
    In the Matter of the Application of John C. Jones for a Resubmission to the Electors of the Town of Westfield, New York, of the Questions of Local Option Under the Liquor Law.
    (Supreme Court, Chautauqua Special Term,
    December, 1909.)
    Intoxicating liquors — Local option: Validity of election — Irregularities not affecting result; Notice of election.
    A vote upon the local option questions should be sustained where there were no such irregularities as to render the result uncertain.
    Notice that the local option questions will be submitted at a special town meeting is a sufficient compliance with section 13 of the Liquor Tax Law which requires notice that such questions will be voted on at the town meeting.
    Where the ballots used in the voting machine bear a caption printed in large type, and the questions are correctly numbered, and each one states precisely the proposition to be voted on, the fact that they erroneously refer to section 'll of the Liquor Tax Law instead of section 8, the correct number, is not a sufficient irregularity to invalidate the vote.
    Application for a special town meeting as provided by section 13 (formerly section 10) of the Liquor Tax Law.
    
      Nugent & Heffernan, for petitioner.
    Daniel A. Reed, for State Commissioner of Excise.
   Marcus, J.

This is a proceeding brought for the purpose of procuring an order of this court directing a resubmission of the local option questions at a special town meeting of the electors of the town of Westfield, N. Y., as provided in the Liquor Tax Law.

The only question to be determined in this proceeding is whether the notice and ballot were sufficient as to form and within the meaning of the Liquor Tax Law, since it appears satisfactorily that the notice was posted and published as required.

The contention of the petitioner seems to be that the notice was insufficient, in that it did not set forth in plain terms, as required by the statute, that the questions would be voted on at the town meeting or general election, and also" that the notice printed in the newspaper was to the effect that “ the four following questions in reference to the Town of West-field under section 16 (now section 13) of the Liquor Tax Law ” would be submitted.

The notices posted and published and complained of in the moving papers state when, where and to whom the four questions would be submitted, specifying that the same were in reference to the town of Westfield under the Liquor Tax Law, and then the questions would follow in the exact language of the Liquor Tax Law.

The notice is really more complete than the statute requires. Mo person could be misled by the notices complained of in this proceeding.

The use of the words “ will be submitted,” instead, of the words “ will be voted on,” is not such a departure from the statute as to warrant the court in ordering a resubmission.

The Liquor Tax Law does not require that the notice shall be in the exact language of the statute. It simply requires the town clerk to “ cause to be printed and posted in at least four public places in such town a notice of the fact that all of the local option questions provided for will be voted on at such town meeting.” The words “will be submitted,” have an accepted and well-defined meaning under the provisions of the Liquor Tax Law.

Section 13 of the Liquor Tax Law provides: “ In order to ascertain the will of the qualified electors of each town, the following questions shall he submitted at each biennial town meeting * * * provided the electors of the'town * * * shall request such submission by written petition,” etc.

The same provision of the Liquor Tax Law provides: “ The town clerk shall, within five days from the filing of such petition in his office, prepare and file in the office of the county clerk of the county a certified copy of such petition, provided the town meeting at which such questions are to be submitted is to be held at the time of the general election.”

It will, therefore, be seen, without reciting the whole section, that the words in controversy are so used in the Liquor Tax Law as to leave no doubt of the meaning as accepted and generally understood. The form of the notice is not mandatory and, therefore, the petitioner having failed to show that there was any fraud or that the result of the election was affected by the alleged irregularity in the form of the notice, no sufficient reason has been submitted to authorize the court in ordering a resubmission of the local option questions.

The only irregularity complained of in the moving papers touching the ballots used in the voting machine is that section 11 of the Liquor Tax Law is referred to in each question instead of section 8. The caption was printed in larg’e type, the questions were correctly numbered and each one stated precisely the proposition to be voted on. So, if the words “ Subdivision 1 of Section 11 ” were eliminated from question one, the meaning and purpose of the question nevertheless would remain clear and certain; and the same is true with reference to each question submitted.' The mention of the incorrect section seems to be due to the change of numbers growing out of the Consolidated Laws; and those numbers may well be treated as surplusage, since the mere number, correctly or incorrectly used, can in no way control the subject-matter of the section itself.

It is not the purpose of the statute to provide an opportunity for those who are interested in the outcome to proceed to vote, without protest as to procedure or conduct on the part of those in charge, and then, when the result is contrary to their expectations, to have another chance.

It should be and is the policy of the statute and the courts to sustain a vote where the irregularities complained of do not render the result uncertain. The resubmission is only authorized where it is impossible to ascertain the true result. There is not the slightest claim made in the moving papers that the alleged defects in the ballots provided by the town clerk rendered the result doubtful or uncertain.

Petition dismissed.  