In

shall be paid out of the ordinary current revenue collected in the year the debt or liability was contracted;" though the case was really decided upon another more general provision of the charter which it was held gave the council greater powers. New Jersey 28 that, under a charter empowering the city council "to order the raising, and cause to be raised, by tax, from year to year, such sum or sums of money as they shall deem expedient for defraying (among other things) the supplying of said city with water," a contract for a series of years for such purpose, with annual payments, was valid; the court holding "that an unlimited authority to obtain from loans the funds requisite for the performance of this contract" existed. That "the power to raise money annually is quite as consistent with an agreement calling for annual payments through a series of years as it is with an agreement existing but for a single year." In Nebraska, 29 that a twenty-five year contract for water, under the circumstances there existing, was valid as against a suit to enjoin the city authorities from acting under it, though the contract contemplated payments which would exceed in amount the limit of assessment for that purpose; that the statutory limitation of indebtedness applied only to the excess of indebtedness under the contract over the statutory limit. The contract provided that a water fund out of the general tax should be devoted to hydrant rentals. In Wisconsin,30 it was held that an eight-year electric light contract providing quarterly installment payments will not be presumed to violate a charter prohibiting levying a general tax of two per cent. for city purposes; the charter providing "the city shall have no power to borrow money or contract any debt which cannot be paid out of the revenues of the fiscal year;" the court holding that the city only had to "rovide for and pay a debt, to-wit, the annual payment, during any year. In Pennsylvania,31 that a contract involving annual payments increases the indebtedness of the corporation by the

the court, though not deciding whether the contract there involved could be sustained for the entire period of its duration, held, that the city was liable for gas already furnished for, accepted and used by the city under the contract with the gas company; but the right to enter into a contract and incur the indebtedness there incurred seems to have been plainly given by legislative act, of which the gas company was the beneficiary. The court held that the thirty-year contract there involved, the payments under which for the whole term would exceed the constitutional limit, was not prohibited by the constitution; that the indebtedness created thereby did not extend to the amount of the aggregate payments under the contract, within the meaning of the constitution, but only to the extent of gas furnished and for which payments are due. In Iowa83 that, under a constitutional provision that no municipal corporation shall "become indebted in any manner to an amount exceeding five per centum," etc., the issuance of scrip for an aggregate amount greater than allowed by the constitution as indebtedness did not create an indebtedness under the constitution; it not appearing that there was not sufficient money in the treasury to meet the amount of scrip involved in the suit, and that the amount of the indebtedness incurred would be the amount of scrip payable annually, when due. The Indiana court, in a well considered opinion, reaches the same conclusion, holding that a contract for twenty years for water supply with annual payments therefor, does not create an indebtedness within the constitutional provision, except as to water furnished and for which a payment is due. The court relies largely upon the Iowa decisions, remarking that the Indiana and Illinois constitutional provisions upon the subject are taken from that of Iowa, though admitting that the Illinois courts seem not to have followed the Iows decisions.

2. Upon the question of binding obligation, or what amounts to an indebtedness

41

36

In an

mind that the nature of the particular contract, the provisions of the law, as well as the character of the suit, and the situation of the parties relative to compliance with, or recognition of, the contract, have had a very material, and in some cases controlling, influence in the decision of the point. In adjudicating upon this question, some of the courts, viz: Minnesota, West Virginia, Illinois, 37 New York,88 Indiana,39 and Montana,40 have used the terms "indebtedness," "liability," "incur liability," "contract any debt," "become indebted," "legal liability," and "incur obligations," interchangeably, or as referring to the same character of binding obligation, in deciding that a prohibited indebtedness existed in the given case. Illinois case, it was said, in holding that there was no indebtedness under the contract in question, until something had been furnished the city under it and a payment due therefor, that "then there is a liability, an indebtedness arises, and not before." Iowa,42 in passing upon the question whether a liability was created when the contract there in question was made, the court observed: "But the obligation to pay, so far as the time of its inception as between the parties is concerned, is one thing, and an actual indebtedness within the meaning of the constitution, quite another." While in Indiana the term "become indebted" involved in the contract under consideration, is thus treated: "The effect of the proposed contract is that the city shall be liable for water as it is furnished and not before. It is not until after the water has been furnished that there can be justly said to be a debt." And in New York, in dealing with an executory contract with a city, this language is used: "It was, no doubt, an obligation, in

In

35 Johnson v. Broad of Com'rs, 6 N. W. Rep. 411, 27 Minn. 64; Rogers v. Comr's, 59 N. W. Rep. 488; Kiichli v. City of Minneapolis, 59 N. W. Rep. 1088.

36 Spilman v. City of Parkersburg, 14 S. E. Rep. 279, 35 W. Va. 605.

37 City of Springfield v. Edwards. 84 Ill. 632: Prince

some sense, from the time the contract was entered into, but it was not a debt in the popular sense, and certainly not one to which the correlative term 'payment' could with propri ety be applied." While the federal court, following the Oregon court,46 in deciding whether an indebtedness existed, held that the contract under consideration, which in terms required stated payments to be made but made no provision for payment as they fell due. necessarily created a debt * within

47

the meaning of the constitution." But in another federal case, which went up from Washington, a similar contract was treated in this wise: "If the money shall be earned, the city will avoid an accumulation of debt by paying according to the contract; while the contract creates a binding obligation, it does not create a debt." Turning to the authorized definitions of liability,” “debt" or "indebtedness," we find that Anderson** defines liability as follows: "Obligation to pay money; indebtedness; a debt." Bouvier, 49 as "responsibility; the state of one who is bound in law and justice to do something which may be enforced by action." Webster,50 as "that which one is under obligation to pay, or for which one is liable. Specifically, in the plural, the sum of one's pecuniary obligations." Anderson defines debt to be: "Whatever one owes

a fixed and certain obligation to pay money or some other valuable thing, in the present or in the future;" and further illustrates by saying: "A sum of money promised at a future date is 'a debt owing,' and a sum now due and payable is ‘a debt due.' Bouvier defines indebtedness thus: "The state of being in debt, without regard to the ability or inability of the party to pay the same. But in order to create an indebtedness there must be an actual liability at the time, either to pay then or at a future time." While Webster53 defines "indebted" as follows: "Brought into debt; being under obligation;

held to navment or aggr

derson defines conditional or contingent liability to be "one not absolute but depending upon an uncertain event;" instancing the case of an indorser's liability to pay a nego. tiable note. As bearing upon the question of municipal indebtedness in this class of cases, an eminent author on municipal corporations should be consulted. It would seem to be deducible from the authorities that, unless there is something in the language of the organic law specially characterizing the indebtedness which may be contracted for by a municipality, which clearly permits any debt to be contracted which may be provided for annually by permissible taxation, either generally or through the raising of a special fund to which alone the creditor must resort, the time contracts of the nature of those treated of in this article should be regarded as involving indebtedness in the aggregate amount of the yearly or other stated payments, within the meaning of constitutional or legislative provisions limiting municipal indebtedness or liability; that a given case should, prima facie, be regarded as presumptively within this general rule; that the mere fact that the debt due may be met out of annual revenues by taxation is not decisive; that taxes cannot be anticipated to pay current expenses, unless already levied, nor even then in excess of legal limits; that where an appropriation is required to be made at the time of making the contract or incurring the indebtedness, such provision is a condition precedent to the incurring of any debt, regardless of the limit; that as to what is an indebtedness or liability in the premises, the distinction laid down in some cases between indebtedness and liability is not generally recognized, and is contrary to the usual and commonly accepted import of the latter term as evidenced by decisions of the courts and the authorities defining it. It was said by Judge Drummond in a federal case,56 whose language is cited with approval by Judge Dillon:57 "In all cases of contracts to run for years, the authority to make them should be clear. It is better that all parties should understand there is a limit to the power of municipal bodies in such

54 Dict. of Law, 616.

55 Dillon on Mun. Cor., Vol. 1 (4th Ed.), Sec. 150 137. 56 Garrison v. Chicago, 7 Biss. 480.

57 Dill. on Mun. Cor., Vol. 1 (4th Ed.), Sec. 131.

cases." And in the West Virginia cases the learned judge writing the opinion says: "Such limitations have been found by experience to be necessary to prevent extravagance, or remedial in their nature, are based on the wise policy of paying as you go, and ought, therefore, to be construed and applied to secure the ends sought." And speaking of the constitutional provision there involved, remarks: "The people must be in earnest about this matter, or they would not by their organic law have barred out this debt-creating power with a triple hedge of safeguards. Its wisdom is unquestioned, and it has found or is rapidly finding its way into all State constitutions."

A word as to construction of statutes and constitutional provisions bearing upon this subject. Their language relative to incurring of municipal debts is imperative, and the power to contract is limited accordingly.59 Negative words in granting power cannot be construed to be merely directory.60 Prohibitory statutes must not be interpreted on a principle of leniency. The grant of power must be strictly construed, and doubtful clauses as to the extent of the power must be decided against it.62 Pierre, S. D.

61

CHAS. E. DELAND.

Supreme Court of Colorado, June 29, 1896.

1. Const. art. 7, § 1 (Mills' Ann. St. § 1571), which requires a voter to reside in the State six months immediately preceding an election, to be entitled to vote, means an actual settlement within the State, adopted as a fixed habitation.

2. On the issue of residence of voters, declarations made by them at the time of voting, in the presence of the judges of election, are admissible as a part of the res gestæ.

3. Where declarations were made through an interpreter, a witness is competent to testify to such declarations only as he understood without the aid of the interpreter.

At the general election of 1895, in Lincoln county, Colo., Robert B. Sharp and Archibald McIntire were rival candidates for the office of county commissioner of said county. Upon the canvass of the votes cast at such election for that office, McIntire was elected by a majority of four votes, and a certificate of election issued to him. His election is contested by Sharp upon the sole ground that there were cast in Rush Creek voting precinct, No. 5, in said county, nine votes for McIntire which were illegal, by reason of the lack of the residence qualification of the voters casting the same, in this. to wit: that the true place of residence of eight of said illegal voters -Trinidad Gomez, Nazarus Gallegos, Andreas Medina, Victor Anallina, Vincent Garcia, Juan Martinez, Antonio Martinez, and Francisco Quintana-was at the date of said election in the territory of New Mexico, and the true residence of one Alario Medina was at the time in Costilla county, Colo. It is admitted in the pleadings that said votes were cast for McIntire. Trinidad Gomez was introduced as a witness on the part of contestor. His testimony was to the effect that his home, and also that of Francisco Quintana, Nazarus Gallegos, and Antonio Martinez, was at Cerro, N. M., where their wives and families lived; that they came to Lincoln county, Colo., in the spring, to work during the summer, and at the close of their season's work returned to their homes and families, at Cerro, N. M.; that he (Gomez) had been in the habit of so coming to Colorado since 1890; that the others had also been doing the same for several years; that in 1895 he came on March 27th, to remain eight months; that when he was subpoenaed as a witness in the case he was on his way home, having received word that his wife was sick; that the other parties named had then returned to their homes, in New Mexico; that these parties did not bring their wives or families to Lincoln county. He testified that he did not know Andreas Medina, Alario Medina, or Juan Martinez. Sharp was sworn in his own behalf, and testified that he was appointed watcher and challenger at the polls in Rush Creek voting precinct, No. 5, at the election on November 5. 1895, and that he challenged the above-named parties' right to vote at such election. Upon objection by counsel for contestee, witness was not allowed to testify to the conversation he had with these parties. His counsel thereupon offered to prove by him that he (Sharp), at the time these parties appeared to cast their vote, had the following con

asked them, and each one of them: "Q. Where do your wife and family live?" And that they, and each one of them, answered said Sharp that they lived at Cerro, N. M. He also offered to show by this witness that the same conversation occurred, in the same interval before they voted, with Andreas Medina, Vincent Garcia, Juan Martinez, and Antonio Martinez, and that the conversations were identically the same, except that said voters did not state the name of the town, but limited their answers to the fact that they and their wives and children lived and resided in New Mexico. Counsel offered to show by the same witness that he had a similar conversation, under similar circumstances, with Alario Medina, who stated that his residence and the residence of his family was in the San Luis Valley, in Costilla county, Colo. Upon objection of counsel for contestee this evidence was excluded. The determination of the court below was adverse to contestor, and in favor of contestee. From this judgment Sharp prosecutes this appeal.

GODDARD, J. (after stating the facts): One of the essential qualifications of a voter prescribed by our constitution and statute is that he shall reside in the State 6 months immediately preceding the election at which he offers to vote, in the county 90 days, and in the ward or precinct 10 days. Section 1. art. 7, of the constitution (section 1571, Mills' Ann. St.). The merits of this controversy, therefore, depend upon the construction to be given to the residence qualification thus prescribed. It is contended by counsel for contestee that the word "reside," as therein used, signifies to dwell, abide, or live in the State, and that when a person has actually lived in the State the specified time he meets this requirement. With this construction of the word we cannot agree. We think the residence therein contemplated is synonymous with "home" or "domicile," and means an actual settlement within the State, and its adoption as a fixed and permanent habitation. and requires, not only a personal presence for the requisite time, but a concurrence therewith of an intention to make the place of inhabitancy the true home, and that one who has made a home or domicile in some other State or territory, where his family reside. cannot, by a sojourn here on business or pleasure, however long, without abandoning such former domicile, acquire a residence, in the constitutional and statutory sense. Such is the meaning and signification given to the word by the courts

It is equally clear that the electors of the State are those who have their homes within it, and not elsewhere. Their domicile is there, and their home is the place where they permanently reside, and to which they intend to return when away from it. It is also clear that one domiciled in another State cannot be an elector here, though he be resident here for some temporary purpose, or on some special business, and though his stay may be prolonged upwards of a year. Therefore, when the constitution declares that the elector must be a resident of the State for one year, it refers, beyond question, to the State as his home or domicile, and not as the place of a temporary sojourn." We think there can be no doubt that, in adopting this constitutional provision, the convention intended to adopt it with the construction that had theretofore been given it. And we think the court below erred in ignoring, as it evidently did, this necessary qualification of some of the voters challenged. It is further urged that the court also erred in excluding the alleged declarations of the parties. While it is held in some of the authorities that the unsworn declarations of a voter are inadmissible to impeach his qualification to vote, when made prior or subsequent to the time of voting, upon the ground that they are hearsay, and among them the case of People v. Com'rs of Grand Co., 7 Colo. 190, 2 Pac. Rep. 912, we know of no case that holds that such declarations are inadmissible when made concurrently with the act of voting, and constitute a part of the res gestæ. Abundant authority is found that upholds the admissibility of declarations made under such circumstances. Among them, see City of Beardstown v. City of Virginia, 81 Ill. 541; Rucks v. Renfrow, 54 Ark. 409, 16 S. W. Rep. 6; Patton v. Coates, 41 Ark. 111. In Gilleland v. Schuyler, 9 Kan. 569, wherein it was held that statements of third parties as to the number of times and the names under which they voted were hearsay and incompetent, and were excluded because relating to past transactions, yet the court say: "These declarations were not made at the polls by persons conducting the election, and so as to make part of the res gesta; nor do they accompany a principal fact which they serve to qualify or explain." We think, therefore, that the declarations sought to be introduced in evidence in this case, having been made at the immediate time of voting, in the presence of the judges of election,

was through an interpreter, and their answers were in Spanish. The witness, therefore. was competent to testify only to such declarations as he understood without the aid of an interpreter. For the foregoing reasons the judgment of the county court is reversed, and the cause remanded. Reversed and remanded.

NOTE. In almost all cases, outside of attachment statutes, the words "residence" "inhabitancy," "citizenship" and "domicile" are convertible synonymous terms. See note to Berry v. Wilcox, 48 Amer. St. Rep. 711, 6 Amer. & Eng. Encyclopedia of Law, 275. The difference in meaning between the words "residence" and "domicile," when applied to attachment laws and bankruptcy statutes, is pointed out in notes to Frost v. Brisbin, 32 Amer. Dec. 427, and Ringgold v. Barley, 59 Amer. Dec. 111, and consists in the fact that within the meaning of such laws "domicile" and "residence" are not convertible terms; for domicile may be in one place and residence for the time being in another. The term residence signifies place of habitation and has not the same idea of permanency as that expressed by the term "domicile," as used by European writers, but conveys the same idea as that word, as used by Judge Story, who defines it as "the place where a person's habitation is fixed without any present intention of removing there. from," which definition is adopted by the Supreme Court of Pennsylvania. Hindman's Appeal, 85 Pa. St. 466. In Pennsylvania also it is said, residence in the constitution means the same as domicile-the place where a man establishes his abode, makes the seat of his property, and exercised civil and political rights. Chase v. Miller, 41 Pa. St. 403. In Illinois, residence is defined to be a "permanent abode." Johnson v. People, 94 Ill. 505. In Georgia it is held that a man's residence is where his family permanently resides, though he may be boarding and doing business in another place. Cunningham v. Maund, 2 Ga. 171. In the absence of statutory provisions the residence of a married man for voting purposes does not necessarily depend upon that of his family. Lask v. United States, 1 Pinney (Wis.), 77. Residence is to have a permanent abode for the time being as distinguished from "mere locality of existence." Long v. Ryan, 30 Gratt. (Va.) 718. Going into a place for a particular purpose with an intention to return to the place from which one came when the purpose is ac complished will not give the person a residence or a right to vote. Vanderpoel v. O'Hanlon, 53 Iowa; People v. Peralta, 4 Cal. 175. A person may gain a residence for the purpose of voting though he is in the military or naval service of the United States, and provided it is shown that such person intends to make his residence at the place where he is stationed he may become a voter there. Ames v. Duryea, 6 Lans. (N. Y.) 155. A pauper residing in an almshouse neither gains a residence therein nor loses his old residence by virtue of the mere fact of his resi dence at the almshouse; but the weight of authority seems to be that the mere fact of dwelling at the almshouse does not prevent a pauper having no family elsewhere from gaining a residence in the district where the almshouse is situated. Dale v. Irwin, 78 Ill. 170; Clark v. Robinson, 88 Ill. 498; Sturgeon v. Korte, 34 Ohio St. 525. But in New York it was held