The question presented on this appeal is whether the filing in the town clerk’s office of the petition required by section 16 of the Liquor Tax Law is indispensable to a submission of the four ques-. tions specified in that section to the electors of the town.
This question has been answered in the affirmative in an able and exhaustive opinion of this court in the fourth department. (Matter of Eggleston, 51 App. Div. 38.)
Section 16 of the Liquor Tax Law requires the submission of the four questions therein specified to the electors of the town at the first town meeting occurring after March 23,-1896. ' This provision, is clearly mandatory. That section further provides that “The-same questions shall be again submitted in the same way at the town meeting held in every second year thereafter, provided the electors of the town to the number of ten per centum of votes cast at the next preceding general election shall, by a written petition, signed and acknowledged by such electors before a notary public of other person authorized to take acknowledgments or administer oaths, and filed twenty days before such town meeting with the officer charged with the duty of furnishing ballots for the election, request such, submission.”
This clearly makes the filing of the petition a condition precedent to the resubmission of those questions.
It was evidently the intention of the statute that at the first town meeting held after the passage of the act the will of the qualified electors of each town should be ascertained upon the four local option questions, and that in every second year thereafter an oppor-r tunity should be afforded for the expression of such will, provided *349the petition required by the statute had been duly filed. In the absence of such a petition there can be no valid submission of these questions.
The manifest purpose of the Legislature in requiring the petition to be filed in the office of the clerk of the town was so that officer might give the notice required by section 34 of the Town. Law to be given by him, and through such publicity a full expression of the will of the electors might be secured.
The respondent claims that the result of the vote on these questions at the election on November 7, 1899, is indicative of the want ■of publicity which the statute was designed to give; but whether or not this claim is correct is not here material, as the submission of the questions without the filing of the petition is invalid regardless of the result.
But I am of opinion that the order appealed from was erroneously granted, for the reason that when the application therefor was made section 16 of the Liquor Tax Law had been amended by chapter 367 of the Laws of 1900, which' went into effect April 10, 1900. The provision of said section for a special town meeting is ■as follows : “ If for any reason, except the faibwe to file cmy petition therefor, the four propositions provided to be submitted herein to the electors of a town shall not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called. But a special town meeting ■shall only be called upon filing with the town clerk the petition aforesaid, and an order of the Supreme or County Court, or a justice or judge thereof, respectively, which shall be granted upon sufficient reason being shown therefor.” This was the only authority then existing for an order of the court directing a special town meeting to be held, and it will be observed that this case is within the exception of that provision. Here there was a failure to file a petition in the town clerk’s office, and the filing, as herein held by us, in the county clerk’s office was a nullity.
The order appealed from should, therefore, be reversed.
All concurred.
Order reversed, with ten dollars costs and disbursements.