Opinion
Argued October 30, 1947
Decided October 30, 1947
Appeal from the Supreme Court, Appellate Division, Second Department, SCHMIDT, J.
Joseph L. Roesch for Jhan Robbins and another, petitioners, appellants and respondents.
Arthur Garfield Hays, Elias Messing and Milton M. Carrow for Esther M. Bess and others, petitioners, appellants and respondents. David H. Moses, Morton Lexow and William H. Jenkins, Jr., for Inspectors of Elections, respondents and appellants.
Section 4 of article II of the State Constitution and section 151 of the Election Law say that, for purposes of registering and voting, no person shall be deemed to have gained or lost a residence "by reason of his presence or absence * * * while a student of any seminary of learning". Those enactments have been construed by the courts, and held to mean at least this: that a student who moves into residence on the campus of an educational institution does not, without more, accomplish a change of voting residence ( Matter of Garvey, 147 N.Y. 117; Matter of Barry, 164 N.Y. 18; Matter of Blankford, 241 N.Y. 180; Matter of Watermeyer v. Mitchell, 275 N.Y. 73). But the quoted constitutional and statutory enactment "disqualifies no one; confers no rights upon any one." ( Silvey v. Lindsay, 107 N.Y. 55, 61.) It means only that such presence at a seat of learning is not "a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere." (Same citation.) No case (except the present ones) goes so far as to hold that a married student, moving with his wife from their former residence to one nearer his studies, automatically loses his right to vote by force of the constitutional-statutory edict.
The petitioners here, whose votes have been successfully challenged in the election districts in Rockland County wherein they now reside, occupy apartments at a housing development called "Shanks Village". Those buildings were formerly part of the wartime Camp Shanks, but after the war they came under the control of the Federal Public Housing Administrator who leased them to Columbia University or, at least, put them under the control of that university. The agreement between Columbia and the administration authorizes the former to rent the apartments to students only, and only to such students as are war veterans. All the petitioners are such students or their wives or relatives, all occupy these apartments as separate family domiciles, and each male petitioner is actually the head of a family unit, consisting in most cases of himself and his wife. (Anomalously enough, the wives have been permitted to vote by these same adjudications.) Many of these student-veterans are gainfully employed, part-time, elsewhere than at the schools they attend. Shanks Village is many miles from any of those educational institutions and the residential facilities there are a part of the Columbia campus only to the limited extent above described.
Our Constitution and our statutes, for sufficient reasons, have decreed that those who attend colleges and seminaries away from their family homes and live in college residential halls during the college year in the fashion conventional before the war, do not, thereby and without more, become qualified to vote in the communities in whose life and doings these students had so limited a part and so limited an interest. The mischief against which the law was aimed was "the participation of an unconcerned body of men in the control through the ballot-box of municipal affairs in whose further conduct they have no interest, and from the mismanagement of which by the officers their ballots might elect, they sustain no injury." ( Silvey v. Lindsay, supra, p. 60.) However, that old concept of semicloistered college life has little to do with the way these petitioners are getting their education. They are married men who have left their parental firesides and gone out on their own, with their wives and children. Their living arrangements at Shanks Village bear small resemblance to an old-fashioned college community, but are more like the kind of new-fashioned company-owned housing projects, which great industries build near their factories to attract and serve their employees and their employees' families. These students are family men, not college boys away from their parental homes. True, their tenure of occupancy at Shanks Village can continue only while they are students, but, since they have no other homes, their tenure is "temporary" or "indefinite" only in the same sense as the tenure of the occupant of a city apartment house.
There is no substantial dispute of fact here. These petitioners have shown their eligibility to vote from the only residences they have. As to the right to vote of the petitioners who are wives or parents of veteran-students, we cannot see that there is any doubt whatever.
The orders should be modified so as to grant the petitions of the student petitioners, and as so modified affirmed, without costs.
THACHER and DYE, JJ., concur with DESMOND, J.; LOUGHRAN, Ch. J., CONWAY and FULD, JJ., concur in result; LEWIS, J., taking no part.
Ordered accordingly.