3 Or 568, Opinion — Wood v. Fitzgerald

568 	wOOD V. FITZGERALD. 	[3 Oregou
WOOD, Respondent, v. 	FITZGERALD and WINGATE,
Appellants; and ).IAYS, Respondent, v. FITZGERALD
and WINGATE, Appellants.
Appeal from Wasco Circuit Oourl.*
Lntrr TO INQUIRY.-ln contested election cases the law limits judicial
inquiry to the votes retnrned upon the poll books.
REsIDENCE.-Though an empfo~·ee of the United States or state govern•
ment cannot "gain or lose a residence by reason of his presence
or absence while employed in the service," yet he can establish his
domicile, and gain a residence, at such a point as he may desire,
by taking the proper and appropriate steps to do so, independently
of his employment.
PA.BDON.-A general, absolute pardon, relieves the person to whom it is
granted, not only from imprisonment, but from all the consequential
disabilities of the judgment of conviction, and restores such person
to the full enjoyment of his civil rights.
IDEM.-Article II, section 3, of the state constitution, does not operate-
as a restriction or limitation upon the effect of a pardon.
xv AMENDMENT TO CoNSTITilTION OF UNITED STATES.-The fifteenth
amendment to the federal constitution is a part of the supreme law
of the land, and its effect is to annul those provisions of the state
constitution, and those enactments of the state legislature, which
restrict the exercise of the right of suffrage to white persons.
RESIDENCE.-PRECINCT.-Where an individual has established for him-
self a settled residence and a fixed domicile in any precinct in a
county, there he must vote; where, however, an individual is a
bona fide resident of a county, hut has no fixed residence or dom-
icile in any particular precinct therein, he may vote in any precinct
in which he may find himself on the day of election.
NATURALIZATION.-By being naturalized an alien becomes instantly a
citizen of the United Stat~s, and of this State, and as such has
a right to vote for county officers at any election, at which such of-
ficers are to be chosen, occurring after his naturalization, if he ha.a
the necessary qualification as to residence in the state and county.
CosTs.-In cases of contest of election under title V of chapter 13 of the-
general laws, costs and disbursements cannot be recovered.
*Darragh, appellant, v. Bird, respondent; McFarland, appellant, v•.
Holland, respondent; Grant, appellant, v. Ruch, respondent; Wood, re-
spondent, v. Fitzgerald and Wingate, appellants; and MayB, respond•
ent, v. Fitzgerald and Wingate, appellants, were all contested electio11
cases appealed from Wasco county. 	The case of Darragh v. Bird, was
withdrawn. 	That of Grant v. Ruch, dismissed. 	The other cases were
argued at length. 	For convenienee the cases of Wood v. Fitzgerald. and
Wingate, and Mays v. Fitzgerald and Wingate were considered at the
same time, and are reported together. 	In the case of McFarland v. Hol,.
land, the respondent prevailed. 	No report of this last named case is
deemed necessary, as the points passed upon therein are embraced m
the cases reported.

Sept. 1870] 	Woon v. FITZGERALD. 	569
THE £acts are sufficiently set forth in the opinion.
0. Humason and N. H. Gates, for appellants.
J. G. Wilson, for respondents.
Counsel joined in one brief, citing constitution of Oregon,
sections 2, 3, 4, 5, 6, p. 101; sec. 17, p. 103, and sec. 14, p~
110; Laws of Oregon, p. 696, 707, 708; sec. 13, p. 700; sec.
11, p. 699 ; sec. 18, p. 701 ; sec. 354, p. 237 ; 4 Cal. 17 5 ; 28-
Cal. 123; 4 Barb. 504; 1 Kent, 86; 2 Kent, 431; 10 Iowa,
308; 19 Wend. 11; XV Amendment; Constitution IX and
X Amendments; Reconstruction Act; McPherson's Manual,
1869, p. 448 and 457.
McARTHUR, J. 	At the regular biennial election, 	held
June 6th, 1870, E. Wingate and E. P. Fitzgerald; and Ed-
win Wood and Robert Mays, were candidates for the offices
of county commissioners of Wasco County. 	On June 14th,
1870, the board of canvassers, as provided by law, canvassed
the votes polled at said election, and found that Wingate had
received 314 votes; Fitzgerald, 316; Wood, 311, and Mays
303. 	Thereupon Fitzgerald and Wingate were declared to-
be elected, and certificates of election were accordingly is-
sued by the clerk of Wasco County. 	On June 	28, 	1870,.
Wood and Mays commenced proceedings 	to 	contest 	the
election of said parties, in the manner prescribed in title 5,
of cliapter 13 of the general 	laws. 	The cases were sub-
mitted at the same time, and the court below, after casting
out what it adjudged· to be 	the 	illegal 	votes 	polled 	and
counted for each of the said parties, arrived at the conclu-
sion that of the legal votes cast, Woods had received 311,.
Mays 303; Fitzgerald 301, and Wingate 298. 	Wood and
Mays were accordingly adjudged to have been duly and
le,gally elected, and to be entitled to the offices of commis-
sioners of Wasco county. 	From this judgment Fitzgerald
and Wingate appeal.
The first point presented is one of interest. 	On the trial
of these causes it was insisted by 	appellant's counsel 	that

570 	wOOD v. FITZGERALD, 	[3 Oregon
the vot.es of J. Ross, D. Lynch and William Sullivan should
be added t.o the number polled :for appellants; and it was as
strenuously insist.ed by respondents' counsel that the votes
o:f R. Graham, D. L. Reynolds, J. A. Foot, J. 	S. 	Morgan,
P. Runey, A. Biddle, J. S. Paddleford, Wm. 	McKay and
others-in all nineteen-should be added t.o the number
polled for respondents. 	The names of these parties do not
appear upon the poll books; but it is claimed that their
vot.es were illegally rejected by the judges o:f election. 	The
court below refused t.o count them, and as a reason :for such
refusal declared, in substance, that in its opinion the law
limit.ed judicial inquiry t.o the votes returned upon the poll
books. 	And this ruling it is charged was erroneous. 	An
examination into the duties o:f the judges o:f election, and
the rights o:f electors is necessary, in order t.o arrive at cor-
rect conclusions on this point. 	It is the duty of judges of
election to receive all vot.es offered and cause them t.o be en-
t.ered upon the poll books by the clerks. 	I:f a 	challenge is
int.erposed and insist.ed upon, it becomes the duty of said
judges t.o render t.o all persons offering t.o vote the oath pre·
scribed and set forth in sec. 13, p. 	700, general laws. 	I:f
the person so challenged fails or refuses to take the pre-
scribed oath, the same section declares that his vote shall
be rejected. 	By sec. 14, p. 700, it is enacted that even if
the person challenged takes the prescribed oath, further in-
quiry may be made into his qualifications, and if a majority
of the judges are o:f opinion that he does not possess the
qualifications of an 	elector, 	his 	vote 	shall 	be 	rejected.
Though such an one is rejected and excluded from 	voting,
sec. 18, p. 701, requires his name to be ent.ered on the poll
books as a reject.ad voter. 	It is also provided that the
names o:f the persons for whom he int.ended to vote shall be
taken down, the evident intention of the law being to have
preserved a complete record of all rejected as well as all ac-
cepted vot.es. 	The wisdom and policy of this enactment is
very apparent. 	Proper compliance with it :facilitat.es judi-
cial inquiry when necessary into the rights and qualifications
o:f the vot.er, and at the same time tends to prevent improper

Sept. 1870] 	W 00D v. FITZGERALD. 	571
action on the part of judges of election. 	In 	refusing to
record the votes of the persons named, the judges acted in
direct contravention of 	law. 	They 	should have 	been 	re-
ceived and entered upon the poll books as rejected voters.
It is urged that notwithstanding the failure on the part of
the judges to comply with the law, 	these votes 	should 	be
counted, 	the evidence showing that they 	were 	properly
offered and improperly rejected, conceding that the evidence
is entitled to all the weight claimed for it, we find no au-
thority £or so doing. 	Cases of this nature must be heard
and determined "in such 	a manner 	as 	shall 	carry 	into
effect. the expressed will of a majority of the legal voters, as
indicated by their votes." 	(General laws, sec. 41, p. 708.)
This expressed will can only be gathered from the poll books,
and a vote must be recorded before it can be said to have
obtained such an expression as 	the law contemplates. 	In
contests such as this, the main question is, which candidare
received the highest number 	of 	legal 	votes 	cast. 	It 	is
claimed that the persons named did all they could to express
their will and intention on election day; and that as the
evidence shows they were qualified vorers, their vores should
be counted. 	It is unnecessary to 	discuss 	the 	evidence.
Suffice it to say it is exceedingly unsatisfactory, and we can-
not give it the weight which counsel claim £or it. 	Besides,
we are clearly convinced that it would be productive of ar-
rant fraud and gross perjury to establish the rule that the
courts could properly count the vote of a person who did
not vote at the time of the election, and whose name is not
to be found on the poll books, leaving it to be ascertained
subsequent to the election from the testimony of such per-
son himself in whose favor his vote would have been cast.
If such a rule should be established, it would be both pos-
sible and probable that the result of elections, as declared
by the board of canvassers and the will of the people, 	as
expressed by the poll books, would frequently be changed
and thwarted through the contrivance of the judges and the
ready testimony of suborned witnesses. 	In 	refusing 	to
count the votes of these persons, the court below did not err.

572 	Woon v. FITZGERALD. 	[3 Oregon
It is claimed by appellants' counsel that the court below
erred in refusing to deduct the votes of B. P. Cardwell and
Jacob Fritz from respondents' tally, for the reason that the
the evidence establishes the fact that they are employees of
the United States government, 	and consequently disquali-
fied by article II, section 4, of the state constitution, which
declares 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 employed in 	the service 	of the
United States, or of this state," and etc. 	B. P. Cardwell
came to Wasco County from 	Portland more 	than 	ninety
days before the election, and brought with him his family.
At the date of the election and for a long time prior thereto,
he was and had been the deputy of the 	United 	States as-
sessor and collector of internal revenue. 	The court below
found that the transfer of his 	domicile from 	Portland to
Wasco County was accompanied 	by 	such appropriate 	acts
on his part as to leave no doubt that it was a bona fide
change of residence. 	Jacob Fritz 	came 	to Wasco 	County
in 1863, and was at that time a private soldier in G com-
pany of the Fourth Infantry of the United States regular
army, and in 1865, his term of enlistment having expired,
he was 	honorably 	discharged 	from 	the 	military 	service.
Subsequently he was employed as a civilian by the proper
authorities to take charge of the abandoned military post
and reservation adjacent to the 	Dalles; 	he 	discharged no
military duty whatever, but acted simply as a sort of keeper
and protector of the government property in about the post
abandoned. 	He continued to reside in Wasco County 	al-
most uninterruptedly from the time of his discharge from
the military service until the day of the election, a period of
almost :five years. 	Both these individuals were employees
of the United States government and in 	the civil service.
The facts being as above set forth, the question arises as to
the applicability and effect of article II, section 4, of the
state constitution to and upon the persons so situated. 	We
cannot see the legal force or propriety of placing such a
construction upon that section as would preclude an em-

Sept. 1870] 	Woon v. FITZGERALD. 	573
ployee of the United States or 	state 	government 	from
making any change in his domicile that he may 	desire 	to
make. 	Though such an one cannot gain or lose a residence
by reason of his presence or absence when employed in the
service, yet he can establish his domicile and gain a resid-
ence at such a point as he may see fit, by taking the proper
and appropriate steps so as to do independently of his employ-
ment. In The People v. Holden (28 Cal. 137,) it was decidEd
that section 4, of article II, of the constitution of California,
( the language of which is almost identical with that of arti-
cle II, section 4, of the constitution of Oregon,) 	does not
add to or take from the conditions upon which the fact of
residence is made to depend; and it was held that that sec-
tion meant simply that in determining the fact of residence,
presence or absence in the service of the United States shall
not be taken into account, or in other words, neither pres-
ence nor absence in the service of the 	United 	States is a
condition upon which the fact of residences can be affirmed
or denied. 	It sufficiently appears that both 	Cardwell and
Fritz had acquired a legal residence in Wasco County prior
to the election. 	This they had a right to do; nor. can any
such interpretation be put upon the section of the constitu-
tion referred to as would prevent them from acquiring such
residence, or from removing their residence from the local-
ity at which they were domiciled at the time they ent.ered
the civil service of the United States government. 	They
voted at the election, and had a legal right so to do, and the
court below did not err in refusing to strike their votes from
the number returned, as cast for the respondents.
Among those who cast their votes for the appellants was
one Mathias Meng. 	On June 26, 1867, Meng was convicted
of the crime of arson in the circuit court of the state of
Oregon, for the county of Wasco. 	He was subsequently
sentenced to imprisonment in the penitentiary for the term
of five years. 	On September 25, 1867, and before the ex-
piration of his sentence, he was pardoned by the governor
of the state, 	and was released from 	imprisonment. 	The
pardon was general and unconditional. 	Upon these £acts,

574 	Woon v. FITZGERALD. 	[3 Oregon
the court below held, in substance, that while the pardon
remitt.ed the punishment and blott.ed out the 	offense :for
which Ming was incarcerat.ed in the penit.entiary, yet it did
not restore him to his political rights; they had become :for-
feit.ed and that there was no provision in the constitution or
the laws that authorized or warrant.ed their restitution. 	We
cannot yield our assent to this proposition. 	The doctrine
of pardons, as now recognized and applied by civilized na-
tions has its origin in Divine law, 	upon which rests 	the
merciful administration of human justice, and finds its sanc-
tion in the rules of political and social ethics, 	whlch have
been firmly established and approved by the 	wisdom 	of
ages. 	The pardoning power has been exercised from time
immemorial by the sovereigns of those 	nations 	who 	have
made any advancement whatever in the science 	of human
government. 	Although it is liable to great abuse, yet, from
the very necessity of things, no government could be said to
be well 	ordered, 	without having 	this 	power 	somewhere
vest.ed. 	Every one who has made well 	directed 	investiga-
tions into this subject must, we think, reject the idea that
the pardoning power is vested in the sovereign or executive
solely with a view that its exercise 	may relieve 	convicted
criminals :from the punishment which the law inflicts as a
coneequence of their adjudged guilt. 	The administration
of human justic-0 being necessarily imperfect, it sometimes
happens that from a combination of untoward circumstances,
innocent individuals are adjudged to be guilty of the com-
mission of crimes of which they 	are 	in reality innocent.
Though such instances are of rare occurrence, the fact that
they have occurred, and are likely to again ooour, forbids that
we should refuse to admit the fearful 	truth. 	The govern-
m~nt so organized and administ.ered as to preclude the pos-
sibility of relief to one thus unfortunate would present a
very lamentable spectacle. 	It would defeat one of the main
objects for which governments are formed-that of promo-
ting the. individual and collective happiness and welfare
o:f mankind. 	The necessity and efficiency of the pardoning
power will he much more readily acknowledged when it is

Sept. 1870] 	Woon v. F1TzGERALD. 	575
exercised to prevent injustice; it being ascertained that an
error of the kind referred to has been committed; than when
it is invoked to temper the judgment which the law has pro-
nounced upon one whose guilt is established beyond perad-
venture. 	In the one case it should be extended as a matter
of right, in the other, a matter of grace and mercy, it should
be exercised with care and discrimination. 	Article V, sec-
tion 14 of the state constitution vests in the governor in very
general terms the power to grant reprieves, 	commutations
and pardons, after conviction, for all offenses 	except trea-
son. 	A.rticle II, section 3, of the same instrument, deelares
that the privilege of an elector shall be forfeited by a con-
viction of any crime which is punishable by imprisonment
in the penitentiary. 	AP, before stated, Meng was convicted
of the crime of arson-a crime punishable by imprisonment
in the penitentiary, and after such conviction, the governor
moved by merciful consideration, granted him a general,
absolute pardon. 	The 	question therefore 	arises, 	did the
pardon restore to him the privileges of an elector, which were
forfeited by his conviction of the said crime, or did it oper-
ate solely to relieve him from the corporal punishment of in-
carceration, leaving him to suffer all the other consequences
flowing from such conviction. 	After careful consideration
of the law as it exists, and the abundant authorities on this
point, we can arrive at no other consistent or satisfactory
conclusions than that a general absolute pardon relieves the
offender not only from imprisonment but from all the con-
sequential disabilities of the judgment 0£ conviction, and
restores him to the full enjoyment 	0£ 	his 	civil 	rights,
with this restriction merely: 	"That it cannot divest any
person of any right or interest, which the law has permitted
to be acquired and vested in consequence 0£ the judgment,"
( 4 Blackstone's Commentaries, 402 ; 8 Bacon's Abr. 	Title
Pardon; Hawkins' Pleas 0£ the Crown, Title Pardon, b. 2, c.
37, sections34and54.) It seems to us that it would be a cause
0£ profound regret i£ the law were otherwise. In The People
v. Pease (3 Johnson's Cases, 333-4), the inquiry 0£ the court
was directed towards ascertaining whether the pardon of

576 	wOOD v. FITZGERALD. 	[3 Oregon
the governor did away with all the 	consequent legal 	disa•
bilities which attached to one convicted of an 	infamous
crime. 	It was held "That the disabilities formed no part
of the judgment against a convict, but are the legal marks
of infamy which it fixes upon him. 	When, 	therefo:re, the
judgment is pardoned, the legal infamy :flowing from it is
equally disposed of by the pardon." 	The 	Court further
declared the proposition that the judgment to which those
disabilities are merely consequential can be released, 	and
yet the disabling effect thereof remain, to be untenable. 	In
the matter of Deming (10 Johnson, 233), the court wisely
said that "policy and humanity require that we should give
the convict so pardoned as complete a restoration of his
private rights as may be consistent with 	the 	intervening
rights and interests of others," and it held "that the effect
of the pardon was to acquit the offender of all the penalties
annexed to the conviction, and to give him new credit and
capacity." 	The force and applicability of these decisions
will be more readily observed by a comparison of the sec-
tion of the constitution of Oregon, above cited, 	with 	very
similar provisions in the constitution and the laws of New
York. 	In Perkins v. Stevens (24 Pickering, 277), it was in
substance declared that a full pardon of an offense removes
all blemishes of character, wiped away the infamy of the
conviction, and restores the 	convict 	to 	his 	civil 	rights.
Article II, section 2, 	of the 	constitution 	of the 	United
States, provided that the president 	"shall 	have 	power 	to
grant reprieves and pardons for offenses against the United
States, except in cases of impeachment." 	The power vested
in the president by this provision of the 	federal 	constitu-
tion, is perhaps more extensive than that vested in the gov-
ernor of this state by the provision of the state constitution
already cited; but both rest upon the same broad principle,
and there are no good reasons why the general rules adhered
to in one case, should not govern in the other. 	The princi-
ples and powers are much too analogous to justify the
application of different rules. 	In Ex parte GMland (4 Wal-
lace, 333-380), the supreme court 	of 	the 	United 	States,

Sept. 1870] 	WooD v. FITZGERALD, 	577
decided that "a pardon reaches the 	punishment prescribed
for an offense, and the guilt of the offender, and where the
pardon is full, it releases the punishment, and blots out of
existence the guilt, so that in the eye of the law the offender
is as innocent as if he had never committed the offense. 	If
granted before conviction, it prevented any of the penalties
and disabilities consequent upon conviction from attaching;
if granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights." 	Hence
we conclude that the pardon granted to Meng, restored to
him the privilege of an elector, and that in striking his vote
from the number cast for appellants, the court below erred.
Before leaving this branch of the case, we would state that
in our opinion, article II, section 3 of the state constitu-
tion, does not in any way operate as a restriction or limita-
tion upon the effect of a pardon granted by the executive,
the f orre and effect of that section being confined to those
eonvicted of infamous crimes, from 	whom the executive
clemency has been or may be withheld.
0. H. Yates and W. S. Ford, two 	negroes, votes for the
respondents. 	On behalf of the appellants, it is urged, that
being negroes, they were disqualified from voting by article
1, section 2, of the state constitution, and the laws passed
in pursuance thereof, which limit the privilege of the elec-
tive franchise to white persons. 	On the other hand, 	it is
urged, that they became legal voters upon the ratification
of the fifteenth amendment to the federal constitution, and
that therefore their votes should be 	allowed 	to stand as
cast. 	The gravity of the question presented by the conflict
of the state and federal constitutions, cannot be 	over esti-
mated, and for various reasons we are led to examine into
it with a degree of care and circumspection 	commensurate
with its importance. 	On March 30, 1870, the secretary of
state of the United States by proclamation declared, in sub-
stance, that the fifteenth amendment to the 	constitution of
the United States had been ratified by 	the legislatures 	of
the states of North Carolina, West Virginia, Massachusetts,

578 	Woon v. FITZGERALD. 	[3 Oregon
Wisconsin, Maine, Louisiana, Michigan, South 	Carolina,
Pennsylvania, 	Arkansas, 	Connecticut, 	Florida, 	Illinois,
Indiana, New York, New 	Hampshire, 	Nevada, 	Vermont,
Virginia, 	Alabama, 	Missouri, 	Mississippi, 	Ohio, 	Iowa,
Kansas, Minnesota, Rhode 	Island, 	Nebraska, 	Texas, 	and
Georgia-in all, thirty stares. 	It also 	appears from 	the
said proclamation, that the state of New York, by its legis-
lature, passed resolutions withdrawing the previous ratifica-
tion. 	The power of a state thus to withdraw its previous
ratification has been strenuously asserted and as strenuously
denied. 	Upon the question, however, we do not pass, 	for
even if the state of New York had the power so to do, the
necessary number of states ratifying the said amendment
still remains. 	It is conceded that if the said amendment
was legally ratified by the necessary number 	of 	stares
th.rough their legislatures, 	and the proper returns 	made
thereof to the department of state 	at the 	federal 	capital,
then the secretary of state, acting in behalf of the president
of the United States, had the power and 	authority, 	in the
discharge of his official duty, to issue, or cause to be issued,
such proclamation. 	The fact of his having issued it, basing
his action, as he necessarily did, upon the official returns
filed in the department over which he presides, carried with
it prima facie evidence of the legal ratification of the said
amendment. 	We cannot presume otherwise, 	than 	that 	he
regularly performed his official duty, and 	that the 	resolu-
tions of the legislatures of the states named, 	ratifying the
amendment were in his custody, having been placed 	there
officially. 	In the record and 	proofs of this case 	we 	find
nothing overcoming this prima f acie evidence 	or lessening·
the force of this presumption. 	The question of the legality
of the ratification of this amendment is one which is exceed-
ingly difficult of solution. 	I£ it is a political question, 	it
can only be properly passed upon by the people or their--
representatives, and judicial inquiry is, from the very na-
ture thereof, precluded. 	If judicial, then the courts have
the power to inquire into and pass upon every step taken
and every vote cast, in congress and in the legislatures, in,

Sept. 1870] 	WooD v. FrTzGERALD. 	579
every stage of the progress of the amendment, from the time
it was first proposed in the congress of the United States, to
the date of the issuing of the proclamation by the secretary
of state. 	This would certainly open up a wider range of
jurisdiction than has ever before been traversed by any state
court, and whatever may be the powers of the federal courts
in this direction, it must be conceded, we think, that no state
court has the necessary power or jurisdiction to marshal be-
fore it, the proofs necessary to establish any disputed question
of fact in connection with the passage and ratification of this
amendment.
Let us assume, however, for the purposes of 	this 	case,
that it is a judicial question. 	A careful examination of the
records discloses nothing to warrant the court in pronounc-
. ing it illegal and void. 	It is true, counsel in the argument,
alluded to certain facts of pretty general notoriety, which, if
true and 	properly 	established, 	,vould 	undoubtedly weigh
heavily against the validity of the amendment, but they were
all extraneous to the record, and lacked those qualities neces-
sary to command or justify judicial consideration. 	The
manner of the adoption of this amendment is 	a matter of
history, and while individuals may be constrained to believe
it an unwise measure of government policy, and while the
very peculiar circumstances attending its ratification by the
legislatures of some of the states render it obnoxious to ex•
ception, yet in view of the ascertained facts in this ·case, we
cannot do otherwise than declare it to be a valid amendment
to the federal constitution. 	To hold otherwise under the
circumstances would be to unwarrantably overthrow certain
well established principles of law, and give to judicial dis-
cussion such a coloring of partisan feeling as would lead to
very unfortunate results. 	We proceed next to consider thE>
effect of this amendment upon article II, sec. 2, of the state
constitution. 	Prior to the ratification of 	the 	said 	amend-
ment the several states had complete control over all ques-
tions of suffrage, that being among the powers reserved by the
tenth amendment to the federal constitution. 	By the ratifica-
tion of the fifteenth amendment they in a measure parted

580 	Woon v. FITZGERALD. 	[3 Oregon
with this re-served right so far as to acquiesce in the removal
of all restrictions heretofore existing "on account of color, or
previous condition of servitude," and to agree not to abridge
the right granted by that amendment, leaving negroes, who
are recognized as citizens by certain act,a of the federal con-
gress, free to exercise the privileges of the elective franchise
in any and all the states upon the same conditions as white
persons. 	Having been ratified, this 	amendment became a.
part of the federal constitution-part of the supreme law of
the land and it,a effect is to deprive the 	provisions of the
state constitution and the acts of the 	state legislature, 	re-
stricting the exercise of the suffrage to white persons, of all
legal force and efficacy. 	The votes of Yates and Ford will
remain as cast, and as 	counted 	by 	the 	court 	below. 	In
passing upon this case, the court below refused to allow the
votes of seven persons, cast for appellant.a, and those of four
other persons cast for the respondents; it having found that
though otherwise qualified, 	they voted out of the several
precincts in which it was claimed they resided. 	Article II,
section 17, of the state constitution, declares that "all quali-
fied electors shall vote in the election precinct in the county
where they may reside £or county officers, and in any county
in the state for state officers, or in any county of a congress-
ional district in which such elector may reside for members
of congress." 	This provision appears to be the basis upon
which rest,a section 1 of title I of chapter XIII, p. 695 of the
general laws, which section provides, 	among other things,
"that ninety days b01UJ, fide residence in a county, next pre-
ceding an election, shall be required to entitle a. person 	to
vote for county a.nd precinct officers, and likewise ninety
days preceding such election in a district for district officers."
It clearly appears that a person who has resided in the state
of Oregon for six months, and is otherwise qualified, 	may
cast his vote for any candidate for any state office in any
county in the state, aiso, that being a citizen of the 	state,
a.nd having resided in a certain district ninety days next
preceding an election, he may vote for any candidate for
any district office in any county in the district wherein he

Sept. 1870] 	Woon v. FITZGERALD. 	581
may be on the day of the election. 	Assuredly, 	then, 	the
logical sequence would be, that, having resided in a certain
county ninety days next preceding an election, 	the 	elector
may vote for county officers in any part, or precinct rather,
of the county. 	But it is not in view of the law proposed to
lay down such a broad and comprehensive rule, the purpose
of this inquiry being simply to ascertain and arrive at what
should be the just and proper rule by which to decide the
exact point presented.
It appears that the persons referred to, though they re-
sided within the county, had no fixed and settled domicile
in any precinct therein, but that from the nature of their
avocations-being for the most part stock 	raisers, 	herders
and transporters of freight-were 	constantly changing the
locality of their temporary domiciles. 	There is no law upon
the statute book which fairly 	reaches the circumstances of
the persons whose right to vote is now being inquired into.
General rules we have, and a number of legislative enact-
ments, which, if we were to construe them narrowly, might
be cited in opposition to their right to vote. 	But it is not
our intention to place upon 	these 	laws 	an 	interpretation
which, while it agrees with the letter, totally disregards the
spirit thereof. 	Every qualified resident of a county has a
right to cast his vote therein for county officers. 	As a mat-
ter of abstract justice, the mere fact of his being :fixedly
domiciled in some one of the precincts therein, should not
invest him with greater rights than should be accorded to
one who may chance to reside in a part of the county where
no precinct has been erected, or to one whose employment
obliges him to shift his domicile from point to point, with
such frequency as to prevent him from acquiring the quali:6.-
cation of a residence of ninety days in any given precinct.
AU these classes are equally interested 	in the 	proper ad-
ministration of the affairs of the county, as well as of the
district or of the state, and should in all fairness be allowed
a vote. 	It is true that when an individual has established
for himself a settled residence and fixed 	domicile 	in any
precinct of a county, there he must vote. 	When, however,

582 	Woon v. FITZGERALD. 	[8 Oregon
an individual is a bona fide resident of a oounty, but has no
:fixed residence or 	domicile 	in 	any 	particular 	precinct
therein, he may vote in any precinct in which he finds him-
self on the day of election. 	It may be that by allowing this
class of persons to vote in whatever precinct they chance to
be on the election days, may increase the facilities for the
perpetration of fraud, and may induce reckless 	persons 	to
repeat their votes, but if the laws punishing fraudulent
vot.ers are enforced as they should be, the danger to be ap-
prehended is not so great as the wrong of unnecessarily and
arbitrarily restricting the privileges of that large number
of worthy and energetic citizens, who, from the nature of
their honest employment, frequently have no fixed residence,
and are constantly called upon to shift even their temporary
abodes, from point to point, in order to properly oonduct
their business. 	Being well 	assured 	that our 	views 	upon
this branch of the case agree with the spirit of the law, we
shall allow these votes to remain as they stand upon the poll
books.
Appellant's counsel charge error in the 	court below, 	in
counting the votes of H. Orellish, E. Bernard, and E. 	A.
Willis. 	These persons 	voted 	for 	the 	respondent, 	but 	it
appears that their votes were excluded from the final count
'by the judges of election, in the manner prescribed by sec-
tion 23, p. 7'02, of the general laws. 	From the statement
of agreed facts, it appears that they were 	all 	persons 	of
foreign birth, and that they had resided long enough in the
state and county to be entitled to vote, if otherwise quali-
fied. 	It also appears that they had been naturalized less
than six months prior to the election, and having previously
served in the armies of the United States, were admitted to
citizenship in the manner set forth in section 17' of the act
of congress, in relation to the naturalization of aliens. 	It
is urged that, notwithstanding this 	section 	dispenses 	with
any previous declarations of intentions, and permits 	the
naturalization of an alien, under certain 	circumstances, 	to
proceed without such previous declaration, still such person
cannot exercise the privilege of an elector until one year has

Sept. 1870] 	Woon v. FITZGERALD. 	583
elapsed from the date of his naturalization. 	In support of
this proposition, counsel cite article II, section 	2, 	of 	the
state constitution, and particularly that part thereof, which
declares that "every white male of foreign birth of the age
of twenty-one years and upwards, who shall have resided in
the 	United 	States one year, 	and 	shall have 	resided 	in
this State during 	the 	six 	months 	immediately 	preceding
such election, and shall have declared his 	intention 	to be-
come a citizen of the United States one year preceding such
election, 	* 	* 	* 	shall 	be 	entitled 	to 	vote, 	at all
elections authorized by law," and insist that in 	cases 	such
as these, this constitutional provision becomes a dead letter,
unless we treat the naturalization of an alien under section
seventeen of the act 	of congress 	referred 	to, 	as nothing
more than a declaration of intention, 	and refuse him the
privilege of voting until a full year has elapsed from 	the
date of such naturalization. We confess our utter inability
to discover any legal or logical force 	in the proposition
presented. 	The question: 	Should these votes be counted 1
furnishes its own answer. 	"When these persons were natural-
ized, they became citizens of the 	United 	States instantly,
and as such had a right to vote, for it is agreed that they
had resided in the state and, county a much greater length
of time than the law requires. 	The court 	below 	counted
these votes, adding them to the number cast for respondent,
and in so doing, did not err.
The next question of impottance that presents itself, is as
to the proper disposition 	of the 	costs herein. 	The 	court
below having found in favor of the respondents, adjudged
that they have and recover costs and 	disbursements. 	Was
this judgment erroneous ? 	We think it was, and 	for these
reasons. 	All the authorities concur in declaring the right
to recover costs to be 	purely statutory. 	No 	such 	right
existed at common law. 	The 	authority 	to tax 	costs 	and
disbursements eo nomine in favor of the prevailing party in
the English courts, is found in the statute of Gloucester, 6
Edward I, c. 1, and in the statutes, 23 Henry VIII, c. 15;
4 James I, c. 3; 8 & 9 William III, c. 11; and 4 and 5 Anne,

584 	Woon v. F1TzGERALD, 	[3 Oregon
c. 16; and the various amendments thereto. 	In this state,
th~ right to recover costs is given by the 	code; 	the 	pro-
visions in relation thereto being in principle and 	effect
similar to the English statutes named. 	The rule above set
forth is clearly laid down in Olarlc v. Dewey 	(15 	Johnson,
250); in Waterman v. Ben$chotten (113 Johnson, 425), and
in The Supervisors of Onondaga v. Briggs (3 Denio, 174),
and is fully recognized and followed in McDonald i,. Evans,
recently decided by this court. 	Upon this point, see Bouvier's
Dictionary, vol. 1, title, costs, subdivision 2, 	and 	the 	au-
thorities there cited. 	These principles 	0£ 	law 	being set-
tled clearly and beyond all contention, let us apply them to
this case. 	Title V of chapter 13 0£ the general laws, pro-
vides for and points out the manner of contesting the elec-
tion of district, county, and precinct officers. 	It is 	sing11·
larly silent upon the 	subject of costs 	and 	disbursements.
Title V, of chapter 6 of the code of civil procedure, is
dev.oted entirely to the subject of costs and 	disbursements,
and sections 539 and 541 enumerate or describe the cases in
which 	the 	plaintiff or defendant is 	allowed 	to 	recover
costs. 	Neither of the 	sections 	contain any 	reference 	to
a case 0£ contest of election. 	It is evidently a casus omisSU8.
Section 543 of the code, provides that "a party entitled to
costs, shall also be allowed £or all necessary disbursements,"
etc.
From the application of the rules of construction just re-
ferred to, it follows, that unless 	a 	party is 	allowed costs
he cannot recover disbursements. 	For the recovery of dis-
bursements is made dependent upon the 	recovery 	of costs
by the statute. 	It follows, therefore, that in cases of contest
of election, under title V, of chapter 13 of the general laws,
costs and disbursements cannot be recovered, and the court
below erred in entering a judgment therefor.
As regards the votes of the other persons named in the
brief, and referred to in the argument, we find that they
were disposed of on questions of fact solely, and upon ex•
amination, 	we have 	concluded not to interfere with the
findings of the court below in relation thereto.

Sept. 1870] 	W 00D v. FITZGERALD. 	585
From the above, it follows, that to the number 0£ votes
polled £or Wood and :Mays, 	as ascertained by the court
below, there should be added the votes 0£ 	Zettler, 	Snooks,
Brown and Curry; and to the number of votes polled for
Fitzgerald and Wingate, should be added the votes 0£ Hen-
derson, Kimoorlin, :Masterson, Scroggins, :Manning, 	Wil-
liarns, Strau and :Meng. 	The number 0£ legal votes, 	there-
fore, £or each candidate stands as follows: 	Wood, 	315 ;
Fitzgerald, 309; :Mays, 307 and Wingate, 306. 	Wood and
Fitzgerald having each a majority over the other candidates,
are entitled to the 	offices 	of 	commissioners 	of 	Wasco
County.
Let judgment be entered and certificates issued 	accord-
ingly.