Dye, J.
At the 1951 fall primary the Republican, Democratic and Liberal parties in Jefferson County nominated Milton A. Wiltse, Esq., as their candidate for the office of District Attorney. At the same primary the Republican and Democratic parties also nominated Hon. Crandall F. Phillips as their candidate for the office of County Judge of Jefferson County. Thereafter and on October 16, 1951, Judge Phillips died. On October 23, 1951, the Republican County Committee duly met to fill the vacancy thus created (Election Law, § 140; County Committee rules as filed with the Secretary of State, October 5, 1947). The names of Milton A. Wiltse and Luke A. Burns, the petitioner herein, were presented for consideration. A vote was taken and Mr. Wiltse won by vote of 133 to 51. Prior to the filing of the certificate of nomination, the defeated aspirant Burns initiated the within proceeding by the filing of a petition in which he sought to permanently restrain the officers of the Republican County Committee from filing a certificate of nomination of the said Wiltse as Republican candidate for the office of County Judge of Jefferson County, and to restrain the Commissioners of Election of Jefferson County from receiving and filing the said certificate and for an order directing the Republican County Committee to reconvene and nominate some person who “ if elected, may qualify as such county judge and who is a proper person for whom votes may be cast at the said election for the said office in accordance with the spirit and intent of the election law ”.
We are agreed that the petitioner, having been considered at the meeting of the County Committee to fill the vacancy, is properly before the court as an aggrieved party even though he did not file written objections (Election Law, § 145), for indeed he could not as the certificate of nomination had not as yet been filed (Election Law, § 140), and even though everyone concedes the action taken by the committee was done in good faith, free from fraud and irregularity (Election Law, § 330. subd. 2).
[323]*323This leaves for review the sole question of whether or not the said Wiltse may also at this time be nominated as a candidate for the office of County Judge of Jefferson County, or to state it in the abstract, whether a person otherwise qualified to hold either one of the two offices is entitled to have his name on the same ballot for both offices.
We find no specific constitutional or statutory authority that prohibits or permits the nomination of the same person as a candidate for the office of District Attorney and County Judge at the same election. Nonetheless, we are convinced that the spirit and intent of the Election Law forbids such a dual nomination particularly when, as here, the candidate may not, if elected, take and hold both offices (County Law, § 411).
The candidate Wiltse, by force of circumstances is in a difficult position. He may not relieve himself of his obligation to run for the office of District Attorney. Mere saying that he does not intend to qualify for such office, if elected, is no solution. His name is on the ballot as the candidate of all political parties for such office. It may not now be removed as the time for declination fixed by the Election Law expired on September 10, 1951. Nothing may now be done about it and he must run (Election Law, § 314, subd. 14; cf. Matter of McDonald v. Heffernan, 196 Misc. 465, affd. 275 App. Div. 1054, affd. 300 N. Y. 488). Being without opposition except for possible write-ins on election day, his election to that office seems a foregone conclusion.
Eligibility at the time of election as distinguished from qualification to take and hold office is not a new problem. It has been before us in a situation where certain individuals then confined in State prison with loss of civil rights, sought to have their names appear on the ballot as candidates for public office. Even though there was nothing in the Election Law prohibiting such nomination, we nonetheless held that such persons were ineligible on the general principle that an eligible nominee should be one qualified to take and hold office if elected, for, in the words of Crane, J., it does “ seem reasonable to suppose that the election machinery, which is run at such a great expense to the public, is for the purpose of doing a useful and not a useless thing.” (Matter of Lindgren, 232 N. Y. 59, 64; emphasis supplied.) In other words, an election under such [324]*324circumstances would be a futility. The principle thus enunciated is particularly apt in the'present controversy. Wiltse as a dual candidate, may not legally qualify for both offices — one or the other must be abandoned but which one would depend upon the whim and option of the candidate without reference to the will of the people who voted for him. The desirability of applying such principle has been recognized in this court for a long time, although not heretofore decisive of a given case. We refer to People v. Purdy (154 N. Y. 439) which involves section 50 of chapter 569 of the Laws of 1890 (now with slight amendments in language, without change in substance, Town Law, § 23). The pertinent provision then being that “no * * * trustee of a school district * * * shall be eligible to the office of supervisor of any town ”. The defendant Purdy while a school trustee was nominated for supervisor and was elected. His right to the office was challenged and on appeal we construed the statute as relating to eligibility to run for election rather than a disqualification for the holding of the office, as the latter impediment might be removed by an act of the candidate or the happening of an event, before actually talcing office. The words of Denis O’Brien, then an Associate Judge, spoken for the court are as pertinent now as they were then. We may read in the opinion (pp. 442-443): “ A public statute relating to the qualifications of public officers should never be so construed as to * * * promote a public mischief or to render the action of the voters at the election abortive. It should * * * be given such a construction as to enable the electors to act intelligently, and to accomplish * * * the purpose that they may have in view. If it be held that the disqualification * * * applies only to the holding of the office, and not to the capacity of the candidate for election, then the electors can never know when voting * * * for the office * * * whether they will succeed in filling the office or not Though the action of the electors may be unanimous, the result must depend upon the future action of the candidate himself. Unless he resigns * * * there has practically been no election, and the office is left vacant, though the people intended to fill it. The vote in such a case may be said to be conditional upon the resignation of another office by the candidate voted for. He may refuse or fail to resign, and then the action of the voters is nugatory. * * *
[325]*325“ The statute * * 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 * * * remove the disqualification, and thus become entitled to fill it. The better rule is that the electors * * * must be confined to the selection of such persons only as are not then under any legal disqualification to exercise its powers * * * .
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Dye, J.
At the 1951 fall primary the Republican, Democratic and Liberal parties in Jefferson County nominated Milton A. Wiltse, Esq., as their candidate for the office of District Attorney. At the same primary the Republican and Democratic parties also nominated Hon. Crandall F. Phillips as their candidate for the office of County Judge of Jefferson County. Thereafter and on October 16, 1951, Judge Phillips died. On October 23, 1951, the Republican County Committee duly met to fill the vacancy thus created (Election Law, § 140; County Committee rules as filed with the Secretary of State, October 5, 1947). The names of Milton A. Wiltse and Luke A. Burns, the petitioner herein, were presented for consideration. A vote was taken and Mr. Wiltse won by vote of 133 to 51. Prior to the filing of the certificate of nomination, the defeated aspirant Burns initiated the within proceeding by the filing of a petition in which he sought to permanently restrain the officers of the Republican County Committee from filing a certificate of nomination of the said Wiltse as Republican candidate for the office of County Judge of Jefferson County, and to restrain the Commissioners of Election of Jefferson County from receiving and filing the said certificate and for an order directing the Republican County Committee to reconvene and nominate some person who “ if elected, may qualify as such county judge and who is a proper person for whom votes may be cast at the said election for the said office in accordance with the spirit and intent of the election law ”.
We are agreed that the petitioner, having been considered at the meeting of the County Committee to fill the vacancy, is properly before the court as an aggrieved party even though he did not file written objections (Election Law, § 145), for indeed he could not as the certificate of nomination had not as yet been filed (Election Law, § 140), and even though everyone concedes the action taken by the committee was done in good faith, free from fraud and irregularity (Election Law, § 330. subd. 2).
[323]*323This leaves for review the sole question of whether or not the said Wiltse may also at this time be nominated as a candidate for the office of County Judge of Jefferson County, or to state it in the abstract, whether a person otherwise qualified to hold either one of the two offices is entitled to have his name on the same ballot for both offices.
We find no specific constitutional or statutory authority that prohibits or permits the nomination of the same person as a candidate for the office of District Attorney and County Judge at the same election. Nonetheless, we are convinced that the spirit and intent of the Election Law forbids such a dual nomination particularly when, as here, the candidate may not, if elected, take and hold both offices (County Law, § 411).
The candidate Wiltse, by force of circumstances is in a difficult position. He may not relieve himself of his obligation to run for the office of District Attorney. Mere saying that he does not intend to qualify for such office, if elected, is no solution. His name is on the ballot as the candidate of all political parties for such office. It may not now be removed as the time for declination fixed by the Election Law expired on September 10, 1951. Nothing may now be done about it and he must run (Election Law, § 314, subd. 14; cf. Matter of McDonald v. Heffernan, 196 Misc. 465, affd. 275 App. Div. 1054, affd. 300 N. Y. 488). Being without opposition except for possible write-ins on election day, his election to that office seems a foregone conclusion.
Eligibility at the time of election as distinguished from qualification to take and hold office is not a new problem. It has been before us in a situation where certain individuals then confined in State prison with loss of civil rights, sought to have their names appear on the ballot as candidates for public office. Even though there was nothing in the Election Law prohibiting such nomination, we nonetheless held that such persons were ineligible on the general principle that an eligible nominee should be one qualified to take and hold office if elected, for, in the words of Crane, J., it does “ seem reasonable to suppose that the election machinery, which is run at such a great expense to the public, is for the purpose of doing a useful and not a useless thing.” (Matter of Lindgren, 232 N. Y. 59, 64; emphasis supplied.) In other words, an election under such [324]*324circumstances would be a futility. The principle thus enunciated is particularly apt in the'present controversy. Wiltse as a dual candidate, may not legally qualify for both offices — one or the other must be abandoned but which one would depend upon the whim and option of the candidate without reference to the will of the people who voted for him. The desirability of applying such principle has been recognized in this court for a long time, although not heretofore decisive of a given case. We refer to People v. Purdy (154 N. Y. 439) which involves section 50 of chapter 569 of the Laws of 1890 (now with slight amendments in language, without change in substance, Town Law, § 23). The pertinent provision then being that “no * * * trustee of a school district * * * shall be eligible to the office of supervisor of any town ”. The defendant Purdy while a school trustee was nominated for supervisor and was elected. His right to the office was challenged and on appeal we construed the statute as relating to eligibility to run for election rather than a disqualification for the holding of the office, as the latter impediment might be removed by an act of the candidate or the happening of an event, before actually talcing office. The words of Denis O’Brien, then an Associate Judge, spoken for the court are as pertinent now as they were then. We may read in the opinion (pp. 442-443): “ A public statute relating to the qualifications of public officers should never be so construed as to * * * promote a public mischief or to render the action of the voters at the election abortive. It should * * * be given such a construction as to enable the electors to act intelligently, and to accomplish * * * the purpose that they may have in view. If it be held that the disqualification * * * applies only to the holding of the office, and not to the capacity of the candidate for election, then the electors can never know when voting * * * for the office * * * whether they will succeed in filling the office or not Though the action of the electors may be unanimous, the result must depend upon the future action of the candidate himself. Unless he resigns * * * there has practically been no election, and the office is left vacant, though the people intended to fill it. The vote in such a case may be said to be conditional upon the resignation of another office by the candidate voted for. He may refuse or fail to resign, and then the action of the voters is nugatory. * * *
[325]*325“ The statute * * 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 * * * remove the disqualification, and thus become entitled to fill it. The better rule is that the electors * * * must be confined to the selection of such persons only as are not then under any legal disqualification to exercise its powers * * * . 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 * * * from becoming effective.”
Section 411 of the County Law, explicitly forbids a County Judge from holding another elective county office. This, we believe, renders a person ineligible as a candidate for County Judge if at the same election his name appears on the ballot as the validly nominated candidate for another county office inasmuch as the statute prevents his qualifying for both offices. To hold otherwise militates against a fundamental principle attendant upon the exercise of the election franchise, namely, the right of every citizen to vote “ for all officers that now are or hereafter may be elective by the people (N. Y. Const., art. II, § 1; emphasis supplied.)
When the People adopted this constitutional provision to assure the full and effective exercise of the elective franchise we believe they intended that “ officers * * elective by the people ” were those who at the time of election could, if elected, take and hold the office. In other words, that in the exercise of the election franchise the electors placed a limitation on the availability of candidates for public office to those persons who, if elected, could legally qualify to take and hold it (Matter of Lindgren, supra; People v. Purdy, supra; Abrahams’ New York Election Law, p. 181; Gassman’s .Election Law, § 85, p. 355). Prohibition of a dual nomination is not a denial of the right of the electors to nominate persons of their own selection nor does it constitute interference with the functioning of the Election Law respecting nominations. Such a ruling is not disfranchisement yet that is exactly what would happen whenever electors vote for a candidate who may not legally qualify, if elected, to take and hold both offices to which he had been nominated (County Law, § 411). An elec[326]*326tian under such circumstances would be illusory and sham if not an. actual fraud upon the electorate and should not be permitted (cf. Matter of Ryan, 172 Misc. 105, affd. 257 App. Div. 1068).
The order of the Appellate Division should be reversed and the order of Special Term modified by directing that the meeting of the County Committee therein directed to be reconvened on October 29, 1951, be held at or before 10:00 a.m. on November 5, 1951, and as so modified, affirmed.