[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 286 It is objected to this appeal that the question involved has become purely abstract, since the election has passed for which the intending voter registered, and restoring his name to the registry from which it was removed would be an idle ceremony without the least practical result. But the incident is of a recurring character, and likely to occasion a repeated denial of the asserted right, and the point in dispute is one of public interest, and requiring official action which needs some degree of direction in view of expressed differences of opinion.
It is conceded by the respondent that the intending voter was a resident of the state and of the county, and entitled to *Page 287 vote at the election. What is denied is that he acquired any right to vote in the election district in which the seminary which he entered and in which he took rooms was situated. It is admitted that he could have lawfully registered from 84th street, which was his last residence prior to his removal to the seminary, but in a different election district, and would have been a qualified voter there: the precise contention being that he did not lose his residence there by removing to the seminary, nor gain a new residence in the seminary district by his presence in it as a student. I think that is a correct construction. It does not disfranchise the voter, but determines the place where he may lawfully vote. In the case of Silvey v. Lindsay (107 N.Y. 55) we held that the removal to the Soldiers' Home at Bath by one whose legal residence was in New York did not on the one hand give him a new voting residence at Bath, nor on the other deprive him of his old voting residence in New York. We said he could go back there and vote and was to be regarded as temporarily absent therefrom. Here the presence of Bainton in the seminary was as a student, and for the purposes of a student only, and by that removal he neither gained a new residence in the seminary district nor lost his prior one in the 84th street district. He could have registered in the latter and voted at its poll, and if challenged could have taken the oath that he was a resident of that district, as he legally remained, although having no actual abode in it. He could lose such residence, of course, but did not do so by the mere fact of taking rooms in the seminary as a student.
We do not mean to say that a voter may not change his legal residence into a new district in spite of the fact that he becomes a student in an institution of learning therein, but the facts to establish such a change must be wholly independent and outside of his presence in the new district as a student, and should be very clear and convincing to overcome the natural presumption. In the present case there were no such facts. Presumably rooms in the seminary rented to students are to be occupied only during the prescribed period of study, *Page 288 and not permanently as a residence, and there was nothing before the court to show any change of residence beyond the temporary presence at the institution for such period of study. This construction obeys literally the constitutional mandate, and does not necessarily disfranchise a single citizen. It merely recognizes and applies the admitted truth, acted upon at every election, that the voting residence may be in one place and the actual abode in another. Usually, perhaps always, the voting residence remains unchanged until a new residence is actually acquired, but there can be no such acquisition merely by an abode as a student in an institution of learning. Something else, beyond that fact and wholly independent of it, must occur to effect the change. The intention to change is not alone sufficient. It must exist, but must concur with and be manifested by resultant acts which are independent of the presence as a student in the new locality. It is only in quite exceptional cases that such a result could be reached, and nothing in the one before us takes the situation out of the constitutional rule.
The dissenting opinion in the General Term, in another case, which has been put before us by the appellant, is in entire accord with this view except at a single point. It argues that one who is qualified as a voter by residence in the state and in the county may change his election district to one where he attends an institution of learning. I agree to that possibility, which I deem somewhat exceptional, but I an unable to say that where the new abode is occasioned and explainable by and referable to the presence as a student, without any independent facts showing a change of residence, not only intended but accomplished wholly outside of the student character, the new residence in the new district is acquired, because it is a change of residence merely from one district to another. In such a case I think the old residence remains, and is not lost until, after the temporary sojourn as a student, a new residence is acquired. The exact difference of opinion seems to be only this, that the dissenting judge thought there were such independent facts, while in the present case, at least, we *Page 289 are unable to see any. The effort to establish any such change will usually prove to be difficult, and may easily become perilous.
A further point is made over the right of a judge at Chambers to strike names from the registry. Such right is given by the amendment of 1894 (Chap. 275, § 37), where the name of a person not qualified in the election district or who cannot become so qualified before the election appears upon the lists. This provision applies, not to a case of doubt, not to one resting in some uncertainty or dependent upon inferences of a debatable character, but to a case in which the facts show affirmatively that the intending voter is not and cannot become qualified. If there is dispute about the facts or ground for differing inferences, the judge should not intervene, but leave the voter to swear in his vote at his peril, taking upon himself the risk of his persistence. Where, however, as in this case, there is no dispute about the facts, and they admit of but one inference, the judge may order a name to be removed. Here there was no possible element of uncertainty unless it lay in the hidden mental intention of Bainton to take up a residence at the seminary independently of his presence there as a student. He is very careful not to swear to any such intention. He obviously confuses residence with place of abode, and then swears that he has no other than the seminary and intends to make that his residence. What he says is consistent with the tenor of his concurrent acts, which indicate nothing more than a purpose to abide in the seminary rooms for the temporary sojourn of a student. The legal and natural inference from his act is not even rebutted by an asserted independent and extrinsic intention. Indeed, if some such mental purpose had been averred it would hardly have raised a sufficient doubt unless fortified by consistent acts, for the secret thought, known only to the individual, can rarely come under legal investigation or be subjected to any test unless by reference to the acts which manifest it and are occasioned by it. The voter who relies wholly upon that undisclosed mental intention to outweigh obvious inferences from *Page 290 his act puts himself in an unsafe position. I understand the appellant to concede the validity of the act of 1894 as thus construed, and there is no just reason for a denial of its validity and operative force.
The order should be affirmed, with costs.
All concur.
Order affirmed.