(dissenting):
In Matter of Callahan (200 N. Y. 59) Chief Judge Cullen, with whom concurred four of the learned judges of the Court of Appeals, said: “I shall not discuss the extent of the power of the Legislature to regulate elections other than to say that concededly the power must be so exercised as not to deny or impair the rights of the electors * * *. The proposition which I assert is this: That if the Legislature does grant to any: convention, committee or body the right to make nominations,- it cannot limit the right of such convention, committee or body to nominate as its candidate any person who is qualified for the office. The electors have the right to vote for whom they will for public office, and this right cannot be denied them by any legislation. "x" 'x' * Equally, any body of the electors has the right to choose whom it will for its candidate for office and to appeal to the whole electorate for votes in his .behalf. * * * If it [the Legislature] cannot enact arbitrary exclusions from office, equally it cannot enact arbitrary exclusions from candidacy for office. What exclusion could be more arbitrary than that one party or organization should not be permitted to nominate the candidate of another. * * * The fact is plain that the legislative provision is solely intended to prevent political combinations and fusions, and- this is the very thing that I insist there is no right to prevent or hamper as long as our theory of government prevails, that the source of all power is the people as represented by the electors. * * * Legislation to be valid must not only not deprive the elector of his right to vote for whom he will, but for what candidate he will, and it must not discriminate in favor of one set of candidates against another set.”
In that case the statute condemned as unconstitutional was section 136 of the Election Law(Consol. Laws, chap. 17; Laws *370of 1909, chap. 22),. which provided: “When no nomination shall have been originally made by a political party or by an independent body for an office, or when a vacancy shall exist, it .shall not be lawful for any committee of such party or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 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.”
Three candidates for the office of justice, of the Supreme Court-had been nominated by the Bepublican party. Subsequently the'same candidates had been nominated by a committee of the Independence League. Objections to the certificate of nomination executed by said committee were filed with. the Secretary of State.
It will be. seen that the names of these candidates would. have appeared upon the official ballot in the ticket of the Bepublican party, and any elector desiring to vote for them would have had the opportunity to so vote by marking the voting- space opposite these names upon said ticket. They had been nominated by the Independence League, and as candidates of said league their election would have been advocated by said league, and its adherents instructed how to- cast their votes for them. .But the right to nominate was held so important, the right to appear upon the ticket of the Independence League so essential, that a statute denying said right was held void. It seems to me that the reasoning of the opinion cited applies to the matter at bar. “The fact is plain that the legislative provision is solely intended to prevent political combinations and fusions, and this is the very thing that I insist there is no right to prevent or hamper. ”
Political parties are recognized in the Constitution (Art. 2, § 6). They are recognized in the election laws. The official ballot itself is not of the .Massachusetts form where all candidates are grouped under the title of the respective offices, but' provides for'separate party tickets, for convenience spread side *371by side on one piece of paper. Heretofore all candidates of the party appeared upon the ticket of the party. By the law in question, if fusion exists, this is not so. A party ticket is not complete. An elector desiring' to vote the whole ticket must grope his way through a large ballot to find his party’s nominees. He may not notice the words “See column ” which are to be printed in the same type as the names of candidates and so vote it as a complete ticket. There is no nomination, for the candidate’s name does not appear where it should upon his party ticket, but upon some other. " As the purpose of the law is obvious, I think this matter is controlled in principle by the Callahan Case (supra).
I dissent, and vote to affirm the order appealed from.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs, as matter of law and not in the exercise of discretion.