
    In the Matter of the Application of John B. O’Hara for a Writ of Mandamus. John G. Langham and Others, Constituting the Board of Inspectors of Election of the Town Election held in the Town of Fleming, Cayuga County, N. Y, February 19, 1901, Appellants; John B. O’Hara, Respondent.
    
      Local option — a failure of the cleric to post notice renders the submission void— the. remedy is. to call a special town meeting.
    
    The failure of a town clerk to post .and publish notice that the local option questions would be submitted to -the electors of the town at the town, election as required by section 16 of the Liquor Tax Law (Laws of 1896, chap. 113, as amd. by Laws-of 1900, chap. 367) renders the'subinissiori void.
    
      The proper practice in such a case is to resubmit such questions at a special town meeting called pursuant to said act, and not to issue a writ of mandamus requiring the board of inspectors of election to reconvene and to reject all ballots received by them for or against the questions.
    Appeal by John G. Langham and others, constituting the board of inspectoi’s of election of the town election- held in the town of Fleming, Cayuga county, 1ST. Y., February 19, 1901, from an order of the Supreme Court, made at the Cayuga Special Term and entered in the office of the clerk of the county of Cayuga on the 29th day of April, 1901, granting a peremptory writ of mandamus requiring them to reconvene and reject all ballots received by them for and against the four propositions provided for by the Liquor Tax Law of the State, and to certify such rejection and file the same with the town clerk of the town, and requiring the town clerk to file such statement in his office and to cancel the former certificate on the subject and to file certified copies of such new certificate in the offices of the State Commissioner of Excise and the county treasurer of Cayuga county, and also a statement showing the cancellation of the former certificate.
    
      Fra/nh F. Oady and Robert L. Drummond, for the appellants.
    
      Frank M. Leary, for the.respondent-.
   Williams, J.:

The order appealed from must be reversed, with costs.

The ground of the application for the writ was that the town clerk did not comply with the statute by posting and publishing notice that the four questions were to be voted upon at the town election.

There was no dispute as to the fact that there was a failure to give such notice, but it is claimed,

First. That the statutory direction to give such notice was directory and not mandatory, and did not render the election upon this subject void.

Second. That no injury resulted from such failure because all the electors were present and voted, and the majority was large, and, therefore, the result should not be disturbed.

Third That mandamus is not the proper remedy.

As to the remedy we are of the opinion that the relief afforded by this order was improper. Mandamus issues to compel the performance of duties which shoiild have been performed, but which were neglected. When the several ballots on local option were presented to the inspectors on election day they were bound to-receive them. They were regular, legal ballots, upon their faces,, and the inspectors had no legal right to reject them because of the" neglect of the town clerk to give the proper notice that local option would be voted upon at that election. The remedy for a failure to-properly submit the question at the town election was the resubmission thereof at a special town meeting duly called (Liquor Tax Law, Laws of 1896, chap. 112, § 16, as amd. by Laws of 1900, chap-367), and if the inspectors had no power to reject the ballots on election day the court had no power thereafter to compel them to recon - vene and reject them. This remedy was employed in the Egglestoncase, cited below, but this question was notconsidered.

Upon the merits we think we are controlled by the case recently decided in this court. (Matter of Eggleston, SI App. Div. 38.)

Ve determined in. that case that the notice must be given as required by the Liquor Tax Law in order to render the election valid, and we must adhere to that rule here. That case was decided tinder the law as it stood prior to the' amendment of 1900, while this case arose since such amendment. The changes, however, are; immaterial upon the question here involved. The law as it stood in. 1899 provided for a resubmission if the first submission was for any reason improper, while the amendment of 1900 provides for a. resubmission if the first submission was, for any reason except failure to file any petition, improper, and the amendment of 1900 also-cured an apparent defect in the old law, by providing that the petition should be filed with the town clerk and he should give the notice. We held in the Eggleston case that under the law as it existed in 1899 the petition should be so filed and notice given. We conclude,, therefore, that the question of local option was not properly submitted at-the town election, but that the mandamus in question was not the proper remedy, and, therefore, the order granting the sam# should be reversed, with costs.

All concurred ; Rumsey, J., in a separate opinion.

Rumsey, J. (concurring):

This case was decided at the Special Term, where the order was granted upon the authority of Matter of Eggleston (51 App. Div. 38), decided by this department at the April term, 1900, where the same relief was granted with respect to another town. So far as that case construes the Liquor Tax Law, it must be followed by this court, and I not only have no desire not to follow it, but I think it is right. But I do not see just where the court gets the power to require a town board to meet and reject ballots. That question is not discussed or examined in the Eggleston case, and it seems to me that it is a matter of so great importance that that case should not be followed without a careful examination of the question.

It is undoubtedly the rule that a writ of mandamus should not be granted where the defendants have no authority to do the act, then, performance of which is sought to be compelled. (People v. Supervisors of Greene Co., 12 Barb. 217.) I am not aware of any authority granting to town boards, or to any other canvassing board, the right to reject ballots cast at an election, unless upon their face they appear to be void, and even in that case their action is subject to review by the courts. But where the ballots are regular in form and have been properly cast, and are found in the ballot box, I am not aware of any authority in the town board to refuse to canvass them. It is none of them business whether the preliminaries to the question voted upon have been properly taken or not. If they find the ballots in the box they are bound to count them if they are regular in form, and the question whether they are effectual to carry out the wishes of the electors is one to be decided by another authority than they.

The duty of the canvassers under the Town Law is prescribed by section 37 of that law. It directs the canvassers to canvass the votes publicly, and before opening them they must be compared with the poll list, and the like proceedings shall be had as to ballots foldec together and differing in number, as are prescribed in the Genera' Election Law. (1 Heydecker Gen. Laws, 1414.) Those proceeding, are to be found in section 110, subdivision 1, of the General Election Law. (1 Heydecker Gen. Laws, 381.) The requirements as to the canvass of the votes are found in section 110, subd. 3, page 385 of the volume aforesaid. Nowhere are the canvassers given any authority to refuse to count any ballot, but they are required to count every one, and preserve them.

Neither is any power to reject ballots given them by section 16 of the Liquor Tax Law, which provides for the submission of these .questions to the electors of the towns. It is manifest that any power given to the canvassers to reject ballots, on their face correct, on the ground merely that a required preliminary notice had not been given by the proper official would be exceedingly dangerous, and would put it in their power to absolutely control the right of suffrage. If the Secretary of State should not issue such instructions as might seem to a board of canvassers to be fit, they might refuse to count any of the ballots cast for Governor of the State and thus defeat the will of the voters. .

It is quite clear to nay mind that any order of the court which recognizes such a right should be based upon some express provision of the statute, and no such power should be put into the ■ hands of tho canvassers of the votes of a town unless the statute requires it. For this reason, while I think the Eggleston case is undoubtedly the law so far as it says that these questions were not properly submitted to the electors, and, therefore, that the town'has failed to determine whether any certificates should be granted or not, yet I do not think that it is within the power of the court by mandamus to require the town board to meet and reject these ballots.

For these reasons I think that the Eggleston case should not be followed in this respect, and for that reason alone the order should be reversed.

Order granting writ of mandamus reversed and motion denied, with fifty dollars costs and disbursements.  