Section 331 of the Election Law provides generally for the printing of an official ballot. Subdivision 3 of that section has special reference to ballots for general officers.
“ 3. Ballots for general officers. The names of all candidates for any one office shall be printed in a separate section, and the sections shall be in the customary order of the offices and shall be numbered from one upward by a numeral printed in the upper right hand corner of the section. The names of candidates shall be printed in their appropriate section in such order as the board of elections may direct, precedence, however, being given, except as herein otherwise provided, to the candidate of the party which polled the highest number of votes for Governor at the last preceding election for such officer, and so on. At the top of each section in the center *584shall be printed on one line the title of the office. On the same Une, to the left of such title and immediately above the emblems and voting squares, there shall be printed a direction as to the number of candidates for whom a vote may be cast, which direction shall be punctuated by an exclamation point. If two or more candidates are nominated for the same office for different terms, the term for which each is nominated shall be printed as a part of the title of the office. * * (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 331, subd. 3, added by Laws of 1913, chap. 821, as amd. by Laws of 1916, chap. 537.)
The board of elections pursuant to the provisions of this section, have arranged to print the names of the five candidates for justices of the City Court for the city of New York for full terms in one section, the names of the Republican candidates having precedence over the names of the Democratic candidates, and so on through the list of candidates of other parties. The board of elections have also arranged to print the names on the official ballot to be voted for at the official primaries. The order in which names are printed upon the primary ballot is provided in section 58 of the Election Law (added by Laws of 1911, chap. 891, as amd. by Laws of 1914, chap. 244) in the following language:
“ The order in which the names of candidates shall appear under the title of an office shall be determined by the board or officer with whom designations are filed by lot in the presence of the candidates or their representatives, if present, and other persons required to be notified.”
There are to be elected at the general election this year five justices of the City Court, each for the full term and one justice to fill an unexpired term. The relator is one of the sitting justices whose term is about to expire. He has instituted this proceeding to obtain a peremptory writ of mandamus to direct the board of elections, who are also custodians of primary records, as to the manner in which the names of the candidates shall be arranged upon the ballot, claiming that the method heretofore followed, and which it is agreed the board proposes to adopt this year, is unnecessarily arbitrary and discriminatory and hence void as unconstitutional in violation of section 1 of article 1 of the Constitution which *585provides: “No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.”
Section 5 of article 2 of the Constitution provides: “All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such, other method as may be prescribed by law, provided that secrecy in voting be preserved.”
Except in certain sections of the State where voting by the ballot machine is provided for, the Legislature has provided for a secret official ballot upon which are printed the names of all the candidates for all the offices to be voted for at a given election. After many years of experiment of various kinds it has adopted what may be termed a modified form of the Massachusetts ballot. In that State there is an educational qualification for voters and the candidates for office are grouped in alphabetical order in separate sections for each office to be filled .without party emblem. There being no such educational qualification provided by the Constitution of this State, the Legislature, having done away with the party column system of ballot, by which one cross made in the circle at the head of the party column voted all the candidates of the party from Governor to coroner, has provided the group system for each office, the party affiliation of each candidate being indicated by a party emblem on the same line with the candidate’s name and to the left thereof. As the Court of Appeals said in Matter of Hopper v. Britt (203 N. Y. 155): “As long as the face of the ballot is a plane surface, which has always been the case with us, and there is a party column, some party must have the first place.” So it has been provided since 1896 that precedence shall be given to the candidate of the party which polled the highest number of votes for Governor at the last preceding election for such officer. The validity of this rule seems never heretofore to have been questioned and it was assumed by the Court of Appeals in the case just cited. The provision which put a party column first on the ticket when the ballot contained party columns has been applied by the Legislature to the individual candidates in their respective groups now that *586the party column has been abolished. As some one must be first and there must be some rule as to who shall be first, the rule adopted was probably based upon the proposition of convenience to the greatest number decided by the result of the preceding election.
We find no difficulty with so much of the law, therefore, as provides for the initial place in each group to be given to the candidate of the prevailing party at the last previous election as this rule has been followed without question for twenty-one years, but it is claimed that when a certain number of officers are to be elected in the same group, as for instance, judges of the Court of Appeals, justices of the Supreme Court, justices of the City Court or coroners, that an unfair and discriminatory advantage is given to the earlier candidates against those lower down upon the fist. It has been recognized that there was some advantage in the higher position and, therefore, it was considered by the Legislature that an alphabetical arrangement would give an advantage to candidates whose names began in the earlier part of the alphabet over those lower down, and, therefore, to equalize the chances, to give a fair opportunity to the man whose name began with “ W ” with the man whose name began with “A,” the Primary Law provided that the order in which the names of candidates should appear “ shall be determined by the board or officer with whom designations are filed by lot in the presence of the candidates or their representatives, if present, and other persons required to be notified.”
This one fair chance having been given for determining the position in the party group in which all had an equal chance, the board in the exercise of the discretion conferred upon it has preserved that order ascertained for the primary election, which is a part of our legal balloting machinery, for the general ballot, and it cannot be said that this method of determining precedence is any more discriminatory or arbitrary than any other method which might be picked out, for under any method which the wit of man could devise some one must be first and some one last.
The relator claims that the arrangement of all the candidates for justices of the City Court in one section with the instruction upon the face of the ballot to vote for five only *587is improper, and that as each justice is a separate officer the candidates for each position should be in a separate section. But the office of justice of the City Court is one although there may be many justices and the law expressly provides for the inclusion in one section of all candidates for any one office. This has been the custom in this State for many years, the arrangement being based upon the proposition that each justice shall have a clear plurality over all other candidates for the office of justice. Any other arrangement might bring about minority representation. While this in the opinion of some might be desirable, it has not met with the general approval of the public or the Legislature.
This court is not vested with legislative powers. The Legislature has fixed the form of ballot to be used and unless its acts are violative of constitutional provisions they must be upheld. Nor should the court by mandamus attempt to direct the board of elections in the exercise of the discretion vested in it by the Legislature in arranging the order of the names of candidates upon the ballot, especially when that board follows the rule of action laid down by the Legislature in the preparation of the initial ballot in the scheme of election, to wit, the primary, unless its action is so unjust, arbitrary and discriminatory as to shock the conscience as violative of all right, decency and fair play.
The decision made by the learned justice at Special Term, which requires the board to print the names in rotation in different election districts, not only finds no warrant in law, but would introduce great additional trouble and confusion in our already complicated system of elections in the printing and distribution of the ballots and in the counting.and in the canvassing of the votes, and in each election district there would be the same, discrimination of some one being first and some one being last as now exists.
The conclusions drawn by zealous counsel from their arrangement of recent election figures are to a considerable extent theoretical and without facts to support them. Wherever there is an active contest, with the necessary publicity incident thereto, the candidates low in the lists have no difficulty in being elected, but, with the large number to be chosen and the consequent indifference of the public and ignorance- of *588the personality of said candidates, the electors may often decline to vote and so the discrepancies in the number of ballots may be accounted for. To substitute for this failure to vote an arbitrary arrangement changing the order in the several election districts in an attempt to average up ignorance and indifference seems a fanciful and far-fetched way to bring about an intelligent election of the best men for public officers. Any scheme of arrangement can be criticised as arbitrary and discriminatory when the mind is fastened upon the one proposition that position on the ballot is the important tiling. But what the law provides is that the ballot shall furnish to each elector an opportunity to express his choice and if all the names are printed in the same style under the same appropriate headings each individual is given a fair and equal opportunity to express his own choice and no constitutional provision against disfranchisement is violated. Discrepancies in totals and failure to vote are attributable to ignorance, indifference and perhaps deliberation rather than to an arbitrary, discriminatory unfair ballot.
The order appealed from should be reversed and the motion for a peremptory writ of mandamus 'denied, but without costs'.
Laughlin, Page and Dowling, JJ., concurred; Shearn, J., dissented.