I agree with much that is said in the dissenting opinion, and I am constrained to question much that is said in the prevailing opinion, though I concur in its result. The method of voting as provided in chapter 43 of the new charter of the city of *Page 432 New York is intended to permit the election of officers of government by a minority of the voters, and thus to give to minority groups a share in government which must be denied to them if we adhere to the principle that all officers of government must be elected by a plurality of the voters of the voting district, or appointed by an officer or body so elected. Its purpose is to limit the dominance of majorities and that purpose cannot be attained if each voter is permitted to register his choice of candidates for every elective official position to be filled by election in the voting district.
Attempted analogy between such a system and a system of electing officers by majority vote in limited districts seems to me entirely specious. Distinction here is based on fundamental principle. The question still remains whether the principle of election by plurality of all the votes cast in the voting district is embodied in the Constitution. Undoubtedly it is, at least, doubtful whether article II, section 1, of the Constitution does not require adherence to that principle. That is hardly disputed even by those who drafted the provisions of the charter now challenged. In other jurisdictions the courts have so construed similar provisions. Even in the case of Reutener v. City of Cleveland (107 Ohio St. 117), where proportional representation was sustained, the court pointed out that the language of the Ohio Constitution is different. There are, at least, indications in the opinion that, except for such difference in language, the court might have felt itself constrained to reach other result.
I find it difficult indeed to reconcile the system of proportional representation with the constitutional provision that each voter "shall be entitled to vote in the town or ward where he actually resides * * * for all officers that now are or hereafter may be elective by the people." It is, of course, true that this constitutional provision was inserted in the Constitution primarily in order to prohibit discrimination between voters, and that *Page 433 nobody then thought of "proportional representation" as a practical political expedient. None the less, a literal or even a reasonable construction of the language of the Constitution would seem to exclude a system by which the votes of each voter may be counted for only one candidate though more than one officer is to be chosen at the election. Nothing said or decided in any case in this court points a way to other construction.
Nevertheless, in view of the fact that the constitutional provision was drafted to meet a different problem, it may be possible to construe the provision differently. Though I share Judge RIPPEY'S misgivings about the possible result of the innovation, such misgivings may not blind me to the fact that the innovation does not violate the spirit of any of the great basic principles which are intended to be protected by the Constitution and that it is possible to construe the letter of the Constitution in manner which will confine its letter to the purposes which it is clear that the letter was intended to cover. There may then be room for reasonable doubt as to the scope of the constitutional provision and reasonable basis for the conclusion that those who challenge the validity of the new system of voting have not shown unavoidable conflict between such system and the provisions of the Constitution. For that reason I agree with the majority of the court that we may not declare invalid the charter provisions here challenged.