
    The People of the State of New York ex rel. Thornton Floyd Turner, Appellant, v. William Plimley, Commissioner of Jurors for the City and County of New York, Respondent.
    
      Jumrs in New York city—a native and resident of New Jersey doing business in New York may be compelled to serve as a trial juror in that city— Code of Civil Procedure, § 1079.
    A native and resident of the State of New Jersey who votes in that State and spends the summer months there, but who conducts business in the city of New York, is eligible as a trial juror in the city and county of New York, and ■may properly be required to serve as such.
    Where a person has a substantial, although not a domiciliary, residence in the State of New York, that State may exact from him the performance of a political duty which rests upon those who are legally domiciled within it.
    It is within the power of the Legislature to pass an act providing that ‘' a person dwelling or lodging in the city and county of New York for the greater part of the time between the first day of October and the thirtieth day of June next thereafter, is a resident of that city and county for that jury year, * * * and it is not necessary that he should have been assessed or should have voted there.”
    Appeal by the relator, Thornton Floyd Turner, from an order of the ¡Supreme Court, made at the New York Special Term, bearing date the 29th day of June, 1896, and entered in the office of the clerk of the county of New York, denying his motion for a peremptory writ of mandamus directing the commissioner of jurors for the city and county of New York to strike his name from the list of jurors, for the city and county of New York for the years 1895 and 1896.
    
      Herbert B. Turner, for the appellant.
    
      Francis M. Scott and Thomas E. Rush, for the respondent.
   Order affirmed, with costs, upon the opinion of Beekman, J., in the court below.

Present •—• Barrett, Rumsey, Patterson and Ingraham, JJ.

The following is the opinion of Beekman, J., in the court below:

Section 1079 of the Code of Civil Procedure prescribes the qualifications of trial jurors in the city and county of New York. Among these is the requirement that such a juror must he a male citizen of the United States and a resident of that city and county. Section 1080 provides that “ a person dwelling or lodging in the city and county of New York for the greater part of the time between the 1st day of October and the 30th day of June next thereafter is a resident of that city and county for that jury year within the meaning of the last section, and it is not necessary that he should have been assessed or should have voted there.”

This has been the law in this State for twenty-six years, the first provision on the subject being found in chapter 539 of the Laws of 1870, entitled “An act in relation to jurors in the city and county of New York.” The reason for the enactment is a matter of common knowledge. For many years it had been the practice of .a large number of persons who were residents in fact of this city to acquire a legal domicile in other parts of the State, and in other States, usually at their places of summer abode, which, while technically good, still in no respect changed their practical relations to this community. Their business continued to be conducted here, their social pleasures and attachments were still sought and maintained here, and their actual residence continued here, except during the summer months, when considerations of health and recreation rather than political attachment led to a short sojourn at the legal domicile. This was done for the purpose of escaping taxation and jury service in this county. Provision has been made by statute intended to foil the attempt to avoid taxation by this expedient, although, perhaps, with indifferent success; and it was with the same deterrent purpose in respect to attempts to evade jury service that section 1080 of the Code was enacted.

The relator concededly comes within the letter of this section. He resides in this city during the period therein mentioned, and conducts his business, which is that of an architect, here. He spends the summer months at Englewood, in the State of New Jersey, and votes in that State. It is fair to him to say that he was born in the State of New Jersey, and apparently has always treated that State as his legal domicile. Having been placed by the commissioner of jurors upon the list of those qualified as trial jurors within this city, he now applies to this court for a mandamus to compel the commissioner to strike his name therefrom, on the ground that he is not a citizen of this State, and that for this reason the Legislature is without power to compel him to serve in that capacity here. His counsel has furnished the court with a very able and erudite argument reviewing the history of trial by jury, for the purpose of establishing his contention that, at common law, only those who were of the vicinage could be impaneled as trial jurors, and that this means that such persons must be citizens of the State and residents of the county in which they are called upon to act.

I thinlc we may eliminate from discussion the idea that a citizen of the United States resident in one State is, in any sense whatsoever, an alien or foreigner in respect to citizens of other States. Citizenship of the United States carries with it such constitutional guaranties that what is now known as citizenship of a State is acquired by mere residence at the volition of the individual. No additional naturalization is required, nor is any oath of allegiance necessary, so-that a change of citizenship from one State to another is merely a change of domicile. Now there is nothing in the Constitution of the United States which prohibits a State from treating those who are within its borders, although legally domiciled elsewhere, in the same manner as its own citizens. Section 2 of article 4 provides that citizens of each State shall be entitled to all of the privileges and immunities of citizens in the several States, and by the 14th amendment, as it is called, all persons born or naturalized in the United States and subject to the jurisdiction thereof are -declared to be citizens of the United States and of the State wherein they reside, and a positive inhibition is laid upon each State against.making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.

While the protection of person and property and the right to pursue any legal calling are thus secured to each citizen of the United States as matter of right in every State of the Union, on a footing of full equality with the citizens of such State, T see no reason why a State in which such person may have a substantial, although not a domiciliary, residence may not exact from him the performance of some of those political duties which rest upon those who are legally domiciled there. It certainly is not unreasonable for the State to expect some return for the protection which it affords. The argument against this, on the ground that the State is compelled by the Constitution of the United States to afford such protection, and, therefore, does not render it as a voluntary act for which it is entitled to expect a proper consideration, is not entitled to much if any, weight. The United States Constitution assumes only to forbid discrimination by a State against non-residents, leaving the State substantially in all other respects to the full exercise of its sovereign power.

I think, therefore, that there is no constitutional objection in the way of the enactment and enforcement of the section of the Code under examination in its application to persons in the same situation as the relator. If he has an actual concrete residence within the county for a sufficient length of time to give it a substantial character, I see no reason why he may not be considered as of the vicinage, within the meaning of that term as applied to a juror at common law; and it seems to me to be quite within the power of the Legislature to determine that a substantial, actual residence within the county for a period of time which it may fix, shall constitute a residence qualifying such person for the performance of jury duty.

The only case which I have been able to find that may be considered as at all in point is one which was decided in the Supreme Court of the District of Columbia (U. S. v. Nardello, 4 Mackey, 503). In that case the right of a juror to sit in a criminal case was challenged. It appeared that his home was in the State of Virginia, where his parents lived, and that he voted there. For many years he had been in the habit of spending his annual vacation at his home, but during the rest of the year he actually resided at Washington, where he was in business as agent for a Virginia corporation, and he had no intention of leaving liis employment in that city. It also appeared that whenever he had been out of employment, he returned to his home in Virginia. The court overruled the objection, holding that upon those facts he was to be considered as a resident of the District of Columbia, and Avas, therefore, eligible to serve as a juror therein under an act of Congress prescribing the qualifications of a trial juror to be citizenship of the United States and residence Avithin the district. A remark of Judge Merrick in delivering the opinion in this case is Avorthy of repetition : “ It will not do to say that one shall have of a community all that he can get out of the community, and on the other hand shall not return to the community some corresponding obligation of citizenship.”

I am, therefore, of the opinion that the commissioner of jurors acted within his power in placing the relator upon the jury list, and that the motion should, therefore, be denied.  