a compensation or reward for the giving or withholding a vote at such election, and has not made any promise to influence the giving or withholding of any such vote, nor made or become directly or indirectly interested in any bet or wager depending upon the result of such election. The Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

Const. 1821, Art. II, § 2; amended, Const. 1846, Art. II, § 2; amended, 1874; amended, Const. 1894, Art. II, § 2.

The word "convicted" must be construed to imply a judgment based on a verdict of guilty. "The duty to disfranchise a person convicted of bribery or any infamous crime imposed by the constitution upon the legislature authorizes such disfranchisement only upon a conviction in the more comprehensive sense of that term, that is to say, upon a judgment based on a verdict of guilty, and that a person is not convicted within the meaning of the constitution or the statutes enacted in pursuance thereof against whom sentence has been suspended after verdict." Wherefore a person against whom sentence has been suspended after a verdict of guilty is not liable to indictment for voting at an election as not qualified therefor in violation of the provisions of the statute (Penal Code, § 41-e as amended by ch. 371, Laws of 1901). People v. Fabian, (1908) 192 N. Y. 443, 85 N. E. 672, 15 Ann. Cas. 100, 127 A. S. R. 917, 18 L. R. A. (N. S.) 684, reversing 126 App. Div. 89, 111 N. Y. S. 140.

Promise to remit salary as bribe.— Apparently, the promise of a candidate to perform the duties of an officer at a less salary than that prescribed by law is a bribe within the meaning of this section. People v. Thornton, (1881) 25 Hun 456.

Improper challenge.- Inspectors of election cannot challenge and question a voter on grounds not affecting the qualifications prescribed by this section and by section 1 of this article. Accordingly, they may become liable in an action for damages to a person to whom they deny the privilege of voting on account of his refusal to answer a question not sanctioned by these provisions. Goetcheus v. Mathewson, (1875) 61 N. Y. 420, reversing 5 Lans. 214. Offer of bribe as disqualification for office. This section withdraws the right to vote at an election from any person who shall either accept or offer a bribe for the giving or withholding of a vote at that election. It does not purport, however, to render one guilty of those offenses ineligible to hold office; and in view of the well-settled canon of construction that when the Constitution defines an offense and imposes a penalty therefor, the penalty specified is exclusive, this section should not be construed to debar from office a candidate offering a bribe. Accordingly, a candidate for the office of county judge is not disqualified from serving in that capacity because he offered before his election to remit to the county a portion of his salary. People v. Thornton, (1881) 25 Hun 456.

§ 3. Voting residence.

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, or institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.

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Const. 1846, Art. II, § 3; amended, Const. 1894, Art. II, § 3. General effect of section. This section 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 effect of such presence, and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded." Silvey v. Lindsay, (1887) 107 N. Y. 55, 13 N. E. 444, reversing 42 Hun 116, 5 N. Y. St. Rep. 157; In re Goodman, (1895) 146 N. Y. 284, 40 N. E. 769, affirming 84 Hun 53, 31 N. Y. S. 1043. See also In re Garvey, (1895) 147 N. Y. 117, 41 N. E. 439, modifying 84 Hun 611, 32 N. Y. S. 689.

Purpose of section. The mischief against which this section is aimed is "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, (1887) 107 N. Y. 55, 13 N. E. 444, reversing 42 Hun 116, 5 N. Y. St. Rep. 157.

Meaning of residence." The domicil or home requisite as a qualification for voting purposes means a residence which the voter voluntarily chooses and has a right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention to change it." People v. Cady, (1894) 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399.

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Prison as residence.- Under no circumstances is a prison the residence of its inmates within the purview of this section. Thus, one who had been confined in the Tombs for seven years does not acquire a legal residence there though his confinement was on successive terms of six months ordered in each instance at his application and request and though during the period thereof he was allowed unusual liberty by the warden of the prison. "The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for all except the keeper and his family, and a person cannot under the guise of a commitment or even without any commitment, go there as a prisoner, having a right to be there only as a prisoner, and gain residence there." People v. Cady, (1894) 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399.

Effect of intention of student. The bare intention of a student as manifested by his presence at a seminary to change his residence thereto is not potent to except his case from the mandate of this section that residence shall neither be gained nor lost for the purposes of voting by a sojourn at a seminary of learning. In re Barry, (1900) 164 N. Y. 18, 58 N. E. 12, 52 L. R. A. 831; In re Garvey, (1895) 147 N. Y. 117, 41 N. E. 439, modifying 84 Hun 611, 32 N. Y. S. 689; In re Goodman, (1895) 146 N. Y. 284, 40 N. E. 769, affirming 84 Hun 53, 31 N. Y. S. 1043; Matter of McCormack, (1903) 86 App. Div. 362, 83 N. Y. S. 847. Thus, a student is not qualified to vote in the election district wherein the seminary which he attends is situate, by reason of the fact that in entering the seminary he renounced all other residences or homes and agreed to remain there until assigned to duty after graduation. In re Barry, (1900) 164 N. Y. 18, 58 N. E. 12, 52 L. R. A. 831.

Actual change of residence by student.- The presence of a student in an institution of learning does not absolutely prevent him from changing his former legal residence. If circumstances independent of his presence at the seminary clearly evince an actual change of residence thereto, the student

is entitled to vote in the election district wherein the seminary is situated. In re Barry, (1900) 164 N. Y. 18, 58 N. E. 12, 52 L. R. A. 831; In re Garvey, (1895) 147 N. Y. 117, 41 N. E. 439, modifying 84 Hun 611, 32 N. Y. S. 689; In re Goodman, (1895) 146 N. Y. 284, 40 N. E. 769, affirming 84 Hun 53, 31 N. Y. S. 1043; Matter of McCormack, (1903) 86 App. Div. 362, 83 N. Y. S. 847. In the Matter of Goodman, supra, after stating that the mere taking of rooms in a seminary by a student with the intent to establish his residence there, did not effect a change in his legal residence, the court said: “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 wholly 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. 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 a result could be reached and nothing in the one before us takes the situation out of the constitutional rule." That statement of the law was quoted with approval in the Matter of Garvey, supra. The court in that case made these additional remarks in its own behalf: "We have to say

in conclusion that unless the rule laid down in the Goodman case and followed in the case at bar is rigidly enforced the constitutional provision now construed will be nullified. It may be urged that the enforcement of this rule will render it well nigh impossible for a student to establish a residence in a seminary of learning, but the very obvious answer is that the letter and spirit of the constitution contemplates such a result; the sojourn of the student is assumed to be temporary, and the law preserves to him his former residence, notwithstanding his absence therefrom.” The court there held, however, that a student who on entering a seminary had notified the registrar of the election district wherein he formerly resided to strike his name from the list of the registered voters of that district, and who for the purposes of his eclesiastical status had acted on the presumption that his residence was actually changed, had sufficiently manifested a purpose to change his legal residence and that he was therefore entitled to vote in the district wherein the seminary was situated.

The intention of the inmate of an asylum or other charitable institution to change his residence to the place at which the asylum or institution is located will not except his case from the operation of this section, the stay of an inmate of such an institution being conditioned upon and limited to the duration of the charity which he enjoys without regard to his personal desire in the matter. Silvey v. Lindsay, (1887) 107 N. Y. 55, 13 N. E. 444, reversing 42 Hun 116, 5 N. Y. St. Rep. 157

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Soldiers' Home as asylum.- The Soldiers' Home, incorporated under the act of 1876 (ch. 270, Laws of 1876), is an asylum" within the purview of this section, being supported at the public expense. Accordingly, its inmates neither gain nor lose residence for the purpose of voting by reason of their sojourn therein. Silvey v. Lindsay, (1887) 107 N. Y. 55, 13 N. E. 444, reversing 42 Hun 116, 5 N. Y. St. Rep. 157.

§ 4. Registration of voters.

Laws shall be made for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established, and for the registration of voters; which registration shall be completed at least ten days before each election. Such registration shall not be required for town and village elections except

by express provision of law. In cities and villages having five thousand inhabitants or more, according to the last preceding statę enumeration of inhabitants, voters shall be registered upon personal application only; but voters not residing in such cities or villages shall not be required to apply in person for registration at the first meeting of the officers having charge of the registry of voters.

Const. 1821, Art. II, § 3; continued without change in Const. 1846, Art. II, § 4; amended, Const. 1894, Art. II, § 4.

Registration by rural residents. This section "in providing that voters residing in rural districts shall not be required to apply in person at the first meeting of the officers having charge of the registry of voters, necessarily implies that such voters may be registered at that meeting without applying in person." Fraser v. Brown, (1911) 203 N. Y. 136, 96 N. E. 365, Ann. Cas. 1913B 14, reversing 146 App. Div. 898, 131 N. Y. S. 1115. See also Rupert v. Rees, (1914) 212 N. Y. 514, 106 N. E. 323, reversing 164 App. Div. 922, 149 N. Y. S. 1108. Accordingly, section 6 of chapter 649 of the Laws of 1911, providing that all voters residing outside of cities or villages with a population of five thousand or more whose names do not appear on the poll book of the last general election shall apply in person in order to be registered, is unconstitutional. Fraser v. Brown, (1911) 203 N. Y. 136, 96 N. E. 365, Ann. Cas. 1913B 14, reversing 146 App. Div. 898, 131 N. Y. S. 1115. Likewise, the provision of section 159 of the Election Law, as amended by chapter 820 of the Laws of 1913, "requiring proof by the affidavits in the form prescribed of himself and two qualified electors as the condition of the registration of an elector without his personal appearance at the first meeting of the registry board in districts outside a city or village having five thousand inhabitants or more," violates this section. Rupert v. Rees, (1914) 212 N. Y. 514, 106 N. E. 323, reversing 164 App. Div. 922, 149 N. Y. S. 1108. In the case last cited it was said: "The requirement is expressed in such plain and positive terms as to leave no doubt of the legislative intent. There is thus no room for construction.' The court in Matter of Fraser v. Brown (203 N. Y. 136), condemned as unconstitutional a statute which directly required the personal appearance of voters residing outside of cities or villages having a population of five thousand or more, whose names do not appear on the poll book of the last general election. We now hold that a statute which indirectly accomplishes the same result is equally void as being in violation of the express constitutional provision hereinbefore quoted."

Registration in cities of first class.- The provisions of chapter 521 of the Laws of 1908 are not unreasonable in so far as they require the electors in cities of one million or more inhabitants to sign the public copy of the register when they can write and to truthfully answer the statutory questions propounded to them when they cannot write, and do not contravene the provisions of this section. Ahern v. Elder, (1909) 195 N. Y. 493, 88 N. E. 1059, affirming 130 App. Div. 900, 115 N. Y. S. 1108.

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Differentiation in method of ascertaining right to vote. Under this section a differentiation may properly be made as to the different parts of the state in the method of ascertaining the rights of citizens to exercise the franchise." Accordingly, the amendment to section 31 of the Election Law, made by Laws 1905, chapter 675, providing that in applications to strike the names of electors from the register in the metropolitan elections districts, the affidavits of the superintendent of elections or his deputies, showing that on inquiry at the residence claimed by the elector the affiant was informed that he did not reside at said premises thirty days before election, shall be presumptive evidence against the right of the elector to vote, is not unconstitutional because it is limited in effect to the metropolitan elections districts

"In a

only and does not apply to the rest of the state. Matter of Morgan, (1906) 114 App. Div. 45, 99 N. Y. S. 775. In that case the court said: great city containing at all times a large transient population the opportunity of fraud in elections, in the absence of legal restraint, is great. To such an extent was this realized that long prior to the passage of the general Election Law elections in the city of New York were controlled by the provisions of the Consolidation Act, provisions differing from those in other parts of the state, and careful and minute in their particularity as to all the manifold details of the elections. The Election Law to-day has different requirements in cities where large numbers of people are massed and for rufal districts where almost everybody is known to the officials. The purpose of the law has always been to insure the honesty of the elections and not to disfranchise any legal voters, and the acts governing the elections must be approached with a view of ascertaining what were the conditions existing at the time of the enactment of the law, what were the evils aimed at, and then whether the proposed remedy was proper.”

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Submission of abstract question as "election.”—The submission to the people of an abstract question does not constitute an "election within the meaning of that term as here used. Hence chapter 819, Laws of 1913, submitting to the people the question as to whether or not there should be a constitutional convention is not invalid because failing to provide for the registration of voters in accordance with the provisions of this section. Schieffelin v. Komfort, (1914) 163 App. Div. 741, 149 N. Y. S. 65, affirmed (1914) 212 N. Y. 520, 106 N. E. 675, L. R. A. 1915D 485. In that case this was said: "The election specified in this article would seem to refer to the general election whereby the electors of the state elect the officers who are to be elected by the people. When there are no such officers to be elected, the vote of the people not at a general election upon an abstract question submitted to them for their determination can hardly be said to be an election within the ordinary meaning of that term. Nobody is elected. Nothing is done to which the word election would apply."

Legislative power.- The Constitution not only contains no prohibition against the enactment of laws for regulating the right of suffrage, but by this section it positively demands the passage of such laws, and so long as it does not add to the qualifications required of electors by the Constitution, the, legislature will be supreme. Ahern v. Elder, (1909) 195 N. Y. 493, 88 N. E. 1059, affirming 130 App. Div. 900, 115 N. Y. S. 1108.

§ 5. Manner of voting.

All elections by the citizens except for such town officers as may by law be directed to be otherwise chosen, shall be by bal'ot or by such other method as may be prescribed by law, provided that secrecy in voting be preserved.

Const. 1777, Art. VI; amended, Const. 1821, Art. II, § 4; continued without change in Const. 1846, Art. II, § 5; amended, Const. 1894, Art. II, § 5.

Election of town supervisors.- Apparently, under the clause excepting town officers from the requirements of this section, the legislature may provide such methods as it likes for the election of town supervisors. "Here was permission for the legislature to authorize the election of town supervisors, not only by ballot, but after the old town meeting fashion of calling for the ayes and noes, or by a show of hands or other division. So that, under the fundamental law, it was competent for the legislature to