
    In the Matter of the Application of John Merow, an Elector and Taxpayer of the Town of Little Valley, Cattaraugus County, New York, Appellant, for an Order to Set Aside and Vacate the Return and Canvass Made by the Inspectors of Election for Said Town on the 7th Day of November, 1905, and the Canvass of the Said Town Board Made Thereon, on the Four Questions Submitted under Section 16 of the Liquor Tax Law at a Town Meeting of Said Town Held on Said Date, and for an Order Directing a Special Town Meeting of Said Town to Be Held under the Provisions of Section 16 of the Liquor Tax Law, at Which the Four Local Option Questions Designated in Said Section 16 May Be Submitted. Patrick W. Cullinan, Commissioner of Excise of the State of New York, Respondent.
    Fourth Department,
    May 2, 1906.
    Election Law—irregularities in printing slip in voting machines which. - do not invalidate vote on question of local option.
    Á failure to print upon a local option- ballot or slip placed in a voting machine, , immediately preceding each question authorized to.be submitted, a heading .or caption like that found- in section 16 of the- Liquor Tax Law is not an irregu-' larity sufficient to warrant an annulment of the election on the question of local option.
    Mor are a failure to number such ballots or slips from one to: four both inclusive,as numbered in the Liquor-Tax Law, and a failure to make the instruction card correctly represent" the face of the, voting machine, fatal irregularities when they did not affect the result or in the least interfere with the exercise of the right of any elector to vote as he saw fit upon "the questions submitted.
    Spuing- and Williams, JJ., dissented,-with opinion.
    Appeal by the petitioner, John Merow, from an order of the Supreme Oonrt, made at the Erie Special Term and entered in the office of the cleric of the county of Cattaraugus on the 11th day of December, 1905, denying the petitioner’s application for an order vacating and setting aside the return and canvass made .by the inspectors of election of the town of Little "Valley, on the 7th day of November, 1905, and the canvass of the board made thereon on the four questions submitted under section 16 of the Liquor Tax Law, at a town meeting 'held in said town on said date, and denying the petitioner’s application for an order directing a special town meeting of said town to be held under the provisions of section 16 of the Liquor Tax Law, at which the four local option questions might" be resubmitted.
    
      Thomas L. Newton, for the appellant.
    
      Daniel A. Reed, for the respondent.
   McLennan, P. J. :

The irregularities which occurred in submitting the local option questions at the general election and toivn meeting held in the town of Little Valley, county of -Cattaraugus, in the year 1905, were not of such character or importance as to render such submission void and to entitle the petitioner to a resnbmission of such questions at a special town meeting to be held for that purpose as provided in section 16 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1905, chap. 680).

The appellant claims that there were at least eight irregularities in the submission of those questions, but apparently only three are regarded of sufficient importance to require a decision reversing the express will of the majority of the electors as evidenced by the number of votes cast for and against such questions. Indeed, each of the other irregularities complained of affected equally the election of all the town officers and all ballots cast at such election, and if of sufficient importance to invalidate the result as to the local option questions, a total disfranchisement of the electors of the town would logically follow. .Yet we think no court would seriously consider á proposition'so drastip.

The alleged misleading instruction card indicating, among other things, a different arrangement of the knobs than was actually upon tile voting machipe, affected alike all ballots cast. The suggestions ' that the local option questions were printed in -small type; that the voter could only remain in the booth one minute, and, therefore,, might .he .unable .to determine how and for what to vote, apply with equal force to the submission of the proposed constitutional amendments voted' for at the election in' question.

The three alleged irregularities- which are urged as sufficient to authorize ihe annulment of the election, so far as the vote upon the local option questions is concerned, are the following:

1. The failure to print upan such'local option ballot, or slip placed in the voting machine a heading or caption, like those found in section 16 of the Liquor Tax Law (as amd. supra), immediately preceding each question authorized to be submitted.

2. The failure to number such ballots or slips from 1 to 4, both inclusive, and as numbered in the Liquor Tax Law (as amd. supra).

3. The failure to make the instruction card 'correctly represent the face of the voting machine.

The further discussion will be confined to those three alleged irregularities, with a view of ascertaining whether'they are of Such ^character and importance as to justify the'annulment of the election in so far as it returned an answer to the local option questions submitted. Clearly such should be the determination if any mandatory requirement of the .statute was not complied with, or'if it appears that by the methods employed the voters were misled or prevented from-freely answering the questions submitted to them;

We think there is no statute which requires a town clerk, the officer who by law is charged with the duty of preparing the ballots for the submission of town propositions, including the local option questions, to cause to be printed upon,-such ballots a heading or caption. • Section 16 of the Liquor Tax Law' (as amd. supra), so far as it relates to that matter,, provides: “In order to ascertain the. will of the qualified electors of each town, the following questions shall be submitted * * *:

“ Question Í. Selling liquor to be drunk on the premises where sold.— Shall any * * * person be authorized to traffic in liquors * * * by selling liquor to be drunk on the premises where sold, in” (the town of Little Valley)-?

Then follow the'other three questions which are authorized to be submitted, and each is preceded by the word Question,” by the numbers 2, 3 and 4 respectively, and by a heading or caption similar in form to that quoted above. It is claimed that by omitting to print upon the ballot such heading or caption all the votes cast for or against the same were void.

Such heading or caption is no part of the question. The words Selling liquor to be drunk on the premises where sold,” do not Constitute a question. Lío answer can be made to such words. The question, in each instance, distinct, concise and complete follows such words and it alone is required to be printed.

Section 16 of the Liquor,Tax Law .(as amd. supra) provides: “ Whenever such questions (local option) are to be submitted * * * it shall be the duty of each officer charged by law with the duty of preparing the official ballots for such town meeting or election, to have prepared * * * .the ballots required by the Election Law for voting upon any constitutional amendment, proposition or question in the form and of the number required by the Election Law, upon the face of which shall be printed in full the said questions ■(local option) as heretofore stated.”

There is no provision in the Election Law which requires headings or captions on the ballots for voting upon proposed constitutional amendments, and none were added to the ballots for the seven proposed constitutional amendments voted for a-t the election in question. (See Election Law [Laws of 1896, chap. 909], § 82, as amd. by Laws of 1901, chap. 598; Id. §§ 167, 180, added by Laws of 1899, chap. 466.) In that respect the ballots for the local option questions and for the proposed constitutional amendments were identical, and, as it seems to me, in strict compliance with the requirements of the statute. ’

It may be that if the headings or captions had been added to the ballots in question the voters could have more readily identified any particular question, but evidently the ¡Legislature did not deem it of sufficient importance to. make ifone of' the requirements of the stat-. ute;. Indeed, if the- Legislature deemed' it proper that, proposed amendments to the Constitution should be submitted without such ' headings or captions, it would be difficult to conceive of any good reason why such would be required in the submission of local option questions. These questions and the proposed amendments to . the Constitution-were printed in apparently the same type (as we judge from careful inspection of the photographic exhibit attached to the record); the electors had precisely the same opportunity to ascertain the contents of the ballots for each; the proposed constitutional amendments were Certainly as important as the questions Submitted, and all the suggestions to the effect that the ballots were printed, in small type, that- the voters could remain in the booth only one. minute, apply with equal force to-the proposed amendments.- ¡But there is not the slightest evidence in the record that either the local option questions or the - proposed amendments were printed in small type, and there is no claim by the petitioner that such- questions as printed. were not entirely legible, easily read, or that any voter ■ experienced any difficulty in reading and ascertaining the contents of the same. / v '

The statute (Election Law [Laws of 1896, chap. • 909],. § 167, added by Laws of Í899, chap. 466). prescribes in the following language the ballots to be used in voting machines duly authorized to be Used in ¿this State: “All ballots shall be printed in black ink on ' clear, white material,, of such size- as will fit the ballot frame, and in plain, clear type as the space will reasonably permit. * *

¡No other direction or. requirement is-to be found relating to the form of the ballots, to be used in voting machines,-abd this provision applies to all ballots to be voted. - It nowhere appears that this provision was violated in the preparation of any of the ballots voted at the election in question, and- the. question of color of material and ink used, or plainness,, clearness or size of type employed in the preparation of the ballots for the election in question,, was not raised' by the petitioner on his application at Special Term nor on the appeal in this court.

¡Neither is there any statutory requirement which in expres's terms, at-least, makes it the duty of a town clerk in preparing ballots for the submission of local option questions to number the same from 1 to 4, both inclusive. In the case at bar, if such alleged requirement had been followed, it necessarily would have caused confusion, for then, upon the face of the voting machiné, there would have been a duplication of such numbers. The first series of numbers from 1 to 4, relating to the first four proposed constitutional amendments to be voted on, and the second series, relating to the local option questions, would have been identical, and, therefore, such numbering would not have aided in identifying either. As arranged, the ballot for the first proposed constitutional amendment put in the machine was numbered “1,” the next “2,” etc. We think it cannot be claimed that it was the intention of the Legislature to require the ballots for the local option questions upon the same" machine to be numbered in precisely the same manner, especially so when it is evident that such course must tend — if it had any effect—to décéive, mislead and confuse the elector.

The objection that the instruction card did not in all respects correctly yepresent the face of the voting machine is apparently not regarded of sufficient importance to have rendered the result of the election void so far as the local option questions are concerned. But it is urged that .such defect, taken in connection with the others referred to, establishes the proposition that the electors were deceived and misled to such extent as that there should be a resubmission of those questions.

The moving papers wholly fail to show that any elector was so . misled or deceived. ■ It is not shown that each voter did not have full and free opportunity to enter the voting booth; that he could not or as matter of fact did not, read and -fully understand each question printed upon the local option ballots as well"’as upon the ballots for the proposed constitutional amendments and the names of" the candidates for office printed upon the other ballots placed in the voting machine. Neither is there any allegation that any elector was prevented or experienced difficulty in locating the local option ballots upon the machine, or in improperly identifying each. Indeed, the number of votes cast very conclusively indicates that there was a very free expression of the electors upon- those questions. It appears, as stated in the affidavit of Mr. Champlin, who is president of one of the largest manufacturing establishments in Little Valley, that he was present at such election; “ was present practically all day in the room where- said machine, stood, and that such front -and such license propositions thereon were in full, plain view for a space after each voter left the machine; that at no time on that day were said propositions misplaced on said machine up to 5 o’clock. * * . * That said machine appeared to be in. perfect order in all its parts,, and lie heard no coihplaint or suggestions from any'one that, it was not working satisfactorily and in a manner to record the will of any voter operating it during the entire day.”

Marlon D. Bryant, one of the inspectors of election, deposes that hte was present the entire day in the. discharge of his duty as inspector, and that he observed “ the working of said voting machine-; that he heard no complaint and observed no trouble with its operation at any time except that several voters, four • or five, had to be assisted as the law provides by reason of physical infirmity of the voters ; that no suggestion was made,by anybody that came to. deponent’s knowledge that the propositions to be voted on' upon the Excise question Or any other question were misplaced oh said machine, or that there was any difficulty experienced by any voter in voting as he desired upon those propositions or that he had failed to do so after attempting it. * *'. * ■ The face of the machine was well lighted and perfectly visible all day; that deponent’s position on the whole of said day was almost directly in front, of tit and he was within.six feet of the front of the -machine all day long; that he many,times during the day observed'the face of the machine; that there was no displacement of the ■ propositions upon the excise questions, and they remained all day in the position in which they were when the machine was set up and voting begun., * * * That from the time-when the polls opened in the morning the face of the machine was perfectly illuminated both by an incandescent electric light, properly placed for that purpose,' and also by a lantern hung inside the. curtains in front of the face of the machine, and at no time from the time the polls opened until they closed was such' lighting neglected, nor was there any time when the face of the machine was not well lighted so that anybody could plainly read all there was. upon it.

It appears by the affidavit of James H. Wilson, who for the last five years has been supervisor of the town.of Little Valley, that hé was present on election day, saw the machine in operation; in substance, that it worked smoothly, and that no complaint was made by any voter, so far as he knew.

It appears by the affidavit of Henry Bramer that he was employed from the first day of November until the day of election to instruct voters how to operate the machine and how to vote upon the local option questions, by the use of a dummy machine set up for that purpose; and that the ballots so arranged upon such dummy corresponded with the ballots as arranged upon the voting machine used; and that any elector of the town who so desired was given full and accurate instructions by him as to how to vote upon the local option questions.

George W. Korn says he was present and voted; “ that everything upon the face of said machine, including said propositions^ was perfectly and easily readable, and he had no difficulty in voting as he desired to vote for any candidate or upon any proposition.”

John J. Sullivan states in an affidavit made by him that “he was one of the Board of Election Inspectors having charge of the election ; * * * that with the exception of about one-half hour for lunch, deponent was at all times present at the polling place; * * * that deponent observed the working in said voting machine during the entire day while he was present; that there was at no time and from no individual any complaint or suggestion that such machine was not in perfect working order. . * * *

“ Deponent further says that from the time and before the time of the opening of the polls on election day. the face of the machine voted upon whs well and perfectly illuminated both by an electric light so placed so as to light the front of the machine in the best possible manner and only a short distance therefrom, and also by a lantern hung in front of said machine within the curtains so that there could be no question about the perfect lighting of the face of the machine, and at no time during election day was there any complaint or suggestion on the part of any voter who voted in said machine that the same was not properly lighted, or that he was unable to read anything appearing upon the face of the machine; that great pains (were) taken by the election board to see that this was done, and the claim now made that said machine was not lighted perfectly is without foundation in fact. * * * That deponent did not hear on election day, and does not believe that any voter who voted at said election failed to vote as he designed to vote upon any proposition or for any candidate, and on election day no claim was made by anybody to the knowledge of deponent that any man had failed to register his vote in accordance with his wishes, or that he had any difficulty in so doing by reason of any defect or trouble or by reason of any. arrangement of propositions upon the machine.”

We think the very great weight of the evidence is in favor of the proposition that no elector was misled by reason of the irregularities complained of, or that he was prevented from freely expressing his will at the polls. It seems to me manifest that if there had been difficulty in that regard, some voter during the entire day and while the election was in progress, would have made complaint. There was a contest upon the question of local option. It created intense interest in the town. Indeed,'while the whole number of -electors who voted was 493, 411 voted on the local option question first upon the machine, and the result shows a surprising similarity in the number of affirmative votes cast for the several propositions. On question No. 11 there were- 187; on No. 12, 187; on No. 13, 180; and on No. 14, the hotel question, 178. -These figures indicate that those in favor of no license voted practically in the same- way upon each of the propositions except the last, and that their votes were accurately recorded.

The whole complaint of the petitioner is based upon technicalities, the alleged failure to comply with some provision of the statute rather than of substance, and not because the electors were misled or deceived or prevented from freely expressing their will upon the questions- submitted to them. Such irregularities should' not be seized upon to defeat and thwart the will of the electors when it is clearly demonstrated that they did not affect the result or in the least interfere with the exercise of the right of any elector to vote as he saw fit upon the questions submitted.

We think the rule is correctly stated in the case of People ex rel. Hayes v. Edwards (42 Misc. Rep. 567) by Mr. Justice Davy: “ The election should not be declared invalid On the ground that the officer having charge of the printing of the ballots made an honest mistake or some slight omission in the printing of the ballots, unless they are fraudulent or affect the results of the election or render it uncertain.”

In one off the earliest cases decided by the Court of Appeals of this State (People v. Cook, 8 N. Y. 67, 86) it was said : “ The defendant, failing to show the return false, seeks to reject it altogether on account of the non-compliance by the inspectors with some of the provisions of the election laws. There are various duties enjoined by law on the inspectors, the great objects of, which are: 1. To afford to every citizen, having a constitutional right to vote, an opportunity to exercise that right. 2. To prevent every one deprived of that right from voting. And 3. To conduct the election in such a manner, in point of form, that the true number of legal votes can be ascertained with certainty. If all these objects be accomplished, as they seem to have been in this case, to reject the whole poll, because the inspectors failed to comply with every prescribed regulation, would be, as was well remarked by one of the judges in the court below, to place a higher value on the statute regulation, than on the right itself. It would be a sacrifice of substance to for rnP

In a later case decided by the Court of Appeals (People ex rel. Hirsh v. Wood, 148 N. Y. 142, 146) it is said: “We can conceive of- no principle which permits the disfranchisement of innocent voters for the mistake or even, the wilful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult.”

In People ex rel. Leonard v. Hamilton (42 App. Div. 212) it is said': “ Irregularities in the statement will not be invoked to defeat the will of the electors. This in no particular infringes upon the right of every interested party to test the validity of the election, and the existence of this right, irrespective of the statement, shows that the latter cannot be made paramount to the intention of the electors.”

Upon the authority of the cases referred to — and many more might be cited to the same effect — we think it ought not to be held, under the facts disclosed by the record in this case, that the election in question, so far as it relates to the local option questions, should be declared void. There was a fair contest upon those questions. No' one complained of the manner in which it was being conducted while it was in progress. Every one was satisfied until the result was declared, and the. defeated party then for the first time made complaint and sought to have a new election and another opportunity to compel the people of the town of 'Little Valley to have the saloon or barroom forced upon them against the will of the majority. And it is sought thus to thwart the express will of the electors solely because of the alleged non-compliance of the election officers with some technical requirement of the statute, and not because the result was affected thereby or because any elector was prevented from voting as he desired.

We conclude that no mandatory requirement of the statute necéssary to a valid election was omitted ; that the will of every elector was expressed and recorded as by him intended, and, therefore, that the ’order appealed from should be affirmed, with costs.

Nash, J., concurred ; Krüse, J., concurred in separate memorandum ; Spring, J., dissented in an opinion in which Williams,. J., concurred.

Kruse, J. (concurring):

I concur in the opinion of the presiding justice save in one respect. I think the ballot should have Contained the.numbering and heading of the questions as stated in section 16 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1905, chap. 680), but the omission of the election -officers 'to furnish ballots of that description did not of itself invalidate the election, and is not sufficient to warrant ordering a new election in view of the fact that the voters were not misled and the election affected thereby.

Spring, J. (dissenting):

The notices and requirements prescribed by the statute antecedent to the election arid designed to obtain a submission of the four local option questions to the electors of the town of Little Valley were complied with. The defects which it is claimed rendered the election illegal arose chiefly out of the failure to meet the obligations pertaining to the submission of the questions on election day. Several irregularities are complained of which I deem unimportant on this appeal in that they are only technical departures from the strict letter of the law, or else they have been determined adversely to the appellant upon conflicting facts. I think, therefore, that they did not deceive the elector or prevent the registering of his vote in the way designed by him and that is the aim always to be attained.

The United States Standard voting machine was in use at this election. Instruction cards were posted conspicuously by the inspectors purporting to display the front of the machine, and intended to advise the elector of the method of its use. The pictorial illustrations were not of the machine used at this election, but represented one of a different type. The tickets on the machine in the booth were placed horizontally with the party knobs arranged at the left side of the machine and extending along in a straight line under each other, and the_ spaces for questions were at the top and the pointers as well. In the machine illustrated on the instruction cards the knobs extended perpendicularly from the top to the bottom of the machine and the pointers also followed down through to the bottom of the ballot, one being opposite each name or question. The “ questions ” were also denoted in a perpendicular row at the right of the ballot.

Section 173 of the Election Law (Laws of 1896, chap. 909, added by Laws of 1899, chap. 466, and amd. by Laws of 1901, chap. 530) requires the inspectors to cause at least two instruction cards “ to be posted conspicuously within the polling place.” The object of this requirement is to enlighten and instruct the voter in the use of the mechanism of the machine which is to register his vote. The time lie may spend in the booth is limited to one minute (Election Law, § 175, added by Laws of 1899, chap. 466), and with the natural timidity of the average elector it is important that he learn the method of its operation before he attempts to vote. In the present instance the instruction cards did not teach correctly, but tended to confuse and mystify the elector.

But there" are one or two other violations of the statute enacted to insure the honest expression of the elector’s wish,. which I believe tended to mislead him, and upon which I mainly rest my dissent. Section 16 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1905, chap. 680), prescribes the four questions which are to be submitted to the electors of a town in order that they may determine Whether liquors shall be sold Under the .provisions of this act.” . The questions are numbered:*» numerical order from 1 to 4, and each contains a caption of a- brief sentence in clear .phraseology indicating the • precise proposition explained at length in the question following the caption. To illustrate, the form of number 4 is — Question 4. Selling liquor by hotel beepers Only.” This heading is intended to rivet the attention of the voter to the exact import of the question ,and thus prevent any misconception of its meaning.

The town electionin Little Valley in November, 1905, was held, concurrently with the State, election. The ballots for the various tickets and the constitutional amendments Were provided by tlie county clerk and transmitted to- the' town -clerk of Little: Valley. It then became the duty of that official to provide the ballots for the town propositions, including those, relating to excise conformably to the petition filed with him. (Election Law, § 86, as amd. by Laws of 1905, chap. 643; Matter of Rice, 95 App. Div. 28.)

At the top of the ballots furnished by the county clerk, extending from left, to right as the voter faced the machine, were the. constitutional questions numbered from 1 to 7 inclusive, and at the left of this row Was the word “ Questions.” After" number 7 was a blank space sufficient for the numbers 8, 9 and 10. Immediately following What Would be number 10 in tlie fram'e were placed by the town clerk the four excise questions not numbered, as provided in the statute, but 11, 12, 13 and 14 following in sequence the- numbering 'upon the ballot as provided by the county clerk. The word“ question ” did not immediately precede each excise proposition'and the caption prescribed in the statute and which succinctly stated the pith of the proposition was omitted. The long involved interrogative sentence containing" in detail the- question was Upon the ballot. There was nothing "in this frame or above it to denote whether any of these questions pertained to constitutional amendments, town propositions relative to the raising of money or the excise ’ questions, except as- the voter may have gathered the information necessary to enable him to vote intelligently by reading through each long seiitehce defining the proposition. Number .14, wjlich was designed to cover number 4 of the excise propositions, contained eight lines. The voter, in the time allotted to him, would hardly be able to accomplish the feat of reading these sentences. If he depended for information upon the ballot as it appeared in the machine, he probably would not have acquired it at all. Again, there was no caption or number to indicate the order in which the excise propositions were placed in the machine. For aught the electors may have known, the order prescribed in the statute was not observed.

In order that the confusion may appear which may have befallen the elector, as I view the. case, I recapitulate the situation. The first in the order of events, the voter looked at the cards provided for his instruction, .and which were conspicuously posted, printed in large type and easily legible. He had fixed in his mind the location of the knobs relative to the variohs tickets. He entered the booth expecting to find the knob's at the top of the ballot. They were not, as advertised for his enlightenment, but at the left side as he faced the machine. The questions which were agitating" the public mind, and for or against which he may have intended to have his vote recorded, he understood Were in a column at the right of the ballot. When inside he found they were not as placed on the instruction cards, and ■ may or may not have discovered they were all in a horizontal line at the top of the ballot. If especially interested in the excise propositions he must, before entering the booth, have learned that they were numbered from 1 to'4, each preceded by the word “ Question,” and that a caption was at the head of each question which he comprehended, and which was the keynote to the proposition impressed upon his mind. With the mis^ direction in the ballots by reason of the instruction cards, followed by this marked deviation from the plain wording of section'16 of the Liquor Tax Law (as amd. supra) defining the form of the questions, it certainly is not unreasonable to infer that the electors may have failed to vote as they desired on these four propositions.

It is suggested that the voting machine was in plain view of the electors, and that .they could see its operation. It was only in the elector’s sight when the.Curtain was drawn back, which was when the booth was unoccupied. Access to the machine by the elector was shut off except when he voted and the machine was some distance from him. (Election Law, § 174, added by Laws of 1899, chap. 466.) Jt would’ be difficult for him, "to read the headings of the propositions when outside of the rail even if the curtain were drawn back. He was not expected to remain at the polling place for . any length of timé. He had only one errand and that was to vote, ,

I appreciate.-that the failure to comply literally with every requirement governing, any election should not be seized hold of for the purpose of ..ordering a new submission to the electors of the propositions voted upon. A substantial compliance only is essential, IJnimportant deviations ought not to invalidate the election. But the purpose of an election is to afford an easy opportunity for every elector to cast his vote as he desires and then to» have it honestly counted. In recent years the Legislature in its wisdom has made many changes in the manner of voting. These new methods are - useful in preventing the purchase of votes and insuring secrecy to the v.otér in casting his ballot. The changes are radical and add to the complexity of'the-system. The electorate is composed of the vigorous and the infirm, the educated "and the illiterate, and any • method should be readily within the compass of every voter.. " The elector tries to master these frequent alterations' for he is- jealous of exercising the voting privilege which is the important- attribute of his citizenship. He cannot, acquire the- minute" details,, hut he does, inform himself as to the essentials requisite to enable, him. to perform his obligation^ as a.citizen-. Only once in a year is he expected to furbish up his knowledge and the very infrequency of the elections tends to cause a lapse in his mind of these requirements, A machine of involved mechanism is provided, and while that system . in. a measure assures secrecy and accuracy in recording, the vote, yet-it does tend to confuse the voter irnless. before, he enters "the" boo-th . he has a mental picture of the mode of operating the machine and of the location of the various tickets and propositions which compose the modern ballot. 'Even the most learned bungle in attempting to operate the machine. In order to- render the method within the comprehension, of every one the Legislature has enacted definite requirements easily followed. ■

In the towns the excise propositions often arouse’the most intense interest. Evidently that was true at" the election at Little Valley for on number 4 of the excise propositions 364 votes wére. recorded, and the majority against that proposition was only 8, ' With tlfe confusion that is likely to atúse it is important that those in charge of an election should fairly comply with the provisions of the law which enable a voter to comprehend the various tickets and' propositions upon which he may desire to vote. That was not" observed in the present instance. The manner in which these propositions were placed in' the machine with the significant features decapitated and with the confusing numbers in lieu óf those mentioned in the statute may well justify the claim that the elector either refrained from voting at all or else was misled.

But it is urged with much vigor that there is nothing in the record to indicate that any elector was deceived by this marked departure from the statute, and that affidavits should have been presented showing affirmatively that harm resulted therefrom. The aim of every voting statute is to insure secrecy to the voter. He is not called upon to reveal how he voted upon any proposition. He is" loath to make this disclosure and may be unable to do so. It would be a bad precedent to invite men to poll the electors after an election to ascertain if they failed to comprehend and vote understandingly upon each proposition or ticket in the machine. To" confess want of comprehension is a confession of ignorance in the mind of the average voter. We might as well permit the attorney for the defeated*party in an action at law to obtain the affidavit of each juror setting forth just how he arrived at the verdict and-whether it was entirely acceptable to,him.

In Matter of Town of La Fayette (105 App. Div. 25) there was up for review in this court the effect of the omission of the town clerk to publish in a newspaper at least five days’ notice of the submission of the excise propositions, as required by section 16 of the Liquor Tax Law (as amd. by Laws of 1901, chap. 610). The argument was then urged that no harm was done by the omission. In commenting upon that suggestion this court said (at p. 31): “ It is not a question of disfranchising voters by reason of the neglect of duty of the town clerk, a'nd we think it a dangerous rule to lay down that the town clerk may neglect to-give the notice required' by the plain and express terms of the statute, and then the submission be upheld in the discretion of the court upon affidavits tending to show that really no harm or wrong was done and that the result would not be likely to be changed by a resubmission. The rights of the parties, oh the one side the people, on the other the liquor dealers, should not be made dependent on the discretionary determination of a court upon affidavits, when the. statute , has provided for a determination of such rights by ballot.”

If there has been a violation of the requirements of section 16 of the Liquor Tax Law (as amd. by Laws of 19,05, chap. 680), which it is quite evident was calculated to mislead the elector, a resubmission to the voters might well be ordered, and that principledias prevailed in the decision of the courts. (Matter of O’Hara, 63 App. Div. 512 ; People ex rel. Caffrey v. Mosse, 30 Misc. Rep. 164; Matter of Munson, 95 App. Div. 23.)

But it is contended that the word question ” and. the caption are not a part of the ballot. The form of the question is prescribed with-great particularity in section 16 Of. the Liquor Tax Law (as amd. by Laws of 1905, chap, 680), and'tire caption istim.portant in that it •groups in a terse sentence the gist of the proposition. It is to that which the elector will glance for his information and not the elaborate interrogative query following. T-his caption is made a vital part of fire question. It was not intended th.at.the most-helpful portion of the propositiomshóuld be eliminated, and the voter be obliged to worry through the long inquiry which succeeds.'

The word “ question ” in legal definition does net necessarily mean an interrogative inquiry. It is a proposition, “ something in controversy, or which may be the. subject of controversy.” (2 Bouv. L. Dict. [Rawle’s Rev.] 806.)

The. proposition submitted to the voters by question 4 of section 16 of the Liquor Tax Law, (as amd. supra), is that of “selling liqtior by hotel keepers only,” which is the caption provided by the Legislature and amplified by the interrogative sentence.

It is said no caption preceded the constitutional • amendments. The statute prescribes- none. (See Election Law, § 82, as amd. by Laws of 1901, chap. 598; Id. §§ 167,180, added by Laws of 1899, chap. 466.) The vote on each of these amendments was' very light throughout the State last year, notwithstanding the agitation and apparent interest manifested in them prior to the' election. It was a matter of general comment after the election that the chief reason for the small vote.was that the electors were confused as to the ’form. of the ballot. Had there been a catch phrase preceding each, proposed amendment directing attention to. its import, certainly the voter would have been much aided in comprehending the question. The duplication of the numbers 1, 2, 3, and 4 would not have been misleading for they would have been in each instance in the proper ballot preceded by the word “ Question,” which was not the case in any of the proposed- amendments. Duplication of numbers is, frequent in every ballot.

The distinction between the situation pertaining to the form of the ballots submitting the constitutional amendments and those pursuant to section 16 of the Liquor Tax Law (as amd. supra) is that in the former no law was violated, while in the latter the express terms of the statute in an important feature were disregarded. It seems to be conceded that the law was not observed in the form of these ballots, but it narrows down to the proposition that their misleading purport must, be determined upon affidavits. That is, the secrecy in casting the ballot, so long an influencing factor in our election laws, is to be cast aside, and every" elector may be subjected to the prying attack of the affidavit maker in order that it may be publicly known how he voted and if understandingly. The uncertainty likely to result from that course would thwart ” the will of the People. ' .

This is not a case of the disfranchisement of electors. The Legislature, in providing for .the submission of these questions to the electors .of a town, did not leave the review of the determination to the requirements contained in the Election Law, but section 16 of the Liquor Tax Law (as amd. supra) provides for a resubmission in case the propositions “ shall not have been properly submitted.”

Some aid is sought to be found to sustain the election by general expressions contained in the opinions'in election cases. In People ex rel. Hirsh v. Wood (148 N. Y. 142) the court reviewed an “effort * *_ * to disfranchise innocent voters” on the ground that their ballots were marked. There was no claim of any misleading of the voters or that they failed to appreciate how they were voting. . The court used this language: The intention of the voters * * * is clear and admits- of no doubt,” and its statement that “ the object of elections is to ascertain the popular will and not to thwart it ” is the essence of the suffrage privilege. If, however, it was reasonably probable that the electors were misled and their will “ thwarted” an easy method of remedying that evil is provided in section 16 of the Liquor Tax Law (as amd. .supra), so far as the local option questions are concerned.

In People ex rel. Leonard v. Hamilton (42 App. Div. 212) the vote was (lecisivety against the question 4 submitted pursuant, to section 16 of the Liquor Tax Law-(as amd. by Laws of 1897, chap. 312). The statement of the result .filed with the county treasurer correctly registered the vote, but it was not technically “ a certified copy of the statement of the result of the vote.” Thé relator, a hotelkeeper, applied for the certificate permitting him to traffic in liquors'in his hotel,-which the treasurer refused to issue, and a proceeding was commenced to require him to do so, on the assumption that no proper statement of the result of the Vote had been filed. The validity of the election was not in any way involved. Each of the other cases cited is far and away -from the principle involved in the present -case.

The determination of these local option questions rests with the electors of the town. Their decision, expressed as the law directs, should, of course, prevail. If, however, it appears without controversy that there -were departures in important particulars from the' plain mandates of the statute, and the deduction may very reasonably be ascertained that the will of the electors was not registered, a new election should be ordered. It is better that the propositions should be resubmitted than to have the belief prevalent .aihong a large number of people that the will of a majority of the voters was thwarted, even though that belief is incorrect an,d the integrity of. the officials is, not attacked. In this case there was a clear disregard of important provisions of the law intended to aid the voter, and I think a resnbmission to the electors should be ordered.

The order should be reversed, with ten dollars costs, and the prayer of the petitioner granted, and a special town meeting ordered at which should be resubmitted the four' excise questions pursuant tp section 16 of the Liquor Tax Law (as amd. by Laws of 1905, chap. 680).. ‘

Williams, J., concurred.

Order affirmed,- with ten dollars costs and disbursements. 
      
       See Election Law (Laws of 1896, chap. 909), § 86, as amd. by Laws of 1905, chap. 643—[Rep.
     