
    Supreme Court, Warren Special Term,
    June, 1901.
    Unreported.
    In the Matter of the Application of John H. Pitkin for a Writ of Mandamus Against John Glassbrook, et al.
    
      John H. Cunningham, for relator.
    
      W. G. Van Loon, for Deputy State Commissioner of Excise, Maynard H. Clement.
   Houghton, J.:

The moving papers show that the four local option questions were voted upon at the biennial town meeting in the town of Stony Creek, Warren county, April 2d, 1901, and that the vote was against the granting of licenses by majorities of from 51 to 19. The largest number of votes cast for any town officer was 262, and the largest number of votes cast for and against proposition Ho. 1 was 189, and there were of the various ballots cast 60 rejected for one reason and another.

It is conceded that no notice was posted, as provided by the Excise Law, of the filing of the petition or that the question of local option would be submitted to the voters, nor was there' any publication of such notice in any newspaper in the county of Warren.

The relator alleges that the petition was defective, but, passing that question, I think that a notice that the questions are to be submitted to the voters, and the posting and publication of such notice, as provided in the Excise Law, is mandatory, and that any vote taken by the electors upon such questions is a nullity unless such notice, as provided by the statute, is given.

I have had occasion recently, in the matter of Sullivan v. the Town of Moreau, to examine the authorities, and there refused to set aside an order for the resubmission of the matter to the voters of the town, upon the ground that although there had been agitation of the temperance question in the town and news items in the newspapers circulated in the town, and although there had been temperance tracts and exhortations mailed to the various voters of the town, still there was not legal notice given of the submission of the questions, and my reasons for so holding are stated in the memorandum on that proceeding.

The town board of the town of Stony Creek is directed to reconvene and reject all ballots cast on the question of local option at the town meeting held April 2d, 1901, and certify to the county treasurer of the county of Warren and the State Commissioner of Excise that no vote was taken upon such questions in that town.  