The opinion
Hogan, J.
(dissenting). . Article 2, section 4, of the Constitution requires the legislature to enact laws “ for ascertaining
by proper proofs
the citizens who shall be entitled to the right of suffrage * * * and for the registration of voters * *
In
Matter of Fraser
v.
Brown
( 203 N. Y. 142 ) this court construed the term “proper proofs,” Judge Vann writing as follows:
“‘Proper proofs’may be required by the legislature and, within the limits of reason, the nature of the proof is under its control,- except that proof involving- personal appearance cannot be required on the first day.
Proof by affidavit, or by the testimony of a third person, may be required by statute
* *
On behalf of the appellants it was argued that the requirements of the statute under consideration are without the limits of reason in that the affidavit of two elect
*519
ors, residents of the election district in which the person to be registered resides, should be furnished. Assuming, for the sake of argument, such interpretation of the statute, and that such requirement is unreasonable, it was within the province of the legislature to require proof by the affidavit of a person whose name is sought to be placed upon the registration list showing that the person sought to be thus registered was a qualified elector, or to require like proofs by the testimony of a third person. By eliminating the provision criticised in the prevailing opinion, the statute can be read:
“ * * and also at said first meeting, they shall place on the register the names of all persons proven to the satisfaction of such inspectors by the affidavits of such persons to be then or thereafter entitled to vote at the election for which such registration is made * *
The provision quoted above does not conflict with any provision of the Constitution, and is capable of separation from the remaining provision condemned by the prevailing opinion; therefore, it should be given force and effect. The retention of such provision would, in my opinion, render the statute more harmonious by providing the nature of the proof which should be furnished, rather than to permit inspectors to insist upon proofs satisfactory to them which may vary throughout the districts of the state as the whims of individuals may determine. For that reason I dissent from the conclusion of a majority of the members of the court.
Werner, Hiscock, Chase and Collin, JJ., concur with Miller, J.; Cardozo, J., concurs in the result, but is of the opinion that the provision requiring the affidavit of the voter is separable from the provision requiring the affidavit of two qualified electors and that the former provision may. be sustained; Hogan, J., reads dissenting opinion.
Orders reversed, etc.