Hershkoff v. Bd. of Registrars of Voters of WorcesterHershkoff v. Bd. of Registrars of Voters of Worcester
During October, 1971, and February, 1972, three students at colleges in Worcester sought to register to vote in Worcester. After hearings in March, 1972, the board of registrars of voters (board) denied the applications on the grounds that the domicils of two of the students were New York and that the domicil of the third was Pennsylvania. On petitions for writs of certiorari, a judge of the Superior Court ordered that the decisions be quashed and that the board be ordered to cause the students to be registered as voters in Worcester. We direct modification of the orders to provide for registration under the procedures currently in effect, and affirm the orders as so modified.
The board attached to its answers an “attested copy of transcript of record” of its meetings held on March 3 and 13,1972. The so called “transcript” consists primarily of a purported summary of the sworn testimony of each student. The summary of each student’s testimony is followed by a statement of a motion and a unanimous decision by the board. Thus Hershkoffs testimony is followed by a statement of a motion that “on the evidence presented by Mr. Hershkoff,” he was domiciled in New York and “therefore should be refused registration in Worcester,” and a statement that the board “unanimously agreed that his domicile was New York and that he be notified in writing, of the Board’s decision.”
The judge allowed motions to extend the board’s returns by admitting in evidence, over the board’s objections, stenographic transcripts of the testimony of the three students before the board. Over the students’ objections, he excluded other extrinsic evidence. Since the students assert that the board’s “transcript” is not an accurate reflection of what actually occurred, we summarize the stenographic transcript rather than the board’s “transcript.”
Steinberg.
Steinberg at one time lived in Pennsylvania with his parents. Beginning in September, 1969, he attended Clark University in Worcester. In December, 1970, he registered to vote in Norristown, Pennsylvania; he never voted there but did not request that his name be removed from the voting list. He registered for the draft through the Worcester office. At the time of the board hearing in March, 1972, he was twenty years old, was in his third college year,, and was living in an apartment in Worcester. He had a Pennsylvania driver’s license, but he had an automobile registered in Massachusetts. He had a bank account in Worcester and he, not his father, paid for his automobile insurance. His parents supplied part of the funds for his
Brontoli. Brontoli was bom in New York city, and had lived with his family in various parts of the world. His parents were living overseas and had no permanent residence in the United States; they voted only in national elections, through arrangements made by his father’s employer, a corporation with headquarters in New York city. He came to Worcester in September, 1969, to attend Worcester Polytechnic Institute. During vacations he visited his grandparents in Hunter, New York. At the time of the board hearing in March, 1972, he was twenty years old and lived in an apartment in Worcester. He paid for rent and food with money received from R. O. T. C. He owned a car bought in New York in the summer and insured and registered there; he also had a New York driver’s license. After he was refused voter registration in Worcester, he tried to register in Hunter, New York, but could not because he had never lived there and did not intend to live there. His intention was to stay in Worcester until graduation in June, 1973; he would then go where the Army sent him for three or four years of military service. He considered Worcester his permanent residence, but did not have a present intention to remain there indefinitely.
After a hearing on September 14,1972, the judge entered orders for judgment on September 29, 1972, that the board’s decisions be quashed and that the board be ordered to cause the three students to be registered as voters. The board requested reports of material facts, and appealed. G. L. c. 213, § ID, as amended by St. 1957, c. 155 (repealed effective July 1, 1974, by St. 1973, c. 1114, §60). On May 29,1973, the judge filed reports of material facts based on “the respondents’ return and all of the evidence sub
1.
Review procedure.
Contrary to the board’s contention, there was no error in extending the board’s return to include the stenographic transcript. G. L. c. 249, § 4, as amended through St. 1963, c. 661, § 1. G. L. c. 213, § 1A, as amended through St. 1962, c. 722, § 3. Rule 119 of the Superior Court (1954). See
Southwick Birds & Animals, Inc.
v.
County Commrs. of Worcester County,
Under G. L. c. 213, § ID, as amended by St. 1957, c. 155, all questions of fact, law, and discretion which were open before the trial judge are open to us on appeal.
Ouellette
v.
Building Inspector of Quincy,
The students apparently sought to introduce evidence in the Superior Court, consisting of testimony of a member of
2.
Domicil for voting purposes.
The Twenty-sixth Amendment to the Constitution of the United States, promulgated in July, 1971, provides, “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Shortly after the ratification of that amendment, on July 21, 1971, the Attorney General of the Commonwealth rendered an opinion for the guidance of the local officials responsible for voter registration. Rep. A. G., Pub. Doc. No. 12 (1972) at 40. At that time the Constitution of the Commonwealth limited the right to vote to a citizen of “nineteen” or more years “who shall have resided within the town or district in which he may claim a right to vote, six calendar months next preceding any election....” Art. 3 of the Amendments, as amended by arts. 93 and 94, approved November 3,1970. Further changes by arts. 95 and 100, approved November 7,1972, included substitution of “eighteen” for “nineteen,” but do not affect the present cases. Article 92 of the Amendments, approved November 3, 1970, provided for determining representative, senatorial, and councillor districts in terms of “inhabitants,” and our Constitution defines “inhabitant” by providing that “every person shall
Provision was made by statute for voter registration by a citizen “nineteen” years of age or older “who has resided in the city or town where he claims the right to vote six months last preceding a state, city or town election ....” G. L. c. 51, § 1, as amended through St. 1971, c. 382, § 1. Subsequent amendments changed “nineteen” to “eighteen” and eliminated the six-month residency requirement, so that the provision applies to a citizen “eighteen” years of age or older “who is a resident in the city or town where he claims the right to vote at the time he registers ....” St. 1972, c. 28, § 1; c. 587, § 1. Durational residency was not considered by the board in reaching its decisions. “All persons who are citizens of the United States and who are domiciled in this commonwealth are citizens thereof.” G. L. (Ter. Ed.) c. 1, §1.
The words “resided” and “inhabitant” in constitutional and statutory provisions relating to voting have long been construed to require that the voter have his “domicil” in the appropriate city or town.
Putnam
v.
Johnson,
Every person must have a domicil, and he can have only one domicil at a time, at least for the same purpose. See
Abington
v.
North Bridgewater,
These cases present to us three problems with respect to the rules governing the domicil of a college student: (1) Does an unemancipated minor have capacity to acquire a domicil of choice for voting purposes? (2) How do family support and dormitory residence bear on the requisite intent? (3) What is the requisite intent with respect to the duration of the residence? As to the first, we have little difficulty. It seems to us, as it seemed to the Attorney General, that it is a corollary of eighteen-year old voting that the young voter is to be independent for voting purposes and therefore must have capacity to choose his domicil for voting purposes, regardless of his emancipation for other purposes. See Rep. A. G., Pub. Doc. No. 12 (1972) at 41-42. When women were enfranchised, attempts to make married women vote where their husbands voted were promptly overruled by statute. See St. 1922, c. 305; 1922 House Doc. No. 1225;
Green
v.
Commissioner of Corps. & Taxn.
By parity of reasoning, we do not believe that support by parents or dormitory residence can be given effect to limit the young voter’s freedom of choice of domicil, and to that extent we depart from the views expressed in
Opinion of the Justices,
As to the intended duration of residence, we have often said that domicil is the place of one’s actual residence “with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.” See
Opinion of the Justices,
3.
Proof of domicil.
The statutes in force in 1972 required that an unregistered voter, in order to be registered, “apply in person to the registrars and prove that he is qualified.” G. L. c. 51, § 42, as amended through St. 1972, c. 28, § 2. The registrars were authorized to receive applications for registration and to “examine on oath such applicants and witnesses.” G. L. c. 51, § 33, as appearing in St. 1962, c. 437, § 12. They were required to record the name of the voter, his age or date of birth, place of birth, residence on the preceding January 1 or at the later time when he became an inhabitant of the city or town, the date of registration and his residence on that date, his occupation and the place thereof, and any other particulars necessary to identify him fully. G. L. c. 51, § 36, as appearing in St. 1971, c. 932. We think they were entitled to inquire into these matters, and perhaps others. It was entirely proper in the present cases, for example, to inquire about parents’ residences, drivers’ licenses, automobile registrations, prior voting registrations, past and current addresses, and future plans. Cf.
Whatley
v.
Clark,
On the-other hand, it was no part of the duty of registrars to hold down the number of registered voters in Worcester, to create hurdles to test new voters, or, in the absence of any
The decisions of the board were rendered on the evidence presented by the students. On that evidence, each student actually resided in Worcester with intention to make Worcester his home for the time at least. In the absence of any issue of credibility, each was therefore domiciled in Worcester and was not disqualified from voting by reason of domicil elsewhere. See
Cohen
v.
Board of Registration in Pharmacy,
4.
Constitutional questions.
We do not decide any constitutional question. Cf.
Reed
v.
Election Commrs. of Cambridge,
5. Disposition. One of the students sought to register to vote in Worcester more than three years ago, the other two almost three years ago. Their right to vote was upheld in the Superior Court more than two years ago, but proceedings under those decisions were automatically stayed by the entries of the board’s appeals. G. L. c. 213, . § ID, as amended by St. 1957, c. 155. G. L. c. 214, § 19. The record before us does not show that interlocutory relief has been granted under G. L. c. 214, § 22. Moreover, the procedure for voter registration has been drastically revised by St. 1973, c. 1137, effective June 1,1974. The students here may well have felt precluded by the pendency of these appeals from taking advantage of the new procedure, which is apparently designed to facilitate registration of students. On the other hand, it is entirely possible that the residences of one or more of the students have changed in the last two years.
Registration to vote is not a matter of discretion. In the circumstances before him, we think the judge could properly order the board to cause the students to be registered in Worcester. See
Cohen
v.
Board of Registration in Pharmacy,
So ordered.