Counsel for the respondents waived at the Special Term all objections to the maintenance of the proceedings except on the merits. The need of a prompt decision permits only a brief statement of our views. The question involved is whether the provisions of section *Page 516 159 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 article two, section four of the Constitution of this state, whereby it is provided that "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."
The prescribed form of affidavit requires the affiants, the two electors, to state on knowledge the date and place of birth of the person sought to be registered; if not native born the year and court in which he was naturalized; that he has resided in the election district for the last thirty days and in the county for four months, and that he has been an inhabitant of the state for one year. Undoubtedly it would be competent for the legislature to require proof to the satisfaction of the inspectors of the facts required to be stated in the prescribed form of affidavit. The vice of the requirement is that a selection is made of the persons who are to make the affidavits, regardless of the possibility of obtaining such proof and of its probative value. Such a selection is so arbitrary and unreasonable as to exceed the legislative discretion. A man unable to find two electors who knew the date of his birth could not be registered without his personal appearance, although he might be able to furnish the affidavit of his mother. A moment's reflection will suggest to any one the difficulty of finding two electors in his community who can swear to the date of his birth. In the case of electors who have moved within a year possibly from remote parts of the state into communities where they were unknown, it would usually be more troublesome to obtain the required affidavits than to *Page 517 appear in person before the registry board, and in many cases it would be impossible to find two electors who could swear on knowledge to the necessary facts respecting either birth or residence, although persons, not electors, might be at hand, whose affidavits would be entitled to the highest probative value. Though the appellants are qualified to vote at the next ensuing election, they are unable to furnish the prescribed affidavits of two electors, and it is obvious that their cases are not exceptional. If the statute is valid, electors in such cases must personally appear or they cannot be registered.
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. This 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.
It remains to consider to what extent the valid provisions of the section in question may be separated from the invalid. The affidavit of the person seeking registration might be required. But the statute so couples the requirement as to his affidavit with that as to the affidavits of the two electors as to make any attempt to sever the two savor of judicial legislation. The language is "by the affidavits of each such person and of two qualified electors." If the requirement as to the latter be eliminated, the statute would then provide for the registration of a person on his own affidavit alone, although, if that possibility had been contemplated, the legislature might have provided for or indeed required other proof. The phrase just quoted may be eliminated *Page 518 without destroying the legislative scheme. The statute would then require the inspectors at the first meeting to place on the register the names of those who voted at the last preceding general election and also those presenting themselves in person, except such as are proven to their satisfaction to have ceased to be electors in the district since such election, and also the names of those proven to the satisfaction of such inspectors to be then or thereafter entitled to vote at the election for which the registration is made, which proof may, of course, be made by affidavit or otherwise. To that extent the statute is valid.
It is undisputed that the appellants are qualified electors in the district in question. But the respondents propose to refuse to place their names upon the register at the first meeting for registration unless they appear in person or furnish the proof required by the provisions of the statute which we hold to be void. The orders should, therefore, be reversed and the motion granted, but, as this is obviously a test case, without costs.