
    (62 Misc. Rep. 334.)
    In re LIVINGSTON.
    (Otsego County Court.
    February 7, 1909.)
    1. Intoxicating Liquobs (§ 32*)—Local Option—Submission op Questions —Petition—Acknowledgment — “Signed and Acknowledged” — “Executed.”
    A certificate of acknowledgment to a petition for a local option election, stating that the signers “executed the above instrument and severally acknowledged the execution of the same,” sufficiently shows that the petition was “signed and acknowledged,” as required by Liquor Tax Law (Laws 1896, p. 57, c. 112) § 16; the word “executed” being an attestation of the fact that the petition was “signed.”
    [Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 32.* • For other definitions, see Words and Phrases, vol. 3, pp. 2558-2561.]
    2. Intoxicating Liquobs (§ 33*)—Local Option—Submission op Questions —Notice.
    A notice that a petition for the submission of local option questions under Liquor Tax Law (Laws 1896, p. 57, c. 112) § 16, has been filed with the town clerk, and that all local option questions provided for in said section will be submitted to the voters on a specified day, is sufficient, though it fails to state that such questions will be voted upon.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 33.]
    Application by Tunis Livingston for an order restraining Frank Taber, acting Town Clerk of the Town of Oneonta, from providing ballots under section 16 of the liquor tax law (Laws 1896, p. 57, c. 112), or delivering the same to the electors of the town to vote upon. Application denied.
    Gibbs, Wilbur & Gibbs, for petitioner.
    W. H. Johnson, for respondent.
    
      
      For other cases see same topic & § number in Dec.,& Am. Digs. 1907 to date, & Rep’r Indexes
    
   KELLOGG, J.

This is an application by the petitioner, Tunis'Livingston, as a resident, elector, and taxpayer of the town of Oneonta, for an order restraining the acting town clerk of said town from submitting the local option questions, as provided by section 16 of the liquor tax law (Laws 1896, p. 57, c. 112), to the electors of said town at the next biennial town meeting, to be held February 9, 1909, upon the grounds: First, that the petition filed requesting such submission is not properly acknowledged as required by law, and as provided by section 16 of said local option law, or the statutes of the state relative to taking acknowledgments, in that the certificate of acknowledgment does not show that it was “signed and acknowledged” before a notary public or other officer authorized to take acknowledgments or administer oaths; second, that while the said acting town clerk attempted to post or cause to be posted notices of election that all the local option questions as provided for in section 16 of the liquor tax law will be submitted to the voters at the ensuing town meeting, the same as posted are illegal and void, in that they do not show a compliance with the said law, and that the said acting clerk has failed to publish a legal and proper notice in a newspaper in said county, as required by section 16 of said law.

The acknowledgment to the petition to which attention is directed states that:

“On the 11th day of January, 1909, before me, the subscriber, personally appeared Grant Green [then follows the names of 57 other signers] to me personally known to be the person described in and who executed the above instrument, and he severally acknowledged the execution of the same.
“[Signed] Frank Taber, Justice of the Peace.”

. It is conceded that the acknowledgment to the petition should be in such language as should be sufficient, on a conveyance of real property, to entitle it to be recorded. It was argued with much force that the acknowledgment in question does not follow the exact language employed in section 16 of the liquor tax law, wherein it states that the acknowledgment should have set forth that it was “signed and acknowledged,” citing, as authority on that proposition, the case of Jackson v. Seeber, 50 Misc. Rep. 479, 100 N. Y. Supp. 563.

The case at bar, however, differs in essential particulars from Jackson v. Seeber above mentioned. In that case no names were recited in the certificate, and merely the fact was stated that the above-named persons appeared before the justice and signed the petition in his presence, nor did it state the persons so signing were known to him, nor did it state that it was acknowledged before him; and it was there held that the omission to state that the petition was acknowledged was a fatal defect. It was conceded upon the argument in that case that the defects to the acknowledgment of that petition were such that it could not be recorded by reason of the failure to state that it was acknowledged.

It is still insisted, however, that the failure to use the word “signed” in connection with the word “acknowledged” is a defect of such importance as to cause this court to grant an injunction order, which will in its effect .prevent the submission to the voters of the town of Oneonta all of the local option questions as provided for in section 16 of the liquor tax law pursuant to this petition. I am not convinced that such is the law, or that such a technical construction was the real intent of the Legislature. The acknowledgment in question states in so many words, after setting forth the name of each in-, dividual signer, as follows, to wit:

“To me personally known to be the same person described in and who executed the above instrument, and he severally acknowledged 'the execution of the same.”

The highest authority may be cited to show that the word “executed,” which is used twice here, is an attestation of the fact that x the petition was signed. The word “executed,” when used, is defined to mean:

“The accomplishment of a thing; the completion of an act or instrument; the fulfillment of an undertaking. Thus a contract is executed when the act to be done is performed; a deed is executed when it is signed, sealed, and delivered.” 1 Bouvier’s Law Dictionary, 554.

It is also urged that, while the acting town clerk attempted to post notices of election as provided for in section 16 of the law in question, such notices are illegal and void, and, are not a compliance with the law. It is contended thát the notice attempting to submit the questions under section 16 of said law to a vote is headed, “Notice of Town Meeting,” and that, while it states that a petition for the submission of local option questions under section 16 of the liquor tax law has been filed with the acting town clerk of the town of Oneonta, N. Y., and notice is hereby given that all of the local option questions as provided for in section 16 of the liquor tax law will be submitted to the voters at the ensuing town meeting, to be held February 9, 1909, it therein fails to state that such questions will be voted upon. I am convinced, after a most careful examination of the authorities, that the objection in itself is insufficient to cause the printing and issuing of the ballots to be voted under section 16 at the election in question to be restrained.

It has been held that the omission of words and that the failure of the town clerk to file a certified copy as required by the act were not fatal, and that a notice of four days, even, was a substantial compliance with the statute. In Matter of Rice, 95 App. Div. 28, 88 N. Y. Supp. 512. It has also been held that a notice that “the license question, as provided by the Raines law, will be submitted to the voters at this town meeting,” was a good and sufficient notice. If that notice was good, then the one here certainly is. People ex rel. Crane v. Chandler, 41 App. Div. 178, 58 N. Y. Supp. 794. The act in question is a public act, and provides what questions and in what manner they shall be submitted, and reference to the law and the subject as contained in the notice, we think, was sufficient.

As remarked in Matter of Rice, supra, there could be no mistake in what was intended, and no one could be misled as to what was asked, or what it was proposed to do under the notice as published and posted. All of the questions to be submitted are accurately set forth, proper reference made to the statute, and notice given that all questions thereunder will be submitted to the voters on a specified date. Where it appeared that there might have possibly been slight errors in the posting and publishing of some notices, the court held a resubmission unnecessary and unjustifiable. In Matter of Woolston, 35 Misc. Rep. 735, 72 N. Y. Supp. 406.

The objections here presented, however, are not to be lightly turned aside, as the legal rights of the parties interested are of the greatest importance. Reasonable legal formality and statutory compliance must be required. The acknowledgment to this petition and the notice given by the acting town clerk under it are not all that could be desired. It has been held that even the most strict requirements of the statute must be met in the attempts to submit the question under section 16 of the liquor tax law to a vote. In Matter of Foster, 57 Misc. Rep. 676, 108 N. Y. Supp. 788; In Matter of Town of La Fayette, 105 App. Div. 25, 93 N. Y. Supp. 534. A careful examination of the cases last above cited discloses the fact that they may be clearly distinguished from the case here presented. In the former, no reference whatever was made to the election itself in the notice, but merely a publication of the questions; in the latter there was an entire failure to comply with the provisions of the law, in that no notice at all was given that the questions permitted to be voted upon under the law were to be submitted to the electors.

Should the petitioner herein deem himself aggrieved after the submission and voting upon the questions permitted under the law, at the biennial town meeting to be held on the 9th day of February, 1909, he has an ample remedy by an action in equity. If too much particularity is required in the enforcement of the provisions of these statutes, then they will in many instances defeat themselves and the will of the people, which is the controlling subject to be safeguarded, will be subverted. The individuals to whom the Legislature has delegated the duty of performing these services are not, in the vast- majority of cases, persons learned in the law, but, as a general proposition, persons of ordinary education and business ability, and this the Legislature knew. In giving judicial interpretation of the law and the sufficiency of compliance with it, these are facts which must be taken into consideration; and where there is substantial compliance with its provisions, and no fraud, concealment, or deception is practiced, the acts of officials should be upheld.

I have reached the conclusion, therefore, that the motion made therein must be denied, but without costs.  