Matter of Higbyv.Mahoney

Court of Appeals of the State of New YorkSep 4, 1979
48 N.Y.2d 15 (N.Y. 1979)
48 N.Y.2d 15396 N.E.2d 183421 N.Y.S.2d 35

Submitted August 29, 1979

Decided September 4, 1979

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, FRANK R. BAYGER, J.

Richard T. Sullivan and Arthur A. Russ for appellant. T.J. Szymanski, County Attorney (Roger D. Avent of counsel), for respondents.


By this proceeding petitioner seeks to have validated a designating petition filed with the Erie County Board of Elections for the purpose of having his name placed on the official Republican Party primary ballot and voting machines as a candidate for nomination by that party for the office of Councilman in the Town of Orchard Park. The board sustained objections filed against the designating petition for failure of the subscribing witnesses to set forth the assembly district in which they were resident as required by subdivision 1 of section 6-132 of the Election Law, and rejected the petition. Supreme Court, Erie County, granted an order in this proceeding directing the board to validate the petition and place petitioner's name on the ballot and voting machines, but the Appellate Division ( 71 A.D.2d 1047) reversed the lower court's order and dismissed the validation proceeding. It is undisputed that the Town of Orchard Park is wholly within a single assembly district. The claim is made that by reason of this circumstance the omission of assembly district number should not serve to invalidate the petition and that precedents to the contrary should be overturned.

The precise substantive issue tendered on this appeal has thrice been resolved against appellant's position in the last three years by this court (Matter of Rutter v Coveney, 38 N.Y.2d 993; Matter of Vari v Hayduk, 42 N.Y.2d 980; and Matter of Morris v Hayduk, 45 N.Y.2d 793). The arguments now articulated by the dissenters were those rejected in Rutter (cf. dissenting opn 38 N.Y.2d 994) and again in Vari. In Morris special emphasis was placed by the appellant on the revisions made in recodification of the Election Law. We nonetheless declined the invitation to overrule our prior decisions, concluding that no change was required by the recodification.

The doctrine of stare decisis does not, of course, demand unyielding resignation to even recent precedent. Policy considerations are inherent in the prudent, considered application of the doctrine. (People v Hobson, 39 N.Y.2d 479.) Whether it is appropriate for the courts to overturn judicial precedent must depend on several factors. Among them will be the nature of the rights and interests at stake and the extent and degree to which action may justifiably have been taken in reliance on the precedent (Matter of Eckart, 39 N.Y.2d 493, 500; People v Hobson, 39 N.Y.2d 479, 488-489, supra). In addition to such familiar considerations but apart therefrom, weight may properly be attached to the relative ease or difficulty of modification or change in the precedent. Invitations to judicial reconsideration carry more weight when addressed to constitutional issues because of the very great difficulty of effecting change by constitutional amendment. By contrast the courts show greater restraint in stepping in to undertake correction of what may be perceived as erroneous determinations with respect to questions arising under legislative enactment. In addition to the relative ease of accomplishing statutory change, this hesitancy may be grounded in either or both of two additional considerations. First, the Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand and its members are properly politically responsive to the electorate. Second, and of greater significance, under our polity of government and distribution of powers, responsibility for making the policy decisions inherent in the adoption of the original legislative provision was, by its very nature, vested in the legislative branch. As we have recently said: "Precedents involving statutory interpretation are entitled to great stability (Matter of Schinasi, 277 N.Y. 252, 265-266; see 20 Am Jur 2d, Courts, § 198). After all, in such cases courts are interpreting legislative intention and a sequential contradiction is a grossly aggrogated legislative power. Moreover, if the precedent or precedents have `misinterpreted' the legislative intention, the Legislature's competency to correct the `misinterpretation' is readily at hand." (People v Hobson, 39 N.Y.2d 479, 489, supra.)

Without conceding that the earlier case was incorrectly decided, it is noted that in any discussion of stare decisis it must be taken, arguendo, that strong arguments can be mounted to support a different result. Were the situation otherwise there would be no occasion to rely on the doctrine.

Consideration of some of the decisions of our court illustrates the principles involved. A pertinent example is found in Matter of Eckart ( 39 N.Y.2d 493, supra). In Matter of Cairo ( 29 N.Y.2d 527) our court had accepted a construction of statute (EPTL 5-3.3) which thereafter was widely criticized. Five years later in Eckart, in an indistinguishable case presenting the same issue, we followed the Cairo precedent with the observation, "[i]f there is to be a constructive change it should come from the Legislature" ( 39 N.Y.2d 493, 502). Similarly in People v Butts ( 32 N.Y.2d 946) and again in People v Cicale ( 35 N.Y.2d 661), we rejected vigorous arguments that in People v Carter ( 31 N.Y.2d 964) sections 207 and 208 of the Mental Hygiene Law had been erroneously interpreted. While it may be that in the face of continued and continuing legislative inattention or inertia the courts may properly step in to effect a change in statutory interpretation (e.g., Hall v Coburn Corp. of Amer., 26 N.Y.2d 396; followed by Moore v Metropolitan Life Ins. Co., 33 N.Y.2d 304; and then Ray v Marine Midland Grace Trust Co., 35 N.Y.2d 147), such instances are the exception rather than the rule.

It is pertinent that even where the rule of law at issue is of judicial rather than legislative origin, if change by legislative action is available, our courts are hesitant to effect recommended change. Thus in Codling v Paglia ( 32 N.Y.2d 330) we declined the invitation to substitute a rule of comparative negligence for the much criticized doctrine of contributory negligence. Subsequently the Legislature enacted the desired change (L 1975, ch 69). More recently in Baden v Staples ( 45 N.Y.2d 889) we rejected importunings to eradicate the asserted error of Seider v Roth ( 17 N.Y.2d 111; see Simpson v Loehmann, 21 N.Y.2d 305; and Donawitz v Danek, 42 N.Y.2d 138). On this subject, however, to date there has been no legislative action.

In the present instance deference to the Legislature to enact change, if indeed change there should be, is peculiarly fitting. Insistence on inclusion of the correct assembly district number itself cannot properly be classified as involving any substantial obstacle or threat to the exercise of the constitutional right of franchise. All that needs to be done to assure the unfettered access to that right is to heed the mandate of the statute as uniformly interpreted by the court — i.e., insert the correct assembly or election district number, not a very demanding task. Contrast the unavailability of any such self-help alternative in the instances where judicial relief was denied in Eckart, Cicale, Moore, Codling and Baden. There is nothing to indicate that strict compliance with the precise requirements of this statute as interpreted is not readily accomplished on the great bulk of designating petitions. It is only the careless or inadvertent failure to follow the mandate of statute and case law which gives rise to the complaints that come before us.

It is to be noted that this statute erects a rigid framework of regulation, detailing as it does throughout specific particulars. The statute itself is not "drawn in such general terms that it is evident that the legislative intention is that the courts, by their interpretation, indeed construction, fill in, by a case-by-case approach the skeletal outlines [in which instances] * * * the degree of flexibility in handling statutory precedents is that much the greater". (People v Hobson, 39 N.Y.2d 479, 490, supra.)

To suggest, as do the dissenters, that the number of cases posing this issue which appear on our calendars is significant is not persuasive. There is no indication that this is the tip of any iceberg. Rather the situation is likely to be quite the reverse; because of inherent disposition to contest and the availability and relatively smaller cost of legal services it may more realistically be assumed that the courts are likely to see virtually every instance where our interpretation of this statute is claimed to have worked a deprivation of political rights.

At the jurisprudential level the issue is even clearer. The Legislature has peculiar responsibility under our polity for prescribing the regulation which should guide political affairs and the activities of political parties, subject only to the constraints of constitutional mandate. In the construct of any political philosophy under our polity, to the extent that government is involved in elective processes, the role of the legislative branch must be recognized as paramount. Moreover, whatever reality there may be to assertions of the Legislature's indifference or unconcern in other narrow areas, there can be no substance to any suggestion that our legislators are disinterested in election matters.

To state, as does one dissenter, "that decisions construing the Election Law are entitled to less respect as precedents" (dissenting opn, MEYER, J., at p 28) advances a novel proposition. The need for predictable consistency is not diminished merely because the electoral process is implicated. It is true, of course, that election cases are necessarily expedited; the political calendar and the electoral process demand as much. In some instances, however, it is the impact with which one hits a problem rather than the sustained pressure applied, which counts. That less time elapses from start to finish may foreclose the luxury of leisurely reflection and thus, perhaps, limits the opportunities to explore ramifications. To this extent one can agree that particular care should be taken in extrapolating from precedent in these matters. No such instance, however, is presented in the present case; here the precedents are squarely on point.

Accordingly, even if one were to be persuaded that the dispositions in Rutter, Vari and Morris were in error, it would be judicially irresponsible for the court to overturn the interpretation of the 1977 recodification of the Election Law announced as recently as one year ago.


FUCHSBERG, J. (dissenting).

My analysis of the underpinnings and consequences of the court's decision in Matter of Rutter v Coveney ( 38 N.Y.2d 993) having been set forth "before the fact" when I coauthored the dissent in that case, I find no need to repeat them here. And, out of respect to the general principles of stare decisis and, of course, the possibility that my prognosis would prove wrong, until today I deferred to subsequent reiterations of that pronouncement as prevailing law. Now, after four years of experience in its practical effect on the electoral process of our State, I am convinced that, the majority's laments notwithstanding, on striking the balance that the doctrine of stare decisis itself permits, I must now vote for a return to the status quo ante. In doing so, I venture some comments on stare decisis as applied in the context of the present case.

But first a few words about the facts, representative as they are of a train of appeals that has followed in the wake of Rutter. Petitioner gathered almost twice the number of signatures needed to designate him a candidate, doing so in petitions whose subscribing witnesses listed their names, addresses, political affiliations and town election districts with accuracy. True, they did not insert the number of their assembly district. But, since the town in which this local election is to be held is entirely within a single assembly district so that each witness must be registered therein, its omission, as conceded at oral argument, in no way could, or did, impede the pursuit of any inquiry — whether launched by the board, an opposing candidate or anyone else — to ferret out either fraud or other reasons that would disqualify the signatories from participating in the electoral process. To add to the unfairness in invalidating his petitions on account of this perfectly "harmless error", the petitioner, upon inquiry, had been advised by one of the board's deputy election commissioners that the assembly district need not be indicated on petitions for a town election. It comes as no surprise, therefore, that, in reversing a direction by the Supreme Court, Erie County, that petitioner's name be placed on the ballot, the Appellate Division ( 71 A.D.2d 1047), unanimously proclaiming its reluctance and acting within its confines as an intermediate appellate court, did so only "under constraint of [Matter of Vari v Hayduk, 42 N.Y.2d 980] * * * and similar holdings [in the Court of Appeals]".

Stare decisis, to its credit, is a far more subtle and flexible concept than some of those who would give it slavish adherence suggest. Its limitations are inherent, for the stability it espouses must coexist with both the dynamics of an evolving society and the accruing wisdom born of the repeated injustices which a particular ruling has wrought (see Cardozo, The Nature of the Judicial Process [1921 ed], pp 149-152). To that end, its temper partakes more of the malleability of gold than of the rigidity of steel. How else do we narrow the gap between the social philosophy of the present and the law of the past? So Justice BRANDEIS cautioned that stare decisis does not carry "a universal, inexorable command" (Washington v Dawson Co., 264 U.S. 219, 238), and Justice FRANKFURTER wrote of the need to reject the idea of a "disability at self-correction" (Helvering v Hallock, 309 U.S. 106, 121).

Significantly, the increasing flow of instances in which Rutter has been producing frustrating disenfranchisement demonstrates that, in the context of petition-gathering by and among often inexperienced citizens, the hypertechnical strictures which that decision dictates are unrealistic (in addition to Vari, supra, see, e.g., Matter of Morris v Hayduk, 45 N.Y.2d 793; Matter of Klemann v Acito, 45 N.Y.2d 796; Matter of Alper v Hayduk, 45 N.Y.2d 809; Matter of De Bruin v McGee, 40 N.Y.2d 909; Matter of Flanagan v Schwartz, 40 N.Y.2d 910; Matter of Neuberger v Anderson, 64 A.D.2d 933; Matter of Jones v New York State Bd. of Elections, 64 A.D.2d 950, revd 45 N.Y.2d 791; Matter of Cox v Wells, 57 A.D.2d 635; cf. Matter of Berry v Dodd, 38 N.Y.2d 995; Matter of Berger v Acito, 64 A.D.2d 949; Berger v Acito, 457 F. Supp. 296).

Even if these reported decisions do not correspond to the visible tip of a submerged iceberg of unreported ones, their very number alone should be enough to give us cause to question Rutter.

The quality of the rights involved in such cases also emphasizes why we should act now. In our society, few prerogatives are more to be valued than the right to vote and to stand for public office. A rule that invalidates petitions for errors that are neither substantial, prejudicial to other candidates, or reasonably detrimental to the ability to promptly ascertain the validity of signatures infringes on that right. In these circumstances, to say the least, the outposts of a fundamental constitutional right indeed are at stake. In such a case, public policy must outweigh stability for stability's sake.

Even if this were not so, it does not follow from the fact that a legislative enactment is implicated here that there exists, as the majority suggests, a "relative ease of accomplishing statutory change" (at p 18). First, the Legislature may have been ready to throw up its hands when Rutter and Morris rebuffed its attempts at liberalization of the petitioning process. Second and most important, while the Legislature has an interest in the elective process, it is hardly one free of political considerations. After all, most of the members of the Legislature, especially its leaders, are veterans of several re-election campaigns. They are not likely to be unaware that the sterner the rules, the more they are advantaged vis-a-vis independents and other challengers to their continuance in office. Given this inchoate conflict of interest, so often a part and parcel of the legislative office (see, generally, O'Malley v Macejka, 44 N.Y.2d 530, 533-534), unlike the majority I am not prepared to yield paramountcy to the Legislature in the guardianship of the elective process. To the contrary, the greatest contribution of the American judiciary may very well be said to be the protection it has afforded the individual against the inroads of an ever-enlarging government.

Moreover, involved here is a continuing, prospective right in the field of public law rather than one centering on a private interest in property, contract, trust or will entered into in expectation of an unchanging law. In this case, stare decisis, molding itself to the task at hand, would require closer examination of the so-called "binding precedent" (see Pratt v Brown, 3 Wis. 603, quoted in Pound and Plucknett, Readings on the History and System of the Common Law, p 275). For here, it seems to me, we are called upon "to look precedent in the teeth and to measure it against the ideals and aspirations of [our] time" (Schaefer, Precedent and Policy, 34 U Chicago L Rev 3, 23).

For all these reasons, I conclude that a pragmatic appreciation of the complexities of the petitioning process and the rights of candidates and voters calls upon us to return to our traditional stance of demanding but substantial compliance with the Election Law (see Matter of Rosen v McNab, 25 N.Y.2d 798; see, generally, Abrahams, New York Election Law, pp 150-152; People v Hobson, 39 N.Y.2d 479, 487-488).

Accordingly, the order of the Appellate Division should be reversed and that of Special Term validating the petition reinstated.


MEYER, J. (dissenting).

Recognizing, as Chief Judge BREITEL put it in his eloquent exegesis on stare decisis in People v Hobson ( 39 N.Y.2d 479, 491) that "the accident of a change in personalities in the Judges of a court is a shallow basis for jurisprudential evolution", I would concur on constraint of the precedents on which the majority rely were it not that there are, in my view, strong reasons grounded in considerations of both stare decisis and statutory construction for not doing so.

The essence of stare decisis is the value of stability in the law so that those who are governed by it may act in reliance upon the fact that it will not be lightly overturned. But the doctrine is "not a mechanical formula of adherence to the latest decision, however recent," (Helvering v Hallock, 309 U.S. 106, 119). Thus, we have consistently recognized the duty to re-examine a prior determination which is contrary to reason (Matter of Eckart, 39 N.Y.2d 493, 499; Rumsey v New York New England R.R. Co., 133 N.Y. 79, 85), and have, accordingly, overruled an election law interpretation only four and one-half months after it was handed down (Matter of Turner v Lawley, 25 N.Y.2d 963, decided Oct. 28, 1969; overruling Matter of Gaines v Board of Elections, 25 N.Y.2d 807, decided June 11, 1969).

Departure from prior precedents is not only authorized but required when the court is "satisfied, in the first place that they were wrongly decided, and in the second place, that less mischief will result from their overthrow than from their perpetuation" (Black, The Law of Judicial Precedents [1912 ed], p 10; see Matter of Eckart, supra, at p 493). Important in determining when prior decisional law must be followed and when it may be departed from are the nature of the interest involved (People v Hobson, supra, at p 489), "whether the law is serving its true function — the achievement of justice according to law" (Loughran, Some Reflections on the Role of Judicial Precedent, 22 Fordham L Rev 1, 16), the intrinsic quality of the precedent relied upon (Schaefer, Precedent and Policy, 34 U Chicago L Rev 3, 10), whether it is grounded in sound public policy, is working well or badly, will create injustice in the particular case (Kenison, Some Preliminary Observations on the State Appellate Judge Today, 61 Col L Rev 792, 795).

Examined in the light of these considerations, the precedents upon which the majority rely simply do not measure up. The citizen's right to run for public office as well as his or her right to vote are deemed so significant in our system of government that a State statute impeding the right of access to the ballot will not be accorded the usual presumption of constitutionality (Kramer v Union School Dist., 395 U.S. 621, 627; see, also, Lubin v Panish, 415 U.S. 709; Kusper v Pontikes, 414 U.S. 51; Dunn v Blumstein, 405 U.S. 330; Bullock v Carter, 405 U.S. 134; cf. Matter of Ramos v Alpert, 41 A.D.2d 1012, 1014, affd 32 N.Y.2d 903). A precedent which results in the frustration of the right to become a candidate for office is, therefore, by its very nature suspect. The interests that will be impeded by reversal of Matter of Morris v Hayduk ( 45 N.Y.2d 793) and its predecessors, can only be characterized as insubstantial by comparison. Those within the same or another political party who aspire to run for the same office will have been misled only to the extent that they expended time and money in inserting in their own petitions the assembly district number, surely a de minimis consideration, or in opposing the special proceeding at its various levels, an infirmity of all litigation under the American as distinct from the British system of justice. Other office seekers frustrated in their ambitions by the application of the Morris rule by the board of elections or a lower court may also, because of the existence of Morris and the cost of litigation, have concluded that further appeal was fruitless, but surely that "loss" is offset by the greater ease of becoming a candidate in the future that the overruling of Morris will provide, and in any event such an interest is much more evanescent that the property and commercial interests which spell adherence to rather than departure from erroneous precedent in most applications of stare decisis.

It seems apparent, moreover, that the decisions in question are not working well as precedents, for they clearly have not educated potential candidates to the difference between what the language of section 6-132 considered as a whole appears to require and what this court has held in Matter of Morris (supra) and its predecessors the section does require. To speak authoritatively on the issue one would have to survey at the election board level the number of designating petitions invalidated for failure to insert the assembly district against the total number of petitions filed, but the constant parade of cases involving the section before this court (Matter of Alper v Hayduk, 45 N.Y.2d 809; Matter of Klemann v Acito, 45 N.Y.2d 796; Matter of Morris v Hayduk, 45 N.Y.2d 793, supra; Matter of Vari v Hayduk, 42 N.Y.2d 980; Matter of Rutter v Coveney, 38 N.Y.2d 993; Matter of Berry v Dodd, 38 N.Y.2d 995) and which it has had to consider during this 1979 "election" session (no less than 4 of the 20 cases, including the instant case; Matter of Brown v Ulster County Bd. of Elections, 48 N.Y.2d 614; Matter of Wheeler v Reddy, 48 N.Y.2d 601; Matter of Vickers v Carlsen, 48 N.Y.2d 601) provides a fair basis for the conclusion when one considers the expense of litigating the issue and the inertia induced by the belated discovery that Morris and not the apparent meaning of the section governs and that there is the added burden of stare decisis to overcome. Nor is there much solace for those who would follow Morris in the aphorism that everyone "is presumed to know the law", for, as we long ago recognized, that is "a trite, sententious saying, `by no means universally true'" (Municipal Metallic Bed Mfg. Corp. v Dobbs, 253 N.Y. 313, 317), and one which, if applicable at all, more readily applies to the law as apparently declared by the wording of a statute, than to the decisional law which interprets the statute, ibid. Thus, the "self-help alternative" to which the majority refers (at p 20) is, at best, illusory, and if statistical support concerning the number of petitions invalidated under the Morris interpretation is not presently available, neither is there support for the majority's conclusion that "only the careless or inadvertent failure to follow the mandate of statute and case law" (at p 20; emphasis supplied) gives rise to the cases that come before us. The true number may well lie between the two assumptions, indeed could well lie closer to the majority's assumption than to mine without changing my view that when the result is to constrict citizen participation in the governmental process we should not assume the knowledge of case law construction diverging from the apparent meaning of statutory language that the italicized words in the above quotation from the majority opinion in fact assumes.

As Justice ROGER J. TRAYNOR has so succinctly put it, "a bad precedent is easier said than undone" (Traynor, La Rude Vita, La Dolce Giustizia: Or Hard Cases Can Make Good Law, 29 U Chicago L Rev 223, 231).

Clearly the present petitioner, Higby, was neither careless nor inadvertent (see infra this dissent, at pp 29-30).

See the reference in Friendly, The Gap in Lawmaking — Judges Who Can't and Legislators Who Won't (63 Col L Rev 787, 792) to the claim "that citizens ought to be able to rely on what they read in the statute book, especially in areas in which citizens make plans on the basis of what they read".

Nor should the possibility of legislative correction of the Morris interpretation deter us. The majority recognizes (at p 19) that this court "may properly step in to effect a change in statutory interpretation", but concludes that we should not because of the relative ease of accomplishing statutory change, the greater capability of the Legislature to gather relevant data and the fact that our system of government assigns to the Legislature responsibility for determining election law policies. As Professor (now Judge) Robert E. Keeton put it in Venturing to do Justice: Reforming Private Law (at p 17): "the aphorism that a legislature's failure to enact a change is an expression of approval of the law as it stands is a patent fallacy". To the reasons he assigns (the ever increasing demands upon the legislators' time and the fact that the majority individually may have no point of view on the issue in question), I would add the realities of the legislative process. We should not assume that those whose candidacies are frustrated by the Morris interpretation have the constituency to produce legislative change, that provisions written into the Election Law as part of an over-all revision and under the legislative pressures that such a rewriting brings to bear will necessarily be restored when piecemeal amendment is required to overcome an erroneous decisional interpretation of an isolated section, or that under our political system the interest of a majority of legislators will always be to restore to the statute by amendment the meaning originally legislated (cf. majority, at pp 20-21; see, generally, Friendly, op. cit. [at p 27, n 3], at pp 792-798, 801-802).

If we turn to consideration of the intrinsic quality of the precedent, Election Law interpretations should be deemed more readily subject to correction by the court than its decisions construing other statutes. This is not because the courts are in any sense cavalier in their consideration of such cases but quite simply because section 16-116 of the Election Law requires that special proceedings brought under the law "be summarily determined" and be given "preference over all other causes in all courts". The speed with which such proceedings must be researched and prepared by the attorneys involved in them, with which the proceedings move through the courts (often moving from election board to Special Term to the Appellate Division and to this court in little more than a week), with which decision must be reached by each of the courts that considers the matter (in most cases limiting to hours rather than days the time from argument to completed opinion), and the unorganized nature of the "record" (if it can be dignified with that title) upon which the courts must act, all suggest that decisions construing the Election Law are entitled to less respect as precedents than statutory construction decisions that move through the courts at an infinitely more leisurely pace (generally years, or at least more than a year, as compared with weeks and almost always less than a month from lower court inception to ultimate determination by this court).

The way is, thus, open, within the confines of stare decisis to re-examine the interpretation of the statute. Cardinal in that interpretation is that statutory language is to be construed in accordance with its commonly accepted meaning (People v Hardy, 47 N.Y.2d 500, 505; Matter of Common Council of City of Gloversville v Town of Johnstown, 37 A.D.2d 459, 460, revd on other grounds 32 N.Y.2d 1; see 1 McKinney's Cons Laws of NY, Statutes, §§ 94, 272). Section 6-132 of the Election Law contains in subdivision 1 the language acceptable as a designating petition and in subdivision 2 the language acceptable as a subscribing witness' statement to such a petition. The body of the petition calls for the statement of "Ward (if any) or Assembly District (in the city of New York and in the towns in the county of Nassau)", and the witness' statement requires that he or she indicate his residence address and election district and indicate the "Ward/Assembly district (fill in Ward, if any, otherwise fill in Assembly District where required)". The clear import of that language (the more especially since "where required" is nowhere else defined in the Election Law) is that the assembly district is only required "in the city of New York and in the towns of the County of Nassau". The contrary interpretation given the section in Matter of Morris, is predicated on prior decisions, the distinction between signers and subscribing witnesses suggested by comparison of sections 6-130 and 6-132 and the failure of the 1978 Legislature to adopt bills which apparently would have spelled out the meaning of "where required" in subdivision 2 of section 6-132. Since Morris was not decided until after adjournment of the 1978 legislative session that failure should not be accorded any greater significance than the fact, overlooked in Morris, that the title of section 6-130 is "Designating petition; form, witness, qualification". (Emphasis supplied.) I do not blink the facts that section headings are at best an aid to construction (1 McKinney's Cons Laws of NY, Statutes, § 123, subd b) and that the body of section 6-130 refers only to signers. I refer only to the section heading as an additional reason for a legislative belief that, as is also called for by the general rule of construction (1 McKinney's Cons Laws of NY, Statutes, § 130), sections as closely related in subject matter as these were intended to be and would be read together, and thus as possibly explaining why the bills to which the Morris decision referred were not enacted into law. The point is not that my speculation is stronger than that relied upon in Morris but that a right of the importance of that in question should not be frustrated on the basis of so thin a reed.

Compare Boys Market v Clerks Union ( 398 U.S. 235, 241) characterizing it as "`at best treacherous'" to find in legislative silence the acceptance of decisional law. (See, also, Hart, Comment in Legal Institutions Today and Tomorrow, pp 40, 45-48 [Paulsen ed, 1959].)

The reasonableness of interpreting "where required" in subdivision 2 of section 6-130 to refer back to subdivision 1 is underscored by the undisputed evidence in this case that the present petitioner Paul N. Higby, seeking the Republican Party's nomination for Town Councilman in the Town of Orchard Park, inquired of an election board official whether he was required to have subscribing witnesses insert the assembly district number in his petitions, was told that that was not required, and submitted petitions which uniformly omitted that number. Thus, even the cognoscenti of the election commissioner's staff are not all aware of our construction of the section and interpret the language according to the common speech of men. Clearly, therefore, the construction constitutes a trap for those not so knowledgeable, into which, as already suggested, many unwittingly fall.

Higby urges that there should be an estoppel in his favor, but estoppel is not ordinarily applied against governmental officials (Matter of Farrell v Morton, 268 N.Y. 622).

The more egregious does the problem become when one bears in mind that in many instances, as in the Town of Orchard Park, the town is entirely contained within one assembly district. Thus, there is no possibility that the insertion of the assembly district number could have added anything by way of convenience or reliability in the process of checking the validity of the signatures to the petition. While there may be the possibility of confusion with respect to petitions for office in places other than the City of New York and the towns of the County of Nassau, it seems more than likely in light of the express reference to the city and the County of Nassau that the Legislature would have used more narrowly drawn language than "where required" as the means of reaching those cases had it intended to reach them.

In final analysis, the problem comes down to which precedent should be followed: Matter of Turner with respect to stare decisis or Matter of Morris with respect to the interpretation of section 6-132. For me the answer is plain. Bearing in mind the importance of citizen access to the ballot and the continuing problem presented by the Morris interpretation, the stability value in following precedent is clearly overbalanced. As Mr. Justice JOHN M. HARLAN stated in Moragne v States Mar. Lines ( 398 U.S. 375, 405), "judicious reconsideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason".

For the foregoing reasons, I would reverse the order appealed from and reinstate the Special Term order.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES and WACHTLER concur in Per Curiam opinion; Judges FUCHSBERG and MEYER dissent and vote to reverse in separate dissenting opinions.

Order affirmed, without costs.