
    Matter of the Application of Frank L. Foster, for a Special Election in the Town of Oakfield, Genesee County, N. Y., Under Section 16 of the Liquor Tax Law.
    (Supreme Court, Erie Special Term,
    February, 1908.)
    Intoxicating liquors — Local option: Validity of local election — Notice of election; Resubmission.
    The provisions of section 16 of the Liquor Tax Law, relating to the submission of local option questions at a town meeting, contemplate a formal notice to be given by the clerk that the questions will be voted on; and where the clerk merely publishes and posts the questions themselves, without notice that they will be voted on, or reference to the election, there is no legal submission of the questions and an application for their resubmission should be granted.
    Application for a resubmission of local option questions under the Liquor Tax Law.
    Watson & Watson, for petitioner.
    Daniel Reed, for State Commissioner of Excise.
    J. B. Scovell, for interveners.
   Pound, J.

The provisions of section 16 of the Liquor Tax Law in reference to notice of the submission of these questions at the town meeting were not literally complied with by the town clerk, as no notice that the local option questions would be vote$ on at the town meeting was published or posted by him. Instead, he merely published and posted the questions themselves, without setting forth the fact that they would be voted on, or making any reference to the election.

The Appellate Division, Fourth Department, in Matter of Town of La Fayette, 105 App. Div. 25, held that a total failure to publish such notice rendered the submission illegal and improper. Justice Williams in the opinion says, “ A failure to comply with these provisions (relative to notice) ought to render the submission illegal and improper,” and is a sufficient reason for ordering the resubmission of the same. He also points out that, in People ex rel. Crane v. Chandler, 41 App. Div. 178, the merits were not necessarily considered; that the case went off on remedial questions merely, and that the discussion of the merits as to the sufficiency of the notice was wholly superfluous. The latter case can no longer be regarded as authority for holding that actual notice to the electors, though informal, may be sufficient.

The decision in the La Payette case contemplates a formal notice to be given by the clerk, stating substantially in the language of the statute that said questions will be voted on,” etc. It is plain that there has been no compliance with the law governing notice in this case. The State Commissioner of Excise concedes that, because of such noncompliance, sufficient reason is shown for ordering that said propositions be submitted at a special town meeting, duly called, as provided by section 16 of the Liquor Tax Law, and it so appears to me.

Ordered accordingly.  