| N.Y. Sup. Ct. | Oct 15, 1895
The petitioner asks for an order directed tO' the board of registry of the second election district, of the town of Oolonie, Albany z county, directing such board of registry to place his name upon the registry list of said elec- . tion district..
.The board of registry has refused to register the petitioner,, and bases its refusal upon section 3, article 2 of the' Constitution of the state, which reads as follows: “ For the purpose of voting, no person shall be deemed to have gained or lost a residen ce by reason of his presence or absence while employed in the service of the United States, ñor while' engaged in the navigation of the waters of this state, or of the United States, or of the high seasnor while a student of any seminary of learning ; nor while kept at any almshouse or other asylum, or institution wholly or partly supported at public expense or by oha/rity, nor while confined in any public prison.”
With great hesitation' I have arrived at the conclusion that the order prayed for should be granted.
The petitioner is, and has been since April, 1893, an inmate of what is known as the “ Home for Aged Men,” an institution situate in said second election district of the town of Oolonie. • . "
The object of the existence of this institution is stated to be “ The relief, care, culture and support of needy or distressed old men.” And.it is provided by the by-laws of such institution that “ Respectable aged, indigent men, born in the United States of America, may, by yote of the trustees, be placed on the list of beneficiaries, and may be received into the home and be supported therein by relatives or friends, in whole or in part, or at the sole expense' of the society, as the circum
The society is supported entirely by private charity, except the entrance fee of $250 .above referred to, receiving no assistance from the state or local authorities, except relief from taxation upon its property.
The petitioner’s entrance fee to the institution was made up from private subscriptions by former business acquaintances.
The institution, as I have described it, is one that plainly comes within the provisions of section 3, article 2, of the Constitution, and as to those inmates, at least those who have become such since the 1st of January, 1895 (the time when the present Constitution took effect), it must be held that their being domiciled there does not give them a residence within the election district which entitles them to register or vote there; But it is contended upon the behalf of the petitioner that he had acquired a residence in such election district prior to January 1, 1895, and that at that time the Constitution made no reference to inmates of institutions like the one in question, section 3, article 2, of the Constitution then reading as follows : “ 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, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, at public expense; nor while corn-fined in any public prison.”
There is nothing in the language of section 3, article 2, of the Constitution, as i’t now exists,, which, indicates that it was intended to be retroactive; it must, therefore, be held to be prospective in its operation and effect, and if a residence had been already acquired in any institution of the-kind described in the section, it will not be held to have been taken away by this provision of the Constitution.-
It has been said of this section of, the Constitution, as it was before the change made in .it by the present .Constitution, that “ The provision (art. 2, section- 3) disqualifies no one; ..confers no right upon any one. It simply eliminates from those circumstances the fact- of presence in the institution named or included within its terms. It settles the law as to the eff ect of such presence.” Silvey v. Lindsay, 107 N.Y. 55" court="NY" date_filed="1887-10-04" href="https://app.midpage.ai/document/silvey-v--lindsay-3620432?utm_source=webapp" opinion_id="3620432">107 N. Y. 55-61.
That is to say, the presence of one -in such an institution in and of itself neither gives him a right- to vote in the election district where such institution is situated, nor deprives him of his right to vote in the election district where he resided and voted before becoming an inmate of such institution.
So, when the new Constitution came into force January 1, 1895, this provision (§ 3, art. 2) disqualified no one, conferred no rights upon any one.
Under the Constitution as it existed prior to January. 1, ■1895, it seems to me there was no prohibition to a person acqfiiring a new residence by becoming an inmate o.f a-n institution of the kind in question here; ,it was not one of the institutions mentioned in the. Constitution as it then existed. "Whether a person, by becoming an inmate of it- changed his residence was -largely a question of fact and. intention, as in all other cases of change of residence.
The nature of the institution itself, as indicated by its name, and the statement of its object, show an intention to provide what should be the last earthly home for the objects of its charity who should become inmates.
Let an order be entered as prayed for in the petition.
Application granted.'