I agree with the opinion of the presiding justice that an interpretation of section 104 of the election law which would limit the right of voters to vote only for offices which may be named on the official ballot, or only for candidates who may have been put in nomination by the modes prescribed by that law, would render this provision of the section unconstitutional .and void. The section is general, and applicable to elections for all ■officers. As to two classes of public offices, it seems to me too clear *761for debate that the legislature cannot deny the voter the rights to vote, or add to the qualifications prescribed for candidates, dependent on the action of election officials or nominating conventions. By the federal constitution (section 2, art. 1):
“(2) No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”
By section 4 of the same article:
“(1) The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators.”
Congress has acted under this authority, and prescribed the time of holding elections for representatives. How can the state deny the right of any qualified voter to vote at the time prescribed? As to the qualifications of representatives, though the constitutional provisions are wholly in the negative, still they are plainly meant to prescribe the only conditions of eligibility, and are exclusive. How can the state prescribe that the candidates must have been nominated by a certain number of voters for an appointed period before the election? Such provisions would not relate merely to the manner of holding the election, but plainly be limitations on the eligibility of the candidate. He may not have moved into the state, and become an inhabitant thereof, until the day before election, and yet he would be constitutionally eligible for the office. Those considerations also apply to those offices which the constitution of the state ordains shall be filled by election. At an early period, under our present constitution, the question arose whether the election of a justice of the supreme court to fill a vacancy occurring after the notice given by the secretary of state of the offices to be filled at the approaching election was valid. It was held that the election was valid, notwithstanding that no notice thereof was given by the secretary of state. People v. Cowles, 13 N. Y. 350. The authority of this case has never been questioned. In the constitutional convention of 1867, it was acknowledged as a correct exposition of the law; and, to avoid any difficulty from lack of sufficient notice to the voters, the constitution was amended so that vacancies in the judicial offices created by it are directed to be filled only at elections happening three months after the occurrence of the vacancy. But as to the other elective offices of the constitution the old rule remains in force. As to offices not constitutional, but created by the legislature, the legislature may prescribe qualifications for the incumbents of such offices. People v. Platt, 117 N. Y. 159, 22 N. E. 937. We assume, however, that as to such offices the qualifications must bear some relation to the duties of the office, and be not merely arbitrary. The office here in dispute is a local office. By the constitution, it must be filled by election or appointment, as the legislature shall direct. Under this authority, the legislature determined that the office should *762be elective, and on that determination “the office fell within the scope and terms of the constitutional provisions applicable to elections by the people.” In re Gage, 141 N. Y. 112, 35 N. E. 1094. A scheme that would permit the town election officers or nominating conventions to determine whether the office should be filled or not would be neither providing for an election nor for an appointment, and it is only one of these two methods that the legislature can adopt. The order appealed from should be affirmed, with $10 costs.