Silvey v. Lindsey — 5 N.Y. St. Rep. 157

Majority

p. 157

James Silvey v. William W. Lindsey et al.

(Supreme Court, General Term, Fifth Department,

Filed September, 1886.)

Headnote

Election law — Residence — Eight to vote — Inmates of asylums, etc.

Where a party being a resident of the city of New York, and a legally qualified elector, removed from there and became an inmate of the New York State Soldiers and Sailors’ Home, intending to change his residence from New York city, and to become a resident of the election district within which sucli home is situated, he becomes a resident of that place, and an elector in it after a residence of the length required by the Constitution.

2. Same — What required by the constitution — New Yobk constitution, akt., 2, § 1.

The State Constitution provides, article 2, § 1, “Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days and an inhabitant of this State one year, next preceding an election, and for the last four months a resident of the county, and for the last thirty days a residence of the election district in which he may offer his vote, shall be entitled to vote at such election in the elect’on district of which he shall at the time be a resident and not elsewhere, for all officers that now are or hereafter may be elective by the people.

3. Same — New York constitution, art., 1, § 3.

The State Constitution provides, art., 1, § 3, “ Eor the purpose of voting, no person shall be deemed to have gained or lost a residence,”.“ nor while kept at any almshouse, or other asylum, at public expense.” Held, that assuming the institution in question to be an asylum of the character referred to in this paragraph, the clause did not prohibit an inmate from acquiring a residence in the election district in which the institution was situated.

4. Residence — What necessary to constitute.

A place of residence, in the common law acceptation of the term, means a fixed and permanent abode and dwelling-place for the time being as distinguished from a mere temporary place of sojourn.

A ease submitted upon an agreed state of facts under section 1279 of the Code.

In 1886, the plaintiff was an inmate of the “ New York State

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Soldiers and Sailors Home,” located in the town of Bath, in the county of Steuben, organized and maintained under the provisions of chap. '48 of the laws of 1878. The defendants were justices of the peace of said town and presided at the annual town meeting held for that year. The plaintiff, claiming to be a resident of the town, offered his vote to the town officers which was rejected by the defendants upon the sole ground that he was not a resident of the town. The case states that the defendants wilfully and maliciously refused to receive the plaintiff’s vote, with full knowledge of all the facts set forth in the case bearing upon the plaintiff’s right to vote. It was stipulated, that if it should be held by the court that the plaintiff was a qualified voter at that election then the plaintiff’s damages were fifty dollars, for which sum he was entitled to judgment.

Miller $ Nichols, for the plaintiff; J. F. Parkhurst, for the defendants.

The legal question submitted for our determination is stated in the case as follows: Did James Silvey gain a residence in the town of Bath, so as to entitle him to vote at a town meeting, by reason of his presence as an inmate of said institution.

The admitted facts upon which the plaintiff based his right to vote as a qualified elector of the town of Bath, are that he was a soldier in the service of the United States during the late rebellion and was entitled to admission as an inmate into the institution known as the “ Nerv York State Soldiers and Sailors Home,” located in the town of Bath, as provided in chap. 48, of the Laws of 1878, and the rules and regulations adopted by the board of trustees having the control of the said institution. At the time he became an inmate of the home, in the year 1880, he was a resident of the city of New York where he was a qualified elector. Since he became an inmate of the asylum he has resided there continuously, and during all that time voted at every State election and town meeting, held in the town of Bath up to the time his vote was rejected by the defendants. It does not appear from the case that the plaintiff was ever married, or that he ’was at any time a householder, or engaged or interested ih any business. He was not a pensioner under the laws of the United States and was supported by the home wholly at public expense. As to Ills intention to change his place of residence, from the city of New York to the town of Bath, the fact is stated in the case in these words, “ in becoming an inmate of said institution, said Silvey, intended to change his residence from the city of New York to the Fifth election district of the town of Bath, and to make his residence in said institution so long as he should be permitted to re

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main there as snob inmate.” At the polls and upon oath he stated to the defendants as follows: “ I reside in the town of Bath for the reason that I was admitted an inmate of the New York Soldiers and Sailors’ Home, in this town, by the authorities thereof, in the year 1880, and have remained such inmate from that time to the present, with the intention at all times of making my residence in said institution, so long as I shall be permitted, to remain such inmate. At the time of my admission to said institution I was an honorably discharged soldier of the United States, and a resident and a voter of the city of New York: I therefore answer that I am a resident of the town of Bath. In becoming an inmate of said institution, I intended to change my residence from the city of New York to the Fifth election district of the town of Bath.” It was stipulated that every statement of fact made by the plaintiff as contained in his evidence was true.

It thus appears that the plaintiff on entering the institution abandoned his residence in the city of New York and intended to make the town of Bath his future residence permanently, or for an indefinite period of time. He thus became a resident of the latter place and a qualified elector therein, unless by reason of some positive law, constitutional or statutory, he was disqualified from becoming a resident of that town by reason of being an inmate in that institution maintained at public expense. He voluntarily, for the purpose of securing to himself more of the comforts of- life, accepted the benefactions gratuitously offered by the State to discharged soldiers in need of a home in consequence of physical disability or other cause. Thereafter that institution was his house, his home, his fireside, his bed, his board. He had no family with which to reside or support, and had no business relations elsewhere. Nothing remained with which he was connected in the least degree in the city of New York indicating that he remained a resident there.

The qualification of voters at all general elections held in the State, are defined by the constitution as follows: “ Every male citizen óf the age of twenty-one years, who shall have been a citizen for ten days and an inhabitant of this State one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such elections in the election district of winch he shall at the time be a resident, and not elsewhere.” — Article 2, section 1. To become a legal voter at the town meeting the same qualifications are required and none other. — 1 R. S., page 108, Sec. 1, 7th Ed. The only restraint or regulation placed upon a citizen in changing his place of residence from one place to another within the State is contained in Art. 2, Sec. 8, of the constitution which declares, “ For the purpose of voting, no

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“ person shall be deemed to have gained or lost a residence, by reason of bis 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 ab any almshouse, or other asylum at public expense; nor while confined in any public prison.”

The defendants contend that while the plaintiff was an inmate of the Soldiers and Sailors Home and supported at public expense he was prohibited from acquiring and could not gain a residence, in the town of Bath. It may be conceded in disposing of this case that this institution is an asylum of the class and character of those referred to in this paragraph of the Constitution. But we do not hold that it is, and many reasons may be given why it should not be so considered. A student in college, a soldier in the United States service and a voluntary inmate of a charitable institution, the recipient of a public gratuity, may change his place of residence like any other citizen, by doing those things which the law requires of all persons who intend to change their residence from one place to another within the State. The clause of the Consitution quoted contains no prohibitory provisions. It simply declares that, for the purpose of voting, no person shall be deemed to have gained a residence by reason of his presence in a particular place while a student of any seminary of learning or in the other cases mentioned therein. But a person who is a student in a college - may change his residence from place to place while in attendance upon the college, just the same as any other citizen. These views have been maintained.and expressed by the law department of the State relative to the status of the inmates of this institution and their qualifications as voters in the town of Bath.

The defendants also contend that, as the plaintiff only intended to reside in the town of Bath so long as he should remain an inmate in the soldier’s home, he could not gain a residence by the rules of the common law. As he intended to abandon his former place of residence he could acquire one in the town of Bath if his purpose was to remain there for a period of time although indefinite as to its duration. He was a citizen of the State, under no disqualifications prohibiting Mm from becoming a resident of any place which he might determine upon. It was not necessary that he should have had the fixed purpose of residing permanently in the town of Bath. A citizen of the State must, of necessity, have at all times a place of residence therein. It may be for a long or a short period of time in any particular place. For the purpose of securing the right to vote in any particular town his residence therein must be for the length of time required by the election law. But he becomes a resident

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of tbe place tbe instant he arrives within tbe limits of a town with the intention of making it bis future home and residence permanently or for an indefinite length of time. A place of residence, in tbe common law acceptation of tbe term, means a fixed and permanent abode and dwelling-place for the time being as contradistinguished from a mere temporary local residence. The fact is admitted that tbe plaintiff bad determined to remain in the town of Bath for an indefinite time.' By tbe American authorities a residence may be acquired in a particular place where it is tbe intention of tbe person to remain therein for an indefinite period of time. It is not necessary that be should have tbe purpose to remain there permanently, that is to say, never to remove therefrom. There must be both tbe fact of the abode and tbe intention of remaining there indefinitely, to constitute a domicile or a residence. Hegeman v. Fox, 31 Barb., 475 ; In the Matter of Wrigley, 8 Wend., 141 ; Chaine v. Willson, 1 Bos, 673; Dupuy v. Wurtz, 53 N. Y., 556 .

In Massachusetts the courts have repeatedly held, that where there is an intention on the part of a citizen of that State, to abandon his then present place of residence, and then remove to another town with an intention to remain there for an indefinite length of time, he becomes a resident of the latter place. Commonwealth v. Cushing, 99 Mass., 592 ; Whitney v. Sherborn 12 Allen, 111 ; Mead v. Roxborough, 11 Cush., 362 ; Carnoe v. Freetown, 9 Cray, 357; Harvard College, v. Gore, 5 Pick., 379 .

Webster defines a resident to be one who resides or dwells in a place for some time; and a residence as being the place where one resides ; an abode ; a dwelling; a habitation.

It is clear to my mind that the plaintiff was, within the sense or meaning of the election laws, a resident of the town of Bath. He had no residence elsewhere. It is not to be supposed that the legislature intended to deprive the inmate of that institution of any of the privileges of citizenship. A person may be an inmate of that institution and maintain his residence elsewhere, and I suppose there are many such instances. A person may become an inmate of this institution with an expectation on his part to remain so long as his wants and means require, and have a family and a residence elsewhere.

The plaintiff is entitled to a judgment for fifty dollars damages with costs as agreed upon in the case submitted All concur.