(dissenting). I regret that I cannot agree with my associated in the decision about to be made and the matter is so important that I feel I should state my views.
We must remember that the people — the electors — are the source of all power over matters dealing with the selection and election of their public servants. They determine what offices shall be filled, who shall be nominated for them and when and also for whom they shall have the opportunity and right to vote. They act through Constitution and statute.
The nomination of Mr. Wiltse for County Judge has been accomplished in strict conformity with statute and no one asserts the contrary in this proceeding. He is therefore legally entitled to his place upon the ballot for that office. To prevent the electors of Jefferson County from voting for him for County Judge on November 6th requires legislation and we as a court have not been granted the power to legislate, under our constitutional concept of three co-ordinate branches of government.
The people-electors, after a political struggle, have determined that no one in this State may be elected District Attorney of a county or a County Judge, as a candidate of a political party unless the members of that party first select him as their nominee by their votes cast in a primary election. Pursuant thereto Mr. Wiltse was selected in the primary of the Republican party (and it is only with the primary of that party with which we need concern ourselves) to run for District Attorney, to succeed himself, on the Republican ticket. In the same manner Judge Phillips was selected in the primary of the Republican party to run for election as County Judge but died subsequent to September 10th.
I note that in the dissenting opinion below and in the prevailing opinion here it is mentioned that Mr. Wiltse was nomi*327noted for District Attorney by the Republican, Democratic and Liberal parties. That was a fortuitous circumstance which should have no weight in our decision. It would have weight, of course, if we were making a decision applicable only when one of the candidates involved was nominated by three parties, but such is not the case. On the contrary we are deciding, for instance, that if the Republican party were to nominate a man in the city of New York for President of the City Council, no other party could nominate him for member of the city council since each office must be filled separately at the general election and one man may not occupy both offices. This is but one example, selected at random, of what may occur under the decision about to be made.
Considerable reliance is being placed upon the case of Matter of Lindgren (232 N. Y. 59, 61), where a writ of mandamus was sought to compel the Board of Elections to place upon the official ballot the names of two men as candidates for Mayor and for President of the Board of Aldermen of the City of New York while they were, to use the words of our opinion, ‘ ‘ residing at Sing Sing Prison, Ossining, New York ” as a result of convictions for felonies. Mandamus was refused by the Appellate Division as a matter of discretion. (198 App. Div. 319, 322.) It seems difficult to see that the decision in that case could be controlling in any way here, and indeed it was not referred to in the prevailing or dissenting opinions below. The rationale of the decision in the Lindgren case may be found in two paragraphs of the opinion and we can have no quarrel with what was actually determined there for it is ancient law that one is not entitled to a writ of mandamus unless he can show a clear legal right, and that, in the absence of such a showing, the court may properly deny relief as a matter of discretion. (People ex rel. Lunney v. Campbell, 72 N. Y. 496, 499; Matter of Dederick, 77 N. Y. 595; Matter of Black v. O’Brien, 264 N. Y. 272.) That was all we decided in Matter of Lindgren, for we did not affirm the order below but dismissed the appeal. These are the two paragraphs on pages 65 and 66:
“ How can a man who has been deprived of all his civil rights and all authority and powers comply with these provisions of the Election Law? In view of the development of our election laws, of the many details covered by it and the public expense involved, *328it surely cannot be contemplated that a prison convict can be a nominee when he cannot hold the office if elected. It is reasonable to suppose that if persons participating in the nomination at the primary or by independent nomination must be those qualified to vote on election day, the nominee should be one qualified to hold office if elected. * * *
“ Even if some may disagree with me in my views of this matter, yet we are all agreed that when it appeared to the Special Term or the Appellate Division that the two nominees were incarcerated in a state prison for a felony and that their terms extended beyond election day, these courts in the exercise of discretion could deny the application for a writ of mandamus compelling the board of elections to place their names upon the official ballot.” (Emphasis supplied.)
Whatever question of discretion there is in the instant case was resolved by the Appellate Division in favor of Wiltse, just as was done in Matter of Lindgren (supra).
Even in the Lindgren case the court was careful to point out that those who wished to write in the name of the proposed candidatés were not disfranchised. The voters had the right to vote for such candidates but the public officials would not be compelled to operate expensive election machinery in their favor and for their benefit. Under the proposed decision here, even those are disfranchised who wish to write in the name of this thoroughly honorable citizen, the present District Attorney of the county, and thus vote for him as County Judge.
As a part and consequent of the statutory provisions affecting primaries, the people, through the Legislature, enacted that if the one selected in the primary died before the general election, the County Committee of the party which had nominated him should select a substitute. That was accomplished here strictly in accordance with the statute. When Judge Phillips died, Mr. Wiltse was selected in his place by the County Committee to run for election as County Judge. Mr. Wiltse as we have seen, had already been selected in the primaries by the Republican party to run for District Attorney and it is true, as we were told on argument, that he offered to, and still wishes to, withdraw as a candidate for that office but no statute required him to do so. All that is provided by statute is that such candidate 11 may ” decline nomination. That is a matter solely for the consideration *329of the candidate. The people-electors have the right by their votes to select in the primaries the same man to run for two offices, compatible or incompatible, and there is no statute forbidding it. As soon as we realize that, it is apparent that we must affirm here. The electors may also elect the same man to two offices. If the offices are incompatible, the one elected may not hold both. By taking his oath of office as to one, he leaves the other vacant. The office abandoned is not then filled by the runner-up at the general election but by the executive — the Governor — as the people-electors have also duly provided. There is no ineligibility for either office to which the individual has been elected. The statute merely provides that he may not hold both. The last paragraph of the opinion of O’Brien, J. (People v. Purdy, 154 N. Y. 439, 443), indicates that our court had clearly in mind that only those not under legal disqualification when voted for could be selected by the voters and that that was the rule to be applied. Since there is no legal disqualification here of Mr. Wiltse from holding the office of County Judge, the rule laid down by our court in the Purdy case, as the better rule, has no application here. This is made abundantly clear by the concluding paragraph of our opinion in the Purdy case:
“ The statute, we think' does not contemplate that a person who is disqualified to hold the office may, nevertheless, be lawfully elected upon the chance that subsequently he may, by his own act, or by the happening of some event, remove the disqualification, and thus become entitled to fill it. The better rule is that the electors, in making the choice, must be confined to the selection of such persons only as are not then under any legal disqualification to . exercise its powers and perform its duties. The electors can then know that when the choice is made and legally declared the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will, as thus exnressed, from becoming effective.”
The care with which the statute has been worded shows clearly how inapposite is the Purdy case. (People v. Purdy, 154 N. Y. 439, supra.) In that case we properly held that Purdy was disqualified in his capacity of a candidate for election as well as to the holding of the office of supervisor of a town because the *330statute provided that “ no trustee of a school district shall be eligible to the office of supervisor ” of any town in this State. (P. 441; emphasis supplied.)
On the other hand, as indicating that we construed the legislative intent in People v. Purdy (supra), solely because of the statutory words, we later decided squarely to the contrary of appellant’s contention here in People ex rel. Miller v. Mynderse (140 App. Div. 789, 791, affd. 201 N. Y. 524). There the trustee of a village was elected president of the village on March 15th. The term of office of president was to commence on March 21st at noon. Prior thereto but after his election as president the trustee resigned his office as trustee but the outgoing president of the village refused to permit relator to enter into the office of president, claiming that he was not eligible and that his alleged election was void. Section 42 of the Village Law was entitled ‘1 Eligibility to office ’ ’ and, inter alla, provided insofar as here applicable: “ A person shall not hold two village offices at the same time except * * (Emphasis supplied.) It seems to me that Kellogg, J., used language decisively applicable here, as follows (140 App. Div. 789, 791): “ But the clause quoted does not in terms purport to relate to the capacity of being chosen, and does not refer to the choosing, but in terms is clearly to prevent the same person from holding two offices at the same time. It relates in terms and spirit to the situation of the. officer, not on election day but on the day when he enters into the performance of his duties. If on that day he is holding another office, qualifying for the second office presents an apparent violation of the statute and probably ipso facto vacates the position formerly held by him, or prevents him from legally qualifying for the new position until he has abandoned the old. ’ ’ Smith, P. J., dissented in a brief opinion because he was unable to distinguish the case from People v. Purdy. We affirmed without a dissenting vote. That case is controlling here and should end all question of the eligibility of Mr. Wiltse.to run for County Judge.
The Attorney-General of our State as late as 1933 (in 48 N. Y. St. Dept. Rep. 192), in an informal opinion to the Commission of Elections, Goshen, Orange County, wrote that one who was nominated for alderman in the primaries of both the Republican and the Democratic parties might thereafter be designated *331by the Republican city committee of Middletown for the office of Mayor, following the death of one who had been nominated for Mayor in the Republican primaries, in default of some special charter provision of the city of Middletown preventing his being a candidate for both offices at the same time. This is in accord with the result reached in another jurisdiction in which the question has arisen. Thus, in Misch v. Russell (136 Ill. 22, 31 [1891]) the court said: “ We know of no rule of law which prohibits a man’s becoming a candidate or being voted for at the same election for two incompatible offices, but undoubtedly, if he should be elected to both, he would be incapable of discharging the duties of both offices, and would be compelled to elect which to accept. If, for example, a man should be voted for at the same election for county judge and sheriff, no one, we presume, would insist that the votes cast for him by one portion of the voters for one office would be invalid because another portion of the voters saw fit to vote for him for the other. If then different voters may vote for him at the same election for different and incompatible offices, we see no reason why a particular voter, if he chooses so to do, may not vote for him for both offices at the same time. Such manner of voting creates no uncertainty or ambiguity in his ballot, the intention to vote in that way being capable of just as clear and certain an expression as would be an intention to vote for different candidates for the two offices.”
In conclusion I may say that the case was argued before us from the standpoint of the rights of candidates seeking public office. I think that is the wrong approach. The only questions which should be considered are the rights of the electors. Mr.* Wiltse is lawfully on the ballot as a candidate for County Judge and, in my judgment, no court has the power to write additional legislative provisions so as to deprive an elector of the right to vote for a party candidate, lawfully nominated, for any office the elector desires. That is disfranchisement pro tanto of the party members and if it is to be done should be done through the Legislature. For these reasons I vote to affirm.
Lewis, Fuld and Froessel, JJ., concur with Dye, J.; Conway, J., dissents in opinion; Loughran, Ch. J., and Desmond, J., taking no part.
Order reversed, etc.