In October 1970 plaintiff was a student at Seton Hall University (hereinafter university) residing in one of the dormitories on campus. On or about October 15, 1970 he applied to the Clerk of South Orange to register as a voter, which the Clerk refused to do. For determination is whether plaintiff, as a student at the university, was entitled to register and vote from the 5th Election District in South Orange.
On October 19, 1970 plaintiff, pursuant to N.J.S.A. 19:4-4.5, filed a verified statement with the Commissioner of Registration (hereinafter referred to as Commissioner) setting forth his domicile as the university. The cited statute provides, among other things, that the filing of the statement
The Commissioner refused to register him.
Generally, a student is presumed not to have the right to vote in the municipality where a university is located. 29 C.J.S. Elections § 22 at 80; 25 Am. Jur. 2d, Elections, § 71; Annotation 98 A.L.R. 2d 487 (1964). He must overcome this presumption by a preponderance of the evidence. Brueckmann v. Frignoca , 9 N.J. Misc. 128 (Cir. Ct. 1931). The burden of establishing the fact of domicile is on the party who relies on it. Domicile is factual and
each case must be evaluated and determined by its own facts and circumstances. Lea v. Lea , 18 N.J. 1 (1955).
It is in this legal context that the cited statutory presumption of plaintiff's statement creating a prima facie fact of domicile must be judged.
The cited statute permits acceptance of plaintiff's statement as to domicile in the absence of evidence appearing in the statement or otherwise. Part of the contrary evidence before the Commissioner were answers in plaintiff's statement filed on October 19, 1970, wherein plaintiff listed two addresses as residences: Fort Mott State Park, Salem, New Jersey (hereinafter Fort Mott) and 400 South Orange Avenue, South Orange.
The cited statute permits the Commissioner to act in a summary manner. He may or may not conduct an investigation and may or may not require additional information from the affiant. It appears neither was done or requested by the Commissioner at the time plaintiff filed his statement.
At the hearing before this court plaintiff's counsel stated that the Commissioner's attorney had, after the suit was instituted, propounded interrogatories which plaintiff answered. This the Commissioner could have done at the time the statement was filed by plaintiff. Plaintiff's counsel conceded that if it had been done, the probabilities were that the Commissioner's decision would be the same.
To now remand the matter to the Commissioner would serve no useful purpose. The interrogatories will be considered as propounded by the Commissioner nunc pro tunc October 19, 1970. The court concludes that the Commissioner rebutted the presumption or prima facie evidence of domicile as set forth in the cited statute.
In In re McCarthy , 18 N.J. Misc. 5, 7 (Cir. Ct. 1939), the court, in considering an election matter, referred to temporary residences and held that a temporary residence is not an actual ...