Matter of Goodman
It is оbjected 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 оfficial 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
*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 lаst 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
(
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 whоlly 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 prescribеd period of study, *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 disfrаnchise a single citizen. It merely recognizes and applies the admitted truth, acted uj)on 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 actuаlly 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 nоthing 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 befоre 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 deeny somewhat exceptional, but I am unable to say that where the new abode is occasioned and explainable by, and referable to the presence as а 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 *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 strikе 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 becomе so qualified before the election appears upon the lists. This provision applies, not to a case of doubt, not to one resting in some unсertainty or dependent upon inferences of a debatable character, but to a case in which the facts show affirmatively that the intending votеr 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 tbe hidden mental intention of Bain ton to take up a residence at. the seminary independently of his presence there as a student. He is very careful not to swear to аny such intention. Hp obviously confuses residence with place of abode, and then swears that he has no other than the seminary and intends to make that his rеsidence. 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 thе temporary sojourn of a student. The legal and natural inference from his act is not even rebutted by an asserted independent and extrinsic intention. Indeеd, 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 tо 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 ocсasioned by it. The voter who relies wholly upon that undisclosed mental intention to outweigh obvious inferences from. *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.