The notices and requirements prescribed by the statute antecedent to the election arid designed to obtain a submission of the four local option questions to the electors of the town of Little Valley were complied with. The defects which it is claimed rendered the election illegal arose chiefly out of the failure to meet the obligations pertaining to the submission of the questions on election day. Several irregularities are complained of which I deem unimportant *573on this appeal in that they are only technical departures from the strict letter of the law, or else they have been determined adversely to the appellant upon conflicting facts. I think, therefore, that they did not deceive the elector or prevent the registering of his vote in the way designed by him and that is the aim always to be attained.
The United States Standard voting machine was in use at this election. Instruction cards were posted conspicuously by the inspectors purporting to display the front of the machine, and intended to advise the elector of the method of its use. The pictorial illustrations were not of the machine used at this election, but represented one of a different type. The tickets on the machine in the booth were placed horizontally with the party knobs arranged at the left side of the machine and extending along in a straight line under each other, and the_ spaces for questions were at the top and the pointers as well. In the machine illustrated on the instruction cards the knobs extended perpendicularly from the top to the bottom of the machine and the pointers also followed down through to the bottom of the ballot, one being opposite each name or question. The “ questions ” were also denoted in a perpendicular row at the right of the ballot.
Section 173 of the Election Law (Laws of 1896, chap. 909, added by Laws of 1899, chap. 466, and amd. by Laws of 1901, chap. 530) requires the inspectors to cause at least two instruction cards “ to be posted conspicuously within the polling place.” The object of this requirement is to enlighten and instruct the voter in the use of the mechanism of the machine which is to register his vote. The time lie may spend in the booth is limited to one minute (Election Law, § 175, added by Laws of 1899, chap. 466), and with the natural timidity of the average elector it is important that he learn the method of its operation before he attempts to vote. In the present instance the instruction cards did not teach correctly, but tended to confuse and mystify the elector.
But there" are one or two other violations of the statute enacted to insure the honest expression of the elector’s wish,. which I believe tended to mislead him, and upon which I mainly rest my dissent. Section 16 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1905, chap. 680), prescribes the four *574questions which are to be submitted to the electors of a town in order that they may “ determine Whether liquors shall be sold Under the .provisions of this act.” . The questions are numbered:*» numerical order from 1 to 4, and each contains a caption of a- brief sentence in clear .phraseology indicating the • precise proposition explained at length in the question following the caption. To illustrate, the form of number 4 is — “ Question 4. Selling liquor by hotel beepers Only.” This heading is intended to rivet the attention of the voter to the exact import of the question ,and thus prevent any misconception of its meaning.
The town electionin Little Valley in November, 1905, was held, concurrently with the State, election. The ballots for the various tickets and the constitutional amendments Were provided by tlie county clerk and transmitted to- the' town -clerk of Little: Valley. It then became the duty of that official to provide the ballots for the town propositions, including those, relating to excise conformably to the petition filed with him. (Election Law, § 86, as amd. by Laws of 1905, chap. 643; Matter of Rice, 95 App. Div. 28.)
At the top of the ballots furnished by the county clerk, extending from left, to right as the voter faced the machine, were the. constitutional questions numbered from 1 to 7 inclusive, and at the left of this row Was the word “ Questions.” After" number 7 was a blank space sufficient for the numbers 8, 9 and 10. Immediately following What Would be number 10 in tlie fram'e were placed by the town clerk the four excise questions not numbered, as provided in the statute, but 11, 12, 13 and 14 following in sequence the- numbering 'upon the ballot as provided by the county clerk. The word“ question ” did not immediately precede each excise proposition'and the caption prescribed in the statute and which succinctly stated the pith of the proposition was omitted. The long involved interrogative sentence containing" in detail the- question was Upon the ballot. There was nothing "in this frame or above it to denote whether any of these questions pertained to constitutional amendments, town propositions relative to the raising of money or the excise ’ questions, except as- the voter may have gathered the information necessary to enable him to vote intelligently by reading through each long seiitehce defining the proposition. Number .14, wjlich was designed to cover number 4 of the excise propositions, contained *575eight lines. The voter, in the time allotted to him, would hardly be able to accomplish the feat of reading these sentences. If he depended for information upon the ballot as it appeared in the machine, he probably would not have acquired it at all. Again, there was no caption or number to indicate the order in which the excise propositions were placed in the machine. For aught the electors may have known, the order prescribed in the statute was not observed.
In order that the confusion may appear which may have befallen the elector, as I view the. case, I recapitulate the situation. The first in the order of events, the voter looked at the cards provided for his instruction, .and which were conspicuously posted, printed in large type and easily legible. He had fixed in his mind the location of the knobs relative to the variohs tickets. He entered the booth expecting to find the knob's at the top of the ballot. They were not, as advertised for his enlightenment, but at the left side as he faced the machine. The questions which were agitating" the public mind, and for or against which he may have intended to have his vote recorded, he understood Were in a column at the right of the ballot. When inside he found they were not as placed on the instruction cards, and ■ may or may not have discovered they were all in a horizontal line at the top of the ballot. If especially interested in the excise propositions he must, before entering the booth, have learned that they were numbered from 1 to'4, each preceded by the word “ Question,” and that a caption was at the head of each question which he comprehended, and which was the keynote to the proposition impressed upon his mind. With the mis^ direction in the ballots by reason of the instruction cards, followed by this marked deviation from the plain wording of section'16 of the Liquor Tax Law (as amd. supra) defining the form of the questions, it certainly is not unreasonable to infer that the electors may have failed to vote as they desired on these four propositions.
It is suggested that the voting machine was in plain view of the electors, and that .they could see its operation. It was only in the elector’s sight when the.Curtain was drawn back, which was when the booth was unoccupied. Access to the machine by the elector was shut off except when he voted and the machine was some distance from him. (Election Law, § 174, added by Laws of 1899, *576chap. 466.) Jt would’ be difficult for him, "to read the headings of the propositions when outside of the rail even if the curtain were drawn back. He was not expected to remain at the polling place for . any length of timé. He had only one errand and that was to vote, ,
I appreciate.-that the failure to comply literally with every requirement governing, any election should not be seized hold of for the purpose of ..ordering a new submission to the electors of the propositions voted upon. A substantial compliance only is essential, IJnimportant deviations ought not to invalidate the election. But the purpose of an election is to afford an easy opportunity for every elector to cast his vote as he desires and then to» have it honestly counted. In recent years the Legislature in its wisdom has made many changes in the manner of voting. These new methods are - useful in preventing the purchase of votes and insuring secrecy to the v.otér in casting his ballot. The changes are radical and add to the complexity of'the-system. The electorate is composed of the vigorous and the infirm, the educated "and the illiterate, and any • method should be readily within the compass of every voter.. " The elector tries to master these frequent alterations' for he is- jealous of exercising the voting privilege which is the important- attribute of his citizenship. He cannot, acquire the- minute" details,, hut he does, inform himself as to the essentials requisite to enable, him. to perform his obligation^ as a.citizen-. Only once in a year is he expected to furbish up his knowledge and the very infrequency of the elections tends to cause a lapse in his mind of these requirements, A machine of involved mechanism is provided, and while that system . in. a measure assures secrecy and accuracy in recording, the vote, yet-it does tend to confuse the voter irnless. before, he enters "the" boo-th . he has a mental picture of the mode of operating the machine and of the location of the various tickets and propositions which compose the modern ballot. 'Even the most learned bungle in attempting to operate the machine. In order to- render the method within the comprehension, of every one the Legislature has enacted definite requirements easily followed. ■
In the towns the excise propositions often arouse’the most intense interest. Evidently that was true at" the election at Little Valley for on number 4 of the excise propositions 364 votes wére. recorded, and the majority against that proposition was only 8, ' With *577tlfe confusion that is likely to atúse it is important that those in charge of an election should fairly comply with the provisions of the law which enable a voter to comprehend the various tickets and' propositions upon which he may desire to vote. That was not" observed in the present instance. The manner in which these propositions were placed in' the machine with the significant features decapitated and with the confusing numbers in lieu óf those mentioned in the statute may well justify the claim that the elector either refrained from voting at all or else was misled.
But it is urged with much vigor that there is nothing in the record to indicate that any elector was deceived by this marked departure from the statute, and that affidavits should have been presented showing affirmatively that harm resulted therefrom. The aim of every voting statute is to insure secrecy to the voter. He is not called upon to reveal how he voted upon any proposition. He is" loath to make this disclosure and may be unable to do so. It would be a bad precedent to invite men to poll the electors after an election to ascertain if they failed to comprehend and vote understandingly upon each proposition or ticket in the machine. To" confess want of comprehension is a confession of ignorance in the mind of the average voter. We might as well permit the attorney for the defeated*party in an action at law to obtain the affidavit of each juror setting forth just how he arrived at the verdict and-whether it was entirely acceptable to,him.
In Matter of Town of La Fayette (105 App. Div. 25) there was up for review in this court the effect of the omission of the town clerk to publish in a newspaper at least five days’ notice of the submission of the excise propositions, as required by section 16 of the Liquor Tax Law (as amd. by Laws of 1901, chap. 610). The argument was then urged that no harm was done by the omission. In commenting upon that suggestion this court said (at p. 31): “ It is not a question of disfranchising voters by reason of the neglect of duty of the town clerk, a'nd we think it a dangerous rule to lay down that the town clerk may neglect to-give the notice required' by the plain and express terms of the statute, and then the submission be upheld in the discretion of the court upon affidavits tending to show that really no harm or wrong was done and that the result *578would not be likely to be changed by a resubmission. The rights of the parties, oh the one side the people, on the other the liquor dealers, should not be made dependent on the discretionary determination of a court upon affidavits, when the. statute , has provided for a determination of such rights by ballot.”
If there has been a violation of the requirements of section 16 of the Liquor Tax Law (as amd. by Laws of 19,05, chap. 680), which it is quite evident was calculated to mislead the elector, a resubmission to the voters might well be ordered, and that principledias prevailed in the decision of the courts. (Matter of O’Hara, 63 App. Div. 512 ; People ex rel. Caffrey v. Mosse, 30 Misc. Rep. 164; Matter of Munson, 95 App. Div. 23.)
But it is contended that the word “ question ” and. the caption are not a part of the ballot. The form of the question is prescribed with-great particularity in section 16 Of. the Liquor Tax Law (as amd. by Laws of 1905, chap, 680), and'tire caption istim.portant in that it •groups in a terse sentence the gist of the proposition. It is to that which the elector will glance for his information and not the elaborate interrogative query following. T-his caption is made a vital part of fire question. It was not intended th.at.the most-helpful portion of the propositiomshóuld be eliminated, and the voter be obliged to worry through the long inquiry which succeeds.'
The word “ question ” in legal definition does net necessarily mean an interrogative inquiry. It is a proposition, “ something in controversy, or which may be the. subject of controversy.” (2 Bouv. L. Dict. [Rawle’s Rev.] 806.)
The. proposition submitted to the voters by question 4 of section 16 of the Liquor Tax Law, (as amd. supra), is that of “selling liqtior by hotel keepers only,” which is the caption provided by the Legislature and amplified by the interrogative sentence.
It is said no caption preceded the constitutional • amendments. The statute prescribes- none. (See Election Law, § 82, as amd. by Laws of 1901, chap. 598; Id. §§ 167,180, added by Laws of 1899, chap. 466.) The vote on each of these amendments was' very light throughout the State last year, notwithstanding the agitation and apparent interest manifested in them prior to the' election. It was a matter of general comment after the election that the chief reason for the small vote.was that the electors were confused as to the ’form. *579of the ballot. Had there been a catch phrase preceding each, proposed amendment directing attention to. its import, certainly the voter would have been much aided in comprehending the question. The duplication of the numbers 1, 2, 3, and 4 would not have been misleading for they would have been in each instance in the proper ballot preceded by the word “ Question,” which was not the case in any of the proposed- amendments. Duplication of numbers is, frequent in every ballot.
The distinction between the situation pertaining to the form of the ballots submitting the constitutional amendments and those pursuant to section 16 of the Liquor Tax Law (as amd. supra) is that in the former no law was violated, while in the latter the express terms of the statute in an important feature were disregarded. It seems to be conceded that the law was not observed in the form of these ballots, but it narrows down to the proposition that their misleading purport must, be determined upon affidavits. That is, the secrecy in casting the ballot, so long an influencing factor in our election laws, is to be cast aside, and every" elector may be subjected to the prying attack of the affidavit maker in order that it may be publicly known how he voted and if understandingly. The uncertainty likely to result from that course would “ thwart ” the will of the People. ' .
This is not a case of the disfranchisement of electors. The Legislature, in providing for .the submission of these questions to the electors .of a town, did not leave the review of the determination to the requirements contained in the Election Law, but section 16 of the Liquor Tax Law (as amd. supra) provides for a resubmission in case the propositions “ shall not have been properly submitted.”
Some aid is sought to be found to sustain the election by general expressions contained in the opinions'in election cases. In People ex rel. Hirsh v. Wood (148 N. Y. 142) the court reviewed an “effort * *_ * to disfranchise innocent voters” on the ground that their ballots were marked. There was no claim of any misleading of the voters or that they failed to appreciate how they were voting. . The court used this language: “ The intention of the voters * * * is clear and admits- of no doubt,” and its statement that “ the object of elections is to ascertain the popular will and not to thwart it ” is the essence of the suffrage privilege. If, however, it *580was reasonably probable that the electors were misled and their will “ thwarted” an easy method of remedying that evil is provided in section 16 of the Liquor Tax Law (as amd. .supra), so far as the local option questions are concerned.
In People ex rel. Leonard v. Hamilton (42 App. Div. 212) the vote was (lecisivety against the question 4 submitted pursuant, to section 16 of the Liquor Tax Law-(as amd. by Laws of 1897, chap. 312). The statement of the result .filed with the county treasurer correctly registered the vote, but it was not technically “ a certified copy of the statement of the result of the vote.” Thé relator, a hotelkeeper, applied for the certificate permitting him to traffic in liquors'in his hotel,-which the treasurer refused to issue, and a proceeding was commenced to require him to do so, on the assumption that no proper statement of the result of the Vote had been filed. The validity of the election was not in any way involved. Each of the other cases cited is far and away -from the principle involved in the present -case.
The determination of these local option questions rests with the electors of the town. Their decision, expressed as the law directs, should, of course, prevail. If, however, it appears without controversy that there -were departures in important particulars from the' plain mandates of the statute, and the deduction may very reasonably be ascertained that the will of the electors was not registered, a new election should be ordered. It is better that the propositions should be resubmitted than to have the belief prevalent .aihong a large number of people that the will of a majority of the voters was thwarted, even though that belief is incorrect an,d the integrity of. the officials is, not attacked. In this case there was a clear disregard of important provisions of the law intended to aid the voter, and I think a resnbmission to the electors should be ordered.
The order should be reversed, with ten dollars costs, and the prayer of the petitioner granted, and a special town meeting ordered at which should be resubmitted the four' excise questions pursuant tp section 16 of the Liquor Tax Law (as amd. by Laws of 1905, chap. 680).. ‘
Williams, J., concurred.
Order affirmed,- with ten dollars costs and disbursements.