The school board election should be invalidated and a new one ordered. A serious question is raised by the board ordering respondent’s name off the ballot late in *403the evening of May 1, only hours before the election was to take place. When she filed her nominating petitions on April 12, the board accepted them and she was placed on the ballot as a qualified candidate. This obviously was an error of law by the board. A vigorous campaign was conducted by the respondent and she attracted the support of many voters in the city school district. Had it not been for the candidacy of respondent, other eligible residents of the district may have run for the office or, in any event, supported the candidacy of another person had the respondent not qualified as a candidate. In this respect the votes of the supporters of respondent, and indeed her own vote, presumably for herself, were nullified by the error of the board. The case of People ex rel. Hirsh v. Wood (148 N. Y. 142) treated the question of mistakes by election officers. “ We can conceive of no principle which permits .the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them.” (pp. 146-147.)
The Board of Education does not deny knowledge of the age of respondent at the time she filed her petitions. A good deal of newspaper publicity attended her candidacy as well as at least one other in the capital district area. The failure of the board to reckon with the age qualification of respondent at the time she filed the petition, or very soon thereafter, induced the change of position of the respondent and her supporters who, on the eve of .the election, would be deprived of their popular will by the unilateral action of the board. The board’s reliance upon an opinion of the Attorney-General does not change the effect of the board’s action since that opinion merely held .that any person under the age of 21 could not be a member of a Board of Education. This permitted of .the fair and more logical approach of keeping respondent’s name on the ballot and after the election raising the qualification issue, if she won the election. A quo warranto proceeding would be .the proper remedy subsequent to the orderly elective process and, if removed, the candidate receiving .the next highest votes would be entitled to the position.
Another consideration is one of due process to respondent herself. Notwithstanding the concession of her age, the acceptance of her candidacy on April 12 demonstrated that the Twenty-Sixth Amendment had created a real issue as to the concomitant lowering of the age to hold public office. Although *404this was clearly a question of law, the respondent should have had an opportunity to present her case even if it resulted in inducing the board to leave her name on the ballot and deal with the question of age qualification subsequent to the election. To say now that it is clear that .there has been no denial of due process is to negate the error by the board and the existence of a real issue as to her eligibility at that time. In any event, the unilateral and late action by the board clearly affected an apparent right that existed and should have been preceded by notice and an opportunity to be heard. An opportunity to be heard is the fundamental requisite of due process of law (Goldberg v. Kelly, 397 U. S. 254, 268).
The judgment should be modified to invalidate the election or order a new election.
Gbeenblott, J. P., Sweeney and Simons, JJ., concur in Per Curiam opinion; Kane, J., dissents and votes to modify in a separate opinion; Cooke, J., not voting.
Judgment reversed, on the law and the facts, and petition dismissed, without costs.