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 *516authority 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.