
    Joseph D. Kennedy, Plaintiff, v. David C. Warner, Individually and as Town Clerk of the Town of Union, Broome County, New York State, Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, David B. Kind, as County Treasurer of the County of Broome and the Town of Union, Defendants.
    (Supreme Court, Broome Special Term,
    August, 1906.)
    Intoxicating liquors — Local option'—Validity of local election — Petition for submission.
    The requirement that a petition for the submission of the questions relating to local option under section 16 of the Liquor Tax Law (L. 1896, chap. 112) shall be acknowledged, was made with reference to section 255 of the Real Property Law (L. 1896, chap. 547) as well as section 937 of the Code of Civil Procedure and contemplates such an acknowledgment and certificate as is required to entitle deeds of real estate to be recorded.
    The words “ Subscribed and sworn to before me,” with the date and signature of notary public under each of the signatures to a petition for the submission of the questions relating to local option under section 16 of the Liquor Tax Law, do not show a compliance with the requirement of the statute that the petition shall be acknowledged.
    Nor will a petition which contains no request for the submission of one of the questions and refers to the others as. provisions of section 11 of the Liquor Tax Law form a sufficient foundation for the submission of the questions specified in section 16.
    Where, upon such petitions the questions relating to local option have been submitted and voted on adversely, an owner of property in the town, built and used for a saloon and restaurant and leased to a tenant subject to a condition that if during the term it should be voted that traffic in liquors should not be carried on, or, if the county treasurer should refuse a liquor tax certificate, the tenant might terminate the lease, may maintain an action against the State Commissioner of Excise ■ and the county treasurer fpr an injunction restraining them from proceeding in violation oí law and to his prejudice, and that, though he does not sue in behalf of himself and all others interested.
    Action for an injunction restraining tie State Commissioner of Excise and the comity treasurer of Broome county from proceeding to the plaintiff’s prejudice under a vote of the electors of the town of Union upon the question of local option.
    Mangan & Mangan, for plaintiff.
    E. 0. Moody, for David 0. Warner, individually and as town clerk.
    Arthur H. Smith, for State Commissioner of Excise.
    E. E. Carver, for county treasurer of Broome county.
   Sewell, J.

The plaintiff is the owner of a building in the town of Union, built and used for the purposes of a saloon and restaurant. On the 1st day of June, 1903', he leased it for a term of five years, conditioned that, if it should be voted during said term that the traffic in liquors should not be carried on or if the county treasurer should refuse to issue a liquor tax certificate so that the tenant could not legally carry on the traffic at that place, the tenant might terminate the lease.

At the regular town meeting held in the town of Union, in November, 1902, the four questions specified in section 16 of the Liquor Tax Law were submitted to the electors of the town and a majority voted in favor of issuing certificates for selling liquor to be drunk on the premises where sold. Two certificates were thereafter issued to plaintiff’s tenant, the first for a term ending April 30, 1904, and the other for a term ending April 30, 1905.

More than twenty days before the biennial town meeting, held at the time of the general election in the town of Union, on the 8th day of November, 1904, a petition was filed with the town clerk, signed by one hundred and seven persons which were two more than ten per centum of the electors at the next preceding general election.

This petition was acknowledged by only ninety-eight of the persons who signed it. .Attached to and filed with it was another petition which, it is claimed, was signed by one hundred and three electors residing in the village of Lestershire of the town of Union. This petition is not a copy of the other. It does not contain a request for the submission of the second question provided by the statute, and the other questions are therein referred to as provisions of section 11 of the Liquor Tax Law.

There is nothing indorsed upon or attached to this petition which can be called an acknowledgment. There is no certificate stating that the signers of the petition or any of them personally appeared before a notary or other officer, that he knew them to be the persons described in and who executed the instrument, or that they acknowledged that they executed the same.

Immediately under the name of one of the signers, which is separated from the fifty-six names preceding it by a considerable space, are the words “ Subscribed and sworn to before me this 7th day of October, 1904, Wallace Thomson, Kotary Public,” and these words are repeated after the other signatures to the petition.

It appears that the town clerk relied upon these petitions and caused to be printed and posted notices of the fact that the four local option questions would be voted on at the next town meeting, and they were submitted and voted upon, and resulted in the negative with respect to authorizing the sale of liquor to be drunk on the premises where sold.

It is claimed by the plaintiff that there was no power in the town meeting to pass upon any of these questions, and that the vote was ineffective and void for the reason that the petitions were not signed and acknowledged by the requisite number of voters.

The town having, at the biennial town meeting in 1902, decided in favor of issuing liquor tax certificates, another vote could not be taken which might deprive any person of the right secured by the statute, unless it was requested in the manner provided by the statute. By section 16 of the Liquor Tax Law, the questions are to be submitted, “provided the electors of the tovsi to the number of ten per centum of the votes cast at the next preceding general election shall request such submission by written petition, signed and acknowledged by said electors before a notary public or other officer authorized to take acknowledgments or administer oaths.”

This section makes the-filing of a petition, signed and acknowledged by the requisite' number of electors, a condition precedent to a valid submission. It makes the acknowledgment of the petition as essential as the signing. It requires both. Without a petition signed and acknowledged the town officers have no right to submit the questions to the town meeting and the electors have no power to pass upon them. Matter of Eggleston, 51 App. iv. 38 : Matter of Krieger, 59 id. 348.

The statute does not in express terms require that the petition shall be acknowledged and certified in the manner prescribed by law for taking and certifying the acknowledgnient or- proof of a conveyance of real property.

That was not necessary, for section 15 of the Statutory Construction Law provides that the terms acknowledge or acknowledgment, when used with reference to the execution of an instrument in writing other than a deed of real property, includes an acknowledgment before an officer authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk’s office and that it shall be certified in the same manner as such acknowledgment or proof of said deed; and section 255 of the Real Property Law imposes the duty upon an officer taking the acknowledgment or proof of a conveyance to indorse upon or attach'thereto a certificate, signed by himself, stating all the matter required to be done, known or proved on the taking of such acknowledgment or proof.

Obviously the requirement as to the acknowledgment of the petition was enacted with reference to these provisions, as well as section 937 of the Code of Civil Procedure, which provides that any instruments except a promissory note, a bill of exchange, or last will, may be acknowledged or proved and certified in the manner prescribed by law for taking and certifying the acknowledgment of proof of a conveyance of real property, and that the certificate thus taken is to be used in evidence in the same manner and with the same effect as if the instruments were conveyances of real property.

There does not appear to be any good reason for discriminating between a petition under the Liquor Tax Law and other written instruments in regard to acknowledgment for the purpose of evidence;. and there can be no doubt that the Legislature intended that' these provisions should be read into section 16, that there might be some proof of the genuineness of the signatures to the petition and of the other facts relating to its execution, to insure the authenticity, so that it could be safely acted upon. It is manifest, therefore, that in the absence of a certificate the town clerk is not authorized to give notice of the submission of the questions and the electors cannot vote upon them.

Independent of the foregoing, it is difficult to see how this petition can be held to be valid o.- proper, as it does not request the submission of all the questions provided by the statute. The Town Law provides that No proposition or other matter than the election of officers shall be voted upon by ballot at any town meeting ” unless a written application plainly stating _the question ” shall be filed with the town clerk at least twenty days before the town meeting.” Laws of 1890, chap. 569, § 34.

In Matter of Getrnan, 28 Misc. Rep. 451, the petitioner did not request the submission of the four questions provided by the statute and, notwithstanding this defective condition, the town officers prepared ballots for the submission of all four questions to the town meeting, which voted upon them all and against issuing certificates. Judge Hiscock, discussing the effect of such a petition, says: “ There was not the slightest authority for the submission of or vote upon question No. 4, because it was entirely omitted from the petition. Neither, in my judgment, was there any authority for the submission of the questions enumerated in the petition, unless accompanied by a submission of the others prescribed by the statute. Except for the provisions of the statute, there was no power in the town meeting to pass upon these questions, and a substantial compliance with those provisions was necessary to give it jurisdiction. There was not in my opinion such compliance.”

The result of these considerations is that there- was no valid petition; that the questions were not properly submitted to the town meeting, and that the vote and action of the electors were absolutely void.

If I am correct in this conclusion, it would seem that the plaintiff is entitled to relief in some form.

• The remedy for the improper submission is not a resubmission at a special town meeting; neither is it mandamus, as that issues to compel the performance of duties which should have been performed hut which have been neglected. It is equally clear that the validity of an election as to local option cannot be inquired into upon a writ of certiorari.

Notwithstanding the plaintiff did not bring this action in behalf of himself and all others interested, I think this court has jurisdiction to restrain the defendants from proceeding in violation of law and to the prejudice of the individual rights of the plaintiff.

Judgment is, therefore, directed in favor of the plaintiff for the relief demanded in the complaint, without costs.

Judgment for plaintiff, without costs.  