This action was commenced on March 4th, 1893, to oust the defendant from the office of superintendent of the poor of the county of Niagara, upon the theory that, on the 1st of January, 1893, he intruded into and, up to the time of the trial, had unlawfully held the same.
Upon the trial it appeared that, at the general election held in 1892, the relator and the defendant were the leading candidates for the office in question, and that the former received 6,747 votes, while the latter received 6,755, and was declared elected. The relator claimed that all votes cast by electors residing in the town of Lockport, one of the towns of Niagara county, were void and should not be counted, because they were deposited at polling places located outside of the election districts into which the town was divided. As he received but 178 votes in that town, while the defendant received 336, the effect of this claim, if sustained, would reduce the number of lawful votes cast for said candidates to 6,419 for the defendant and 6,569 for the relator, who would thus be elected.
The case was tried before the court without a jury, and the trial judge dismissed the complaint upon the ground that the votes cast by the voters of the town of Lockport at such election were properly cast and lawfully counted by the canvassing board of the county of Niagara. The relator appealed to the General Term, where the judgment rendered at Circuit was affirmed, and from the judgment of affirmance he has appealed to this court.
Niagara county was organized in 1808, and in 1824 a part of its territory was converted into the town of Lockport. (L. 1824, ch. 27.) In 1829 the village of Lockport was created and so located that it was entirely surrounded by the remaining territory of said town (L. 1829, ch. 78.) While this act provided for the election of village officers, it made no provision permitting the citizens of the town to vote within the village, but, in fact, from 1829 until 1865 the electors of the town held their elections and town meetings at convenient *Page 505 points within the village. In 1865 the city of Lockport was incorporated, with four wards, each ward being an election district, and the territory thus made into a city embraced the village of Lockport and some additional territory taken from the town, but the remaining portion of the town surrounded the city on all sides. (L. 1865, ch. 365.) Section 2 of title 9 of the city charter provided that "the town of Lockport shall continue to be one of the towns of Niagara county, embracing all the territory included within the present town of Lockport, excepting that which is included within the limits of the city corporation organized by this act."
Section 18 of the same title provided that "the town meetings and general election of the inhabitants of the town of Lockport, as hereby constituted, may be held at such places in the city of Lockport as the supervisor of said town and the mayor of said city may appoint, with the same force and effect as if held in said town."
By chapter 120 of the Laws of 1886 the charter of the city of Lockport was revised, but none of the changes made affect the questions now before us and no territory was added to or taken from the city. Section 18 of title 9 of the original charter became section 269 of the revised charter without any substantial alteration. Since the organization of the city, the town meetings and elections of the town of Lockport have been held at convenient places in the city, designated pursuant to said provision of the charter. No polling places were provided in the town and the voters thereof were compelled to vote at the polls located in the city or they could not vote at all. No question was raised as to the legality of elections thus held until the general election in November, 1892, when the close vote in the county for superintendent of the poor led to the present controversy. At the time of said election the town of Lockport had been divided into two election districts, and the polling place for the first district, designated according to the city charter, was in a building situated within the city, known as No. 11 Main street, which was in the second election district of the first ward of the city of Lockport. *Page 506 The polling place for the second district, designated in the same way, was also inside of the city limits, in a building known as No. 49 Locust street, which was in the first election district of the third ward of said city. Each of said polling places was about one mile from the nearest boundary of the said election districts of the town. The polling places for the city were distinct from those for the town, and no elector residing in the city voted at either of the town polling places, and no voter residing in the town voted at any of the city polling places. Prior to the election in question the town board designated the same polling places for the two election districts of the town that had been designated by the mayor and supervisor under the city charter. It is not claimed that there was any fraud at the election or any illegal votes cast at the polling places where the electors of the town cast their votes, nor is it claimed that the votes as cast and canvassed did not represent the wishes of the voters.
The first question presented for decision is whether the legislature had the power, under the circumstances, to authorize electors residing in the town to vote in the city. The answer to this question must be found in section 1 of article 2 of the Constitution, which, so far as material, is as follows: "Every male citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people; * * *" When the charter of the city of Lockport was enacted in 1865, the wording of section 1 of article 2 of the Constitution was somewhat different, although the meaning, so far as the point now under discussion is concerned, was the same. (Const. of 1846, art. 2, § 1.) In 1874, however, said section was so amended as to read the same as it does now, with the exception of a single word relating to *Page 507 the length of time that the elector must have been a citizen, so that when the revised charter was passed in 1886 the Constitution was practically the same as it is at the present time. (Const. of 1846, as amended in 1874, art. 2, § 1.)
While the Constitution regulates the qualifications of voters, it also defines the territory within which each voter may exercise the elective franchise. The qualifications depend upon sex, age, citizenship and the like, but no person, even with these qualifications, can vote wherever he chooses, for the right is limited to the election district in which he resides at the time he deposits his ballot. The words "and not elsewhere," which appear in every Constitution except the first, are an express limitation. The command of the Constitution is that the elector must be a resident of the election district in which he offers his vote, and that he shall be entitled to vote only in that election district. He must reside in the election district where he votes, and can vote only in the election district where he resides. In the fall of 1892, did the electors of the town of Lockport reside in the districts where they voted, within the meaning of the Constitution? No part of either of the two districts into which the town was divided was geographically a part of the city. Both were territorially wholly outside of the city. No elector of the town resided in the city, yet both of the polling places provided for the town were in the city. The electors of the town, in order to vote, had to cross over the town line and the district line into the city. They had to leave the bounds of the election district where they resided and enter an election district in which they did not reside. They lived in the town and did not live in the city, yet they voted in the city and not in the town. The language of the charter, already quoted from section 2 of title 9, shows that the city and the town are distinct political divisions, with no common territory. The town has its own supervisor, elected wholly by its own voters, and each ward of the city has its own supervisor, elected wholly by its own voters.
Although the language of the statute does not indicate such *Page 508 an intention, assume that "the right of the town voter was not taken away," but was "reserved" by the city charter; that the election districts were "projected" into the city so as to embrace the polling places designated therein for the town, and that No. 11 Main street and No. 49 Locust street were thus made, theoretically, a part of the town for election purposes, still it cannot be denied that they are also a part of the city for election purposes. A resident of either of those houses could, therefore, vote at a town election by virtue of his theoretical residence in the town, and at a city election by virtue of his actual residence in the city. This absurdity shows the hazard of holding that a resident of the town can vote in the city, for a man cannot reside in two places at once. If he resides on his farm in the country, he cannot, at the same time, reside at No. 11 Main street or No. 49 Locust street in the city.
It is obvious that in November, 1892, no elector of the town of Lockport resided in the district where he voted, if the language of the Constitution is to be given its ordinary meaning. When that instrument says that a man possessing certain qualifications "shall be entitled to vote * * * in the election district of which he shall, at the time be a resident, and not elsewhere," it means actual residence as that term is understood in the law. It does not mean that he can reside, even for the purpose of voting only, in a house that possibly he never entered until he offered his vote, for residence imports personal presence; nor does it mean that district lines can be so commingled that the place of residence can be in two election districts at the same time.
No one would think of so construing the Constitution as to make it mean that a person could, for any purpose, be a resident of both city and town on the same election day, were it not for the temporary inconvenience of holding otherwise. Convenience has nothing to do with the meaning of the Constitution, which does not change in order to accommodate a community. Its broad and general rules are made for the government of the entire state, and they do not vary because *Page 509 a few hundred people want them to. The Constitution is not a leaden rule that bends up and down, so as to measure twelve inches when the surface is smooth and eleven when it is rough, but it is constant, uniform and inflexible, and all must obey its commands whether convenient or inconvenient. It does not bend "to suit the law of the hour," and considerations of expediency should not be yielded to in expounding its provisions. Its words should be given their usual meaning unless the context shows a different intention, of which there is no evidence in the case in hand. It should receive that direct, simple and exact construction that is adapted to a fundamental law upon which all other laws rest. A strained construction of the Constitution, made to meet an emergency, is an injury to jurisprudence, for it disturbs the foundations of the law and trifles with the confidence that is reposed in the judgments of courts. It is dangerous to hold that the word "resident" has two different meanings in the same sentence, or that "a resident of the county" means one who has his home within the county lines, while "a resident of the election district in which he may offer his vote," may mean one whose home is not in the same district as his polling place. While town lines do not limit the legislature, for they are not mentioned in said section, clearly county lines cannot be crossed so as to authorize a resident of one county to vote in another. If the boundaries of Niagara county cannot be projected into those of an adjoining county for election purposes, it is difficult to see how the boundaries of one election district can be projected across those of another, for residence within the district is as obligatory as residence within the county.
The learned counsel for the respondent claims that the words "at the polls of" should be substituted for the word "in" so that the Constitution would read "shall be entitled to vote at such election at the polls of the election district of which he shall at the time be a resident."
It is our duty to so construe the Constitution as to give effect to the presumed intention of the people in adopting it, *Page 510 and that intention must be gathered, if possible, from the instrument as it is written. As we can neither add to nor take from the constitutional qualifications of voters, so we cannot add to or take from the place specified where the voter may exercise the right of voting. The words of the clause in question are presumed to have been used according to their ordinary and natural meaning, and when thus read, if they present a definite meaning that is not so unreasonable as to be absurd, we must adopt that meaning as the only one intended to be conveyed. Where the language is plain and presents no ambiguity, the court must confine its attention to the law as written and not allow words to be inserted by implication, which is always dangerous, and should never be resorted to except in cases of imperative necessity, arising from grave doubt as to what was meant.
We are also urged to hold that the practical construction of this provision of the Constitution by the legislature should have great weight, but, as said by Judge STORY, "Contemporary construction * * * can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries." (Story on Const. Lim. § 407.) There is not in this case that extensive usage or general contemporaneous construction that is sometimes allowed to prevail when doubts arise on the face of the instrument. Practical and contemporary construction should never be resorted to when, as in the case before us, the meaning is clear and uniform, even if some hardship is the result. No encouragement should be given to the belief, now widely prevalent, that if an unconstitutional law can be acted upon long enough to make it a hardship to declare it void, the courts will not interfere. It is better that a small proportion of the inhabitants of the state should suffer temporary inconvenience than to permit the will of the mass of the people, as expressed in the adoption of the Constitution, to be defeated by a loose construction that may invite abuses and promote disorder.
It is further argued that, as the power existed, prior to the *Page 511 creation of the city, to establish polling places anywhere in the territory of the town, the right to still establish them anywhere in that territory was reserved by the city charter and, hence, was never lost. The answer to this is that the Constitution expressly prohibits an elector from voting elsewhere than in the district where he resides, and it impliedly prohibits the inclusion of the same territory in more than one election district at the same time. Its object is to secure purity of elections by requiring the voter to cast his vote in the place where he is best known, or as near to his own home as possible. As the Supreme Court of Pennsylvania said, under somewhat similar circumstances, "Without the district residence no man shall vote, but having had the district residence the right * * * is to vote in that district. Such is the voice of the Constitution. * * * Whoever would claim the franchise which the Constitution grants, must exercise it in the manner the Constitution prescribes." (Chase v. Miller, 41 Pa. St. 403, 427.)
For these reasons I think that the judgments of the courts below should be reversed and a new trial granted, with costs to abide the event.
BARTLETT, HAIGHT and MARTIN, JJ., concur with O'BRIEN, J., for affirmance; PARKER, Ch. J., and GRAY, J., concur with VANN, J., for reversal.
Judgment affirmed.