Appeal from Sixth District.

themselves, incriminate them. Whether such would or would. not be the case under the circumstances is not now material, and is not decided.

2

Counsel for the defendants, however, insist that the witnesses in question were qualified electors at the election in question, although at the time of the election they may not have resided within the election districts in which they cast their ballots. This contention is based upon section 53, c. 106, Laws 1911, supra, which, so far as material here, provides:

"Any person shall be qualified to vote at any election held in any city or town hereunder who was qualified to vote at the last city or town election in the voting district in which he offers to vote; such qualification shall be shown by the official register used at such last city, town or general election."

In section 60 of the same chapter it is also provided that "the provisions of the election laws of the state, relating to elections in cities, towns and general elections * shall apply" in "all matters and proceedings not herein specified," so far as the same are applicable.

Counsel contend that under the provisions of section 53, 'supra, although the voter may have lost his residence in a voting district at the time of holding an election under chapter 106, yet, if he was a qualified voter in such district at the preceding city election, he is still a qualified voter. We cannot so construe the section. Under our election laws a part of the necessary qualifications of the voter is that he reside in the voting district at the time of the election, and that he be registered therein, or that his registry be transferred thereto some time before the day of election, and it is made a ground of challenge "that he does not live in the election district." Comp. Laws 1907 sections 812-846. All those provisions apply to all elections, general or special, and all must be given effect if possible. As we view it, therefore, the proper construction of section 53, supra, is that if a person was a qualified voter in a particular election district by having complied with the registration laws of this state, he may rely upon that registration at any election held under chapter 106, provided

Beauregaard v. Gunnison City et al., 48 Utah 515.

he still resides within the district in which he offers to vote, but if he has ceased to be a resident of such district, he may have his registry transferred to the district in which he resides, as provided in section 812, and may vote upon such transfer as in other cases. The voter, however, may not, after he has lost his residence in a certain voting district, return thereto and cast his ballot therein merely because he was qualified to do so at the last preceding city election. All that the statute means is that the voter need not re-register for any election held under chapter 106, and that the preceding registry for the city election is sufficient qualification in that regard. If a voter has removed from the district, however, he may not return thereto to vote at such an election any more than he could do so at any other election. From the foregoing it necessarily follows that if there were any votes cast at the election in question by those who did not live within the voting district as required by our statute, at the time of the election, in which they cast their ballots, such ballots were illegal, and should not have been counted.

3

It is next contended that the court erred in holding that the vote of one Henry Knighton was legal. On the day of the election, and for more than sixty days prior thereto, Knighton, who is a married man, lived with his wife, Emily Knighton, in voting district No. 1. He voted in district No. 2. Now, in view that the court ruled that Mr. Knighton need not testify concerning his place of residence, counsel rely upon the presumption that a husband's residence is that of his family. In 14 Cyc. 861, it is said:

"The domicile of a married man is presumed to be at the place where his wife or family resides."

If Mrs. Knighton lived, that is, was domiciled, in voting district No. 1, the presumption is that her husband also lived there, and the presumption would prevail until the contrary was shown. 14 Cyc. 558; State v. Savre, 129 Iowa, 122, 105 N. W. 387, 3 L. R. A. (N. S.) 455, 113 Am. St. Rep. 452; Guggenheim v. City of Long Branch, 80 N. J. Law, 246, 76 Atl. 338. In State v. Savre, supra, the Supreme Court of Iowa, in referring to the question of residence, says:

Appeal from Sixth District.

"There is no absolute criterion by which to determine one's place of residence. Each case must depend on its particular facts or circumstances. Three rules, however, are well established: (1) That a man must have a residence or domicile somewhere; (2) when once established, it remains until a new one is acquired; and (3) a man can have but one domicile at a time."

We are of the opinion that Henry Knighton's residence presumptively was in voting district No. 1, where his wife lived, and that the presumption should prevail until the contrary is shown by proper evidence.

4

What we have said about Knighton also applies to one Sylvester Pierce. With regard to the latter it was shown that in 1914, at the general election, Pierce lived in Fayette, and that in that year he was registered and voted there, Fayette is some miles north of Gunnison City, and constitutes a separate and distinct political organization and voting precinct. Mr. Pierce, however, voted at the election in question in Gunnison City upon a registry he had there in 1913. There was no proof that Mr. Pierce had changed his residence after voting in Fayette in 1914. We think that, in view that Mr. Pierce had established a voting residence in Fayette in 1914, and not having been thereafter registered in Gunnison City as a voter therein, the presumption should prevail that he was still a resident of Fayette until that presumption is overcome by proper evidence.

But merely to show that Mr. Knighton and Mr. Pierce voted illegally would not necessarily change the result of the election. Counsel for plaintiff, therefore, called Mr. Pierce as a witness on behalf of the plaintiff and attempted to show by him that he had acted and affiliated with what, in the record, is called the "drys"; that is, those who voted against the sale of intoxicating liquors in Gunnison City. The witness, however, claimed his privilege, and, while the court required him to answer certain questions, it thereafter struck out all the evidence as privileged. If Mr. Pierce at the time of the election was a legal voter in Gunnison City, he could not be questioned with regard to how he voted, since that claim would be within his privilege. In other words, he could claim the privilege or he could waive it as he saw fit. If he

Beauregaard v. Gunnison City et al., 48 Utah 515.

was not a legal voter in Gunnison City at the time of the election, and therefore had cast an illegal ballot, then he could not claim the privilege unless he might do so upon the ground of self-incrimination. We have, however, already held that he, the same as other voters, would be immune from prosecution and punishment, and therefore the court erred in sustaining the claimed privilege and in striking out his testimony.

5

We are also of the opinion that the evidence was sufficient to raise a presumption that Mr. Pierce had voted against the sale of intoxicating liquors. It was clearly shown that he was affiliated and acted with the "drys"; and it was shown that he was quite active in that regard. This is not a case where it is necessary to hold that because a certain voter has affiliated with a certain political party, from that fact alone it may be inferred that he voted for a particular candidate of his party. There may be many good and sufficient personal reasons why a voter did not vote for a particular candidate who was upon his party ticket, although he may have voted that ticket. In this case, however, all there was to vote for was the party ticket. That is, there was but one proposition, and that is whether the voter was for or against sale. We think therefore, there is no other reasonable inference under the circumstances than that Mr. Pierce did vote the ticket of the party with which he affiliated and acted on the day, and prior to the day; of election. That such an inference arises under the circumstances of this case is, we think, generally held by the courts. In Tunks v. Vincent, 106 Ky. 829, 51 S. W. 622, the evidence respecting the voter's political affiliation and conduct was much weaker than in the case at bar, yet the Supreme Court of Kentucky held that the evidence was sufficient to justify an inference that the voters, not only had voted his party ticket, but that he had also voted for the particular candidate whose election was in question. In Rexroth v. Schein, 206 Ill. at page 97, 69 N. E. at page 247, the Supreme Court of Illinois, in passing upon this question, said:

"The party affiliations of the voter have been uniformly held sufficient to raise the presumption that he cast his ballot for the

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nominees of the political party of which he was a member, and this proposition, in the absence of any countervailing proof or circumstances, is, it seems, to be accepted as determining for whom the voter cast his ballot" (citing a number of cases).

It is, however, not necessary to go to that extent in this case. It is sufficient to hold, and that is all we do now hold, that the evidence as it now stands is sufficient to justify a finding that Mr. Pierce voted the ticket of the political organization he affiliated and acted with on the day of, and prior to, the election in question. That is all that, under the circumstances of this case, it is necessary to find in order to determine how Mr. Pierce voted upon the question of sale or no sale.

6

Counsel for plaintiff, however, also attempted to show for what party some of the voters cast their ballots by seeking to prove their declarations in that regard. Counsel for the defendants objected to the evidence respecting the declarations upon the ground that the same was incompetent and hearsay. The court excluded the evidence, and counsel for plaintiff insist that the ruling constituted error. The authorities are in hopeless conflict upon the question. No doubt the present state of the authorities is largely due to the fact that the English courts have always held such declarations competent, and many of the legislative bodies of this country have followed the English rule. Many of the American courts, however, have always regarded the English rule with disfavor, and have refused to follow it. Mr. McCrary, in his excellent work on Elections (4th Ed.) sections 483, 484, insists that the "better considered cases" are all against the English rule, and that those cases exclude such declarations as hearsay unless they constitute a part of the res gestae. Mr. McCrary's statement is supported by the following cases: Gilleland v. Schuyler, 9 Kan. 569-583; Sharp v. McIntire, 23 Colo. 99, 46 Pac. 115; Dean v. State, 56 Neb. 301, 76 N. W. 555; Berry v. Hull, 6 N. M. 643, 30 Pac. 936; Black v. Pate, 130 Ala. 514, 30 South. 434; Lauer v. Estes, 120 Cal. 652, 53 Pac. 262; Hill v. Howell, 70 Wash. 603, 127 Pac. 211. The question is learnedly discussed in the case from Nebraska, and it is there held that if the declarations are part of the res