to review that decision.

*174Another case of generally similar import and result which follows and approves the California case is that of Adams v. Lon-deree by the Supreme Court of Appeals of West Virginia.9 These recent decisions seem to represent the modern and what we think is the better considered view of the matter. This is particularly so when viewed in the light of developments in recent years on military reservations, and even more so when the noted changes in our statutes are considered.

Closely related to the argument concerning exclusive jurisdiction is the position taken by the defendant that the control over these employees exercised by the federal government makes their residence of such a transitory nature that they cannot qualify for voting purposes. The substantial changes in the nature of operations on military reservations since the advent of World War II have an important bearing on this argument. In former times they were populated practically exclusively by persons in the armed forces. The emphasis was upon personnel; it has shifted to materiel.

Some of these military reservations have become highly mechanized and industrialized areas with a large percentage of the population thereon consisting of civilian employees. For the convenience of all concerned they and their families reside upon the military reservation. There they live and work, attend school and church and pursue most all of the normal activities of life. Such installations have existed for so many years that from anything that is known, they are a permanent part of our social and economic life and therefore should be of our political life also. The question whether the residence requirement is met is governed by the statute,10 and those charged with the duty of administering it. The fact that one may be living there because of convenience to his employment, and will move somewhere else if it terminates, is not unlike many other mining or industrial communities of our state. If it is in fact his only home and he intends it as his residence, the fact that his motivation for making his home there is that he has government employment will not defeat his' purpose if he otherwise meets the requirements of the statute.

The considerations concerning whether the civilian employees should vote are greatly different than when sub-section 11 was originally adopted. Its purpose appears to have been to prevent the federal' government from manipulating personnel, or unduly influencing them in order to control the results of local elections. In that connection it’ is significant to note that in amending our statutes in 1957 (chap. 38) the legislature amended sub-section (3) of 20-2-14 by adding the emphasized words:

*175“No officer, soldier, airman, seaman or marine in the army, airforce, or navy of the United States shall be deemed a resident of this state in consequence of being stationed at any military, air, or naval station within the same.”

This points up that the matter received legislative attention and that it expressly continued the interdiction against persons actively serving in the armed forces, the particular personnel which would be most subject to such manipulation and control, and for which purpose the law was originally enacted. For this reason, and because of the change in the nature of military operations on such reservations, the justification for the general prohibition originally contained in sub-section 11 has largely vanished and the salutary considerations in favor of permitting civilian employees residing on military reservations to have and exercise the full privileges of citizenship far outweigh any considerations to the contrary. The fact that the bases for preventing all persons residing on military reservations from voting has so changed and that the potential evils with respect to civilian residents is so minimal supports an interpretation of our statutes that it was the legislative intent to lift the barrier which prevented them from voting. We are in accord with the thought expressed by the great Justice Holmes wherein he is quoted as saying: “There is nothing more revolting than to have no better reason for a rule than that it was so laid down in the time of Henry IV; and it is still more revolting if the grounds upon which it was so laid down have vanished.” 11 We think this has particularly cogent application to the instant controversy.

A further important point to keep in mind is that our legislature, with its undoubted prerogative of prescribing the conditions upon which the right to vote depends, has always taken it for granted that citizens having sufficient residence upon military reservations within the state could vote unless prohibited by statute. This is shown by the fact that sub-section 11, which was a general prohibition against persons residing on military reservations, was adopted at statehood, and the same may be said of sub-section 3 which still so prohibits active military personnel from voting. ■

In view of the legislature’s repeal of sub-section 11 in 1957 we think it abundantly clear that it intended to take cognizance of the changes in circumstances hereinabove discussed and to remove the barrier from voting for persons residing on military reservations and to place them on the same basis as other citizens of the state in regard to acquiring a residence to vote. (Except those actively serving in the armed forces, covered by sub-section 3.) *176The dire consequences suggested that the federal government could affect elections by controlling or influencing such employees should give no cause for alarm. That is for the legislature to consider. If any such circumstance should come into being, or should threaten, it could by further legislative enactment remove the privilege it has now given them to vote.

The interpretation we give the law is in harmony with our statutes as they now exist and their intent as indicated by the purpose for which they came into being; and is also consonant with the ideals upon which this nation was founded and upon which its continued well-being must rest. The right to vote and to actively participate in its processes is among the most precious of the privileges for which our democratic form of government was established. The history of the struggle of freedom-loving men to obtain and to maintain such rights is so well known that it is not necessary to dwell thereon. But we re-affirm the desirability and the importance, not only of permitting citizens to vote- but of encouraging them to do so.

To so interpret our statutes as to deprive one who has sought American citizenship for the very purpose of embracing our principles of liberty and democracy and thus prevent him from enjoying its advantages and participating in its processes would seem quite discordant to tire ideals of American liberty, a result not to be desired and one which should eventuate only if clearly required under the law. Accordingly, even if the statutes are not as clear in this regard as may be desired, doubts should be resolved in favor of the right to vote to the end that citizens may enjoy the full rights and privileges of citizenship.

Closely related to the doctrine just stated is the well recognized rule of statutory construction that if statutes can be given different reasonable interpretations, under one of which they would be constitutional and under the other their constitutionality would be doubtful, the former will be adopted.12 Our conclusion renders it unnecessary to consider the contention of the plaintiff that if the statutes are so interpreted as to deny him the right to vote they would be unconstitutional by discriminating against him and the class to which he belongs.

The writ previously issued is made permanent. No costs awarded.

WADE and McDONOUGH, JJ., concur.

. Utah Const, art. IV, § 2 requires: Citizen of the United States for 90 days; age 21 years; residence in state one year, county 4 months, precinct 60 days prior to election.

.Allen v. Merrell, 6 Utah 2d 32, 305 P.2d 490.

. See Bateman v. Board of Examiners, 7 Utah 2d 221, 322 P.2d 381.

. 6 Utah 2d 32, 305 P.2d 490.

. See 34 A.L.R. 2d 1198, et seq.

. See Allen v. Merrell, footnote 2, supra.

.See U. S. Const. Amend. No. VII, IX, X and XI.

. 113 Cal.App.2d 824, 249 P.2d 318, 34 A.L.R.2d 1185.

. 139 W.Va. 748, 83 S.E.24 127.

. Sec. 20-2-14, U.C.A.1953.

. Justice O. W. Holmes, by Silas Bent p. 149.

. Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400.