In re Barry

• Decision Date: 02 October 1900
• Parties: In re BARRY et al.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 18

58 N.E. 12

In re BARRY et al.

Court of Appeals of New York.

Oct. 2, 1900.

Appeal from supreme court, appellate division, Second department.

Application by Francis A. Barry and others to place their names on the registry roll of electors. From a decision of the appellate division affirming an order of the special term denying such application (61 N. Y. Supp. 124), they appealed. Affirmed.

John F. Brennan, for appellants.

John C. Davies, Atty. Gen., for respondents.

BARTLETT, J.

The petition in this case is made by some 59 ecclesiastical students at St. Joseph's Seminary, an institution established and maintained for the purpose of educating young men for the Roman Catholic priesthood, which is located in the Seventh ward of the city of Yonkers. In October, 1899, the petitioners sought to register themselves as legal voters in the Seventh ward, but registration was denied by the board of inspectors. The facts in this case are undisputed, and as follows: No person is allowed to enter or remain in this seminary as a student unless he intends in good faith to become a Roman Catholic priest, and renounces all other residences or homes save that of the seminary itself, and upon his admission to the priesthood he continues in the seminary until assigned elsewhere by his ecclesiastical superiors. It is insisted by the appellants that this case is differentiated from the cases heretofore decided by this court in regard to students temporarily residing in colleges and seminaries of learning for a definite period of time, pursuing a certain course of study. We agree with the conclusion reached by the courts below, that there is nothing in this case that takes it out of the general rule laid down by this court in a number of decisions. It does not change the situation that a student enters a seminary, to be educated for a certain calling, and to remain there after graduation until assigned to duty, instead of a fixed course of four years, as is usual in institutions of learning. The constitution of this state provides in part (article 2, § 3) as follows: ‘For the purpose of voting, no person shall be deemed to have gained or lost a residence * * * while a student of any seminary of learning. * * *’ The plain reading of the constitution is that a sojourn in a seminary of learning has no effect whatever, one way or the other, on the question of legal residence for the purpose of voting. In Re Goodman, 146 N. Y. 284, 40 N. E. 769, it was held that where a person residing in one election district of a city removes to, takes, and occupies a room in a seminary of learning in another district as a student, and not permanently as a residence, he neither loses his former residence, nor gains a new residence in the seminary district by the removal, and is entitled to vote in the former district, not the latter. Judge Finch, in writing the opinion of the court, among other things said: ‘This construction obeys literally the...