I think that the determination below was right and that the order appealed from should be affirmed. The courts have followed, as I understand, a decision made in 1902 by Mr. Justice BISCHOFF in Matter of Gillespie v. McDonough, (39 Misc. Rep. 147). There a precisely similar situation existed; the committee of the state convention of the Prohibition party nominating as their candidate for the office of attorney-general the candidate of the Democratic party for the same office. That decision has been acquiesced in for the past eight years. The legislature has, repeatedly, had under consideration amendments of the Election Law (Cons. Laws, ch. 17) and, in 1909, revised and consolidated that law; but the provisions of the section, (136), in question then and now, have not been changed. I am clear that when the committee of the Independence League party, duly authorized by resolution of its delegates, in convention assembled, "to make original nominations for justices of the Supreme Court," etc., placed in nomination the respondent, Garret J. Garretson, that was an original nomination by the party and that it was not invalidated, within the provisions of section 136 of the Election Law, because Garretson was a candidate for the same office on the ticket of the Republican party. Section 120 of the law is entitled "Party Nominations" and provides that "Party nominations of candidates for public office can only be made by a convention, or by a duly authorized committee of such convention, of a political party which at the last preceding general election, * * * at which a governor was elected, cast ten thousand votes," etc. The section contemplates that the "party nomination" may be made by the convention, or by its committee appointed for the purpose. The ordinary mind would, irresistibly, infer that the nomination by such committee would be as "original," as *Page 65 though made by delegates in convention. That such was, also, the legislative understanding seems to be apparent from the language in the next section. Section 121, in providing for "Party certificates of nomination," requires that "the party certificate * * * shall contain the title of the office for which each person is nominated, and * * * shall, also, designate * * * the name of the political, party which the convention, primary or committeemaking such nomination represents. * * * When the nominationis made by a committee, the certificate of nomination shall contain a copy of the resolution passed at the convention," etc. The whole intendment of this section is aimed at the certificate, whereby an original nomination of a candidate is made by a political party, whether made in convention, or by the committee there selected by the delegates for the purpose. When, later, the situation is considered, which may arise from vacancies occurring, we find section 135 enacted to meet it. It is entitled "Filling vacancies in nominations." It provides that "If a nomination is duly declined, or the attempt to nominate at a primary results in a tie, or a candidate regularly nominated dies before election day, or is found to be disqualified * * * or if any certificate of nomination is found to be defective, * * *, the committee appointed on the face of such certificate of nomination * * * may make a new nomination to fill the vacancy so created, or may supply such defect," etc. Then section 136 follows, whose language gives rise to the question before us, which is entitled "Certificates of new nominations." It provides how "the certificate so made" shall be executed and filed, and what shall be the duty of the secretary of state upon its filing. Then, immediately, follows in the section the provision that "When no nomination shall have been originally made by a political party or by an independent body for an office, or when a vacancy shall exist, it shall not be lawful for any committee of such party or independent body authorized to make nominations or to fill vacancies, to nominate or substitute the name of a candidate of another party or independent body for such office; it *Page 66 being the intention of this chapter that when a candidate of one party is nominated and placed on the ticket of another party or independent body, such nomination must be made at the time and in the manner provided for making original nominations by such party or independent body." I think that this section, when read in the light of the preceding sections, should be regarded as having reference to the "new nominations" to be made, where the vacancies have occurred, which the preceding section 135 has covered in its provisions. If we take the view, which I think proper and reasonable, of section 120, that nominations of party candidates made according to its provisions are original nominations, we have no difficulty in referring the language of section 136 to, and in harmonizing it with, the provisions for making new nominations, made necessary by the happening of the events specified in section 135. The inhibition of section 136 against the selection of a candidate on another ticket for the same office would not apply to a case where the committee was acting for the convention, in making nominations for offices upon their party's ticket. In that case the intendment of section 136, that such a nomination "must be made at the time and in the manner provided for making original nominations by such party," would be satisfied. The intent of the statute may be so inartificially expressed as to give rise to debate; but, when we consider the provisions in their order and in their apparent connection with the subjects of each, we should find no difficulty in interpreting their purport in the way I have indicated. The question has been fully discussed in the opinions rendered by Justice BISCHOFF, in Gillespie v. McDonough, (supra), and by Justice STAPLETON in the present case, and I deem it unnecessary to speak further. I think that our affirmance should be rested upon the ground stated, as sufficient for the disposition of the appeal. As a majority of my associates, however, desire, also, to concur with the chief judge in the views expressed by him, I shall join with them in holding that the provisions of section 136 are unconstitutional and, therefore, invalid, in forbidding the committee *Page 67 of a political party, authorized to make nominations, to nominate as a candidate for an office on the party ticket a person who is the candidate of another party for the same office. The power of the legislature to regulate may not, validly, be stretched so far as to restrict a body, authorized to make nominations for a political party, in its right to select any duly qualified person as a candidate for public office. It cannot deprive the electors of the right to vote for any person for a public office not disqualified under our laws.
I think the affirmance may well be placed upon the first ground discussed; but if necessary to the affirmance, I shall concur with the chief judge's opinion.