This controversy has to do with the proper order of printing the names of candidates upon the general election ballots where several individuals are to be elected to the same general office. In the case at bar the office is justice of the City Court of the City of New York, there being six terms to fill.
Section 331 of the Election Law provides generally for *589the printing of an official ballot, and subdivision 3, having special reference to ballots for general officers, provides, among other things, as follows:
“ 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 comer 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 shall be printed on one. line the title of the office. On the same line, 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, following its usual custom, is arranging to print the names of all candidates for the office of justice of the City Court of the City of New York, for full terms in one section, the names of the Republican candidates having precedence and the order of printing the several names being determined by lot. The law prescribes no method for determining the order of printing names upon an official ballot, except among political parties, but the practice of the board of elections is to adopt the order in which the names appear upon the primary ballot, which order is, by section 58 of the Election Law (added by Laws of 1911, chap. 891, as amd. by Laws of 1914, chap. 244), required to be determined by lot.
Where several candidates are to be voted for in a group, it appears that in the elections held with this form of ballot, *590evidently as a result of ignorance or indifference, a large percentage of voters, sometimes as high as thirty per cent, fail to vote for more than one candidate and in each party there is a shrinkage of approximately twenty per cent in the vote of each candidate from the first place to each succeeding lower place on the ballot. While there is no competent proof that the variance in the vote is due to the relative position of the names on the ballot, the figures and tabulations submitted strongly indicate that such is the case. The advantage of the first place in a group of four to six candidates is estimated by men experienced in the working of the Election Law to amount to fully 20,000 votes in a judiciary election in the counties of New York and Bronx. This situation has led to sharp criticism of the method of determining the order of printing the names by lot as one calculated to make the election of judges a sort of lottery, and in this proceeding the method and the group form of ballot are assailed as illegal.
It' is contended first by the relator that each justice of the City Court of the City of New York holds a separate office and, as the Election Law (§ 331, subd. 3, as amd. supra) provides that “ the names of all candidates for any one office shall be printed in a separate section,” each vacancy should have a separate section on the ballot. In other words, nominations should be made not for the office of justice of the City Court but to ■ fill a specified and particular vacancy. We agree with the learned justice at Special Term that this claim is unsound and would work an illegal discrimination against voters. It would not permit one to vote, for two or more candidates whose names were printed in one section but would compel the voter to pick a single candidate from each pair or set. Further, it would lead to the election of judges who failed to receive the greatest number of votes. It is quite true, as was held in People ex rel. Hart v. Goodrich (180 N. Y. 522) that each justice holds a separate office in the sense that the title is distinct and no justice “ has any concern to defend the title of the other,” but as used in the Election Law all candidates for the office of justice of the City Court are candidates for one and the same office. That such was the intention is made manifest *591by the requirement “ 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.” This would be meaningless and superfluous if each vacancy were to have a separate section on the ballot on the theory that each was a separate office.
It is next contended by the relator that the determination of the printing order of the names of candidates by lot or chance is arbitrary, unfair and capricious, and unnecessarily so; that consequently the board of elections has not performed its duty of determining in a fair and lawful way the order of printing names and may be compelled so to do. The learned Special Term has not only adopted this view but has gone further and prescribed the method to be adopted by the board of elections, namely, by requiring the printing of the names of all the candidates in rotation “ so that each candidate for an office will occupy each position upon the ballot held by candidates of the party nominating him an equal number of times so far as practicable.” Whether the ingenious system worked out is the “ ideal system ” or not, it is quite beyond the power of the court to prescribe a method to be followed by the board of elections when the determination of the matter is committed to the board by the express terms of the statute. There is no similarity whatever between this case and Matter of Duell v. Board of Elections (205 N. Y. 79) or Matter of Vass v. Britt (209 id. 557), when the facts are closely examined. The merits of various plans, such as the alphabetical arrangement, the lot-drawing scheme or this rotation plan are in the first instance for the Legislature or the bodies to whom it has delegated its power. The court may determine the legality of any method adopted, but for the court to prescribe the “ ideal plan ” is, as it seems to me, the extreme of judicial legislation.
Nevertheless, if the board of elections will not voluntarily determine in a fair way, free from arbitrariness and unnecessary prejudice to the rights of candidates, the order of printing names on the ballot, it is of course competent for the court to compel it to do so, and one method of doing so is to require the board to desist from a method that is illegal.
While an election is held not for the benefit of candidates *592but for the public benefit, it is also true that candidates have rights and interests that are entitled to protection. It has been held by the Court of Appeals in Matter of Callahan (200 N. Y. 59) that legislation, to be valid, must not discriminate in favor of one set of candidates against another. The board of elections cannot do what the Legislature could not authorize. Yet the proof shows that this disposal of places by lot and maintaining the same position on all the ballots in the several districts tends to work a rank distinction between candidates, so great as to be often determinative of an election. If it were necessary to have certain lucky candidates monopolize the same advantageous position on all the ballots, it would be fair and lawful, and within the power of the Legislature to provide that the order be determined by lot, but it is not shown to be necessary, and, therefore, the determination of the matter by chance, with its resulting unfair discrimination, is merely arbitrary and capricious, and is not a compliance with the statute.
It is quite true that the Court of Appeals said in Matter of Hopper v. Britt (203 N. Y. 144), dealing with the old party column ballot, that some party must have the first place and assumed that the provision of law giving the first party column to the party which polled the highest number of votes for Governor at the last preceding election for such officer was valid. But we are not dealing-with a party column ballot and there was no showing of unfair discrimination between candidates in the case referred to. The practice .of giving preference in position to the party which polled the highest number of votes for Governor at the last preceding election for such officer has been so long acquiesced in that the court should hesitate to declare unconstitutional the legislative act sanctioning it, especially where no serious prejudice or discrimination are claimed to result therefrom.
The presiding justice states, and indeed seems to .base his conclusion upon the assumption, that where there are several names one must necessarily be first, and, this being so, the method of determining precedence by lot is as fair as any other system, even though prejudice and discrimination result. Of course where there are several names one has to be first, but it does not follow at all that the same name has *593to be first upon all the ballots and in every election district. That is the whole point of the case. There is no necessity for this shown, nor can any be suggested. It saves some trouble on the part of the board of elections, and perhaps some expense, to determine the matter by lot or chance, but this does not. seem to me to be a very persuasive reason for permitting the choice of judges to be largely influenced, if not actually determined, by a lottery, no matter how honestly and fairly the lottery is conducted. The prejudice and discrimination resulting from the present method clearly exist, the method is unnecessary, and it is, therefore, illegal.
It follows that the order appealed from should be modified by striking out the requirement that the board of elections adopt any particular plan prescribed by the court, and, as modified, affirmed, without costs.
Order reversed and motion for peremptory writ of mandamus denied, without costs. Order to be settled on notice.