I am of the opinion that, under the Constitution of this State, the Legislature has no power, by act or otherwise, to authorize the arrest of an elector for an offense committed against the Election Law of the State (Laws of 1896, chap. 909, as amd.), when such elector has prima facie complied with the laws which entitle him to vote, so as to prevent him from voting when he presents himself for such purpose, or to otherwise authorize interference . with the free, full and untrammeled exercise of such right. The *31right to vote is guaranteed to the citizen by the Constitution of the State (Art. 2, § 1); this right is unqualified, when compliance is had with the law sufficient to evidence the same, i. e., when he is properly registered as required by law. This being done, there can be no lawful interference with the exercise of the right under any pretense or by any authority whatever, except to challenge the elector’s right to vote. If, when challenged, the elector takes the prescribed oath, he must then be permitted to cast his vote without further interference by any person, officer or otherwise. It is evidently the scheme of "the Constitution and the Election Law auxiliary thereto to secure to the citizen the absolute right to exercise the elective franchise. For the purpose of preventing frauds and crimes by individuals not authorized to exercise this right laws have been passed safeguarding the same, and penalties have been provided for a violation of such laws. Thereunder prosecutions may be had of the fraudulent voter in the inception of evidencing his right to vote and may follow the full consummation of his act after his ballot has been cast. When the voter has complied with the Election Law so far as to evidence his right to vote, then he must be permitted to cast the same, subject alone to the single right of challenge. The citizen who has registered, if charged with false registration, may be proceeded against before he presents himself to vote or after he has performed that act. The act of voting embraces not alone the citizen’s presence in the voting booth, but every step in the process of going to the election booth with intent to vote, until the final consummation of casting the ballot. Ho interference with the citizen after he has registered, except to challenge his right to vote, either by threats of arrest or by any other form of intimidation, or by interference when exercising the right, is permitted. Each and all such acts are unlawful no matter by whom perpetrated.
If the statute in question in this action be construed as authorizing the arrest of an elector, duly registered, while in the act of proceeding to vote or voting, it invades the constitutional requirement and is invalid. As I view the act, however, such is not its necessary construction. The authority to arrest is found in subdivision 2 of section 6 of the act (Laws of 1898, chap. 676). This provision authorizes all deputies to “arrest any person without warrant who in his presence violates or attempts to violate any of the provisions of the Election Law or the Penal Code relat*32ing to crimes against the elective franchise.” There is nothing in the terms of this provision which authorizes an arrest when the voter, is exempted therefrom by virtue of any provision of law, constitutional or otherwise. The statute does not pretend to authorize the deputy to make an arrest of the person of the elector during the time when he is in the act of voting. If it did, the authority would be invalid. It is clearly permissible, therefore, to construe this provision as authorizing an arrest without a warrant in the manner and form as prescribed by law and so bring it in harmony with the constitutional right of the voter by making it obedient and subordinate to such constitutional right. Such a construction is not only authorized but is compelled in order that force and effect may be given to the constitutional requirement and at the same time preserve the legislative enactment. (People ex rel. Kingsley v. Pratt, 22 Hun, 300.) Such construction preserves and upholds the authority of the deputy to make an arrest for infringement of the Election Law, subject, however, to the right of the elector to cast his vote.
• The defendant by insisting that the elector should be permitted to vote before he could be placed under arrest and deprived of his right, Was not guilty of any unlawful act, for the reason that no authority was conferred upon the officer to make the arrest and thereby deprive the elector of his right to vote. That act being unlawful, the defendant was justified in resisting it. The defendant was not justified, however, in interfering with the officer after the elector had cast his vote. He then became subject to' arrest, and that without a warrant, if he had committed a felony, or if a felony had been committed and the officer had reasonable ground to believe him to be the person who committed it. Under such circumstances, the authority of the deputy was ample to make the arrest; and the defendant, if he in any wise interfered with or prevented the officer from performing his duty, became guilty of a felony, for which he could be properly tried, convicted and punished. There is some evidence in the present record which would authorize á jury to find that the defendant did interfere with the deputy after the elector had voted; and if it be made to appear that he had committed a felony, then such interference by the defendant would constitute an offense for which he could be properly *33indicted, tried and convicted. The difficulty, however, with the. present situation is that no sufficient proof has been offered to show-that Bassett committed any offense against the Election Law or otherwise ; and such fact is required to be established by competent and sufficient proof before the defendant can be adjudged.guilty of any offense, for without such fact being established the deputy had no authority whatever to make the arrest at any time.
I concur with Mr.. Justice McLaughlin in his opinion. As no right of arrest of Bassett by the deputy in the present case has-been shown, the conviction cannot be upheld. It should, therefore, be reversed and a new trial granted.