
    In the Matter of the Application of Meier Steinbrink, Respondent, for a Peremptory Writ of Mandamus against William C. Lloyd and Others, Constituting the Board of Primary Election Inspectors of the Twenty-seventh and Twenty-eighth Election Districts of the Twelfth Assembly District in the County of Kings, City and State of New York, Appellants.
    Second Department,
    July 30, 1915.
    Elections — qualification of electors at primary election—change of residence after enrollment — purpose of oath under section 72 of Election Law.
    A voter who has enrolled in an election district and subsequently changed his residence by moving into another district in which he has not enrolled, but in which he has resided for more than six months immediately preceding the holding of the primary, is not entitled to vote at the primary election, even though his name has. not been stricken from the enrollment list in the first election district and no proceeding instituted ' for that purpose, and he cannot compel the board of inspectors to receive, his ballot by taking the oath provided for by section 72 of the Election Law.
    The oath provided by section 72 of the Election Law is a means of identifying only a voter who is enrolled in the election district in which he seeks to vote.
    Appeal by William: 0. Lloyd and others, constituting the board of primary election inspectors, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of September, 1914, granting respondent’s application for a peremptory writ of mandamus.
    
      Edward A. Freshman [Charles J. Druhan and Frank L. Polk with him on the brief], for the appellants.
    
      Meier Steinbrink, respondent, in person.
   Rich, J.:

This appeal is by the members of the board of primary election inspectors of the twenty-seventh and twenty-eighth election districts of the twelfth Assembly district, borough of Brooklyn, from an order of the Special Term directing the issuance of a peremptory writ of mandamus requiring them to receive the vote of the respondent (who was not enrolled) at the September, 1914, primary election at the polling place in their election district in the borough of Brooklyn.

The relator enrolled in October, 1913, as a member of the Republican party from No. 163 Windsor place in the twenty-ninth election district, twelfth Assembly district, borough of Brooklyn, where he had resided and voted for eight years. After enrollment he acquired a residence at No. 18 Fuller place, which is within the twenty-seventh election district of said Assembly district, where he had resided for more than six months prior to September 28, 1914, the primary election day. His name had not been stricken from the enrollment list in the twenty-ninth election district and no proceeding had been instituted for that purpose. On primary day he presented himself at the Republican polling place in the twenty-seventh and twenty-eighth election districts, and his right to there vote, though he made it appear that he then resided and had resided for more than thirty days at No. 18 Fuller place in the borough of Brooklyn, was denied.

The question presented, so far as. respondent is concerned, has become academic, but it remains important because the same question is likely to arise frequently until some Legislature will amend the statute by providing a method by which a person qualified to vote may not be deprived of the right to participate in the nomination of his party candidates. Under such circumstances, it seems necessary to express our views on the question involved in this controversy.

In the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22) regulating' the enrollment of voters to qualify them to vote at an official primary, it is provided by section 19 (as renum. from § 39 and amd. by Laws of 1911, chap. 891) that ‘< Only voters enrolled as provided in this article shall be entitled to participate in the official primary elections of 'their respective parties,” and section 71 (as added by Laws of 1911, chap. 891) provides that “No person shall he entitled to vote at any official primary unless he is duly enrolled and may be qualified to vote on the day of election,” and an elector may not vote at a primary election in any other district than the one in which he is enrolled. He must be enrolled to be entitled to vote in any election district; he can enroll in only one district and his name must appear on the enrollment book of that district. The qualification and limitation “duly enrolled’’ -applies only to the election district in which the voter is enrolled and upon the enrollment book of which his name appears. The relator contends that a voter who has enrolled in an election district and subsequently changed his residence by removing into another district in which he is not enrolled, but in which he has resided more than thirty days immediately preceding the holding of the primary, is a qualified voter therein and can, if proceedings have not been instituted and his name stricken from such enrollment hook, compel the board of inspectors to receive his ballot by taking the oath provided for by section 72 (as added by Laws of 1911, chap. 891). It is .regrettable that the plain meaning-and intent of the statute will not permit of such a construction. The oath provided by section 72 is a means of identification only of a voter who is enrolled in the election district in which he seeks to vote. While, as contended, the statute is incomplete and omits the desirable provision mentioned, we can render no relief. The powers of the court are limited to the construction and enforcement of statutes and not their enactment, and we cannot remedy the faults and defects of a statute or give relief from its requirements, if constitutional. The Legislature seems to have acted with the intention of preventing persons who have moved from an election district after enrolling therein, and who have acquired a residence in another district, from voting at a primary election.

The order should be reversed, without costs.

Jenks, P. J., Thomas, Stapleton and Mills, JJ., concurred.

The parties hereto having stipulated in open court that a justice may be substituted in place of Burr, J., deceased, Mr. Justice Mills was so substituted. Order reversed, without costs.  