In re O'Hara

Williams, J.:

The order appealed from must be reversed, with costs.

The ground of the application for the writ was that the town clerk did not comply with the statute by posting and publishing notice that the four questions were to be voted upon at the town election.

There was no dispute as to the fact that there was a failure to give such notice, but it is claimed,

First. That the statutory direction to give such notice was directory and not mandatory, and did not render the election upon this subject void.

Second. That no injury resulted from such failure because all the electors were present and voted, and the majority was large, and, therefore, the result should not be disturbed.

Third That mandamus is not the proper remedy.

As to the remedy we are of the opinion that the relief afforded by this order was improper. Mandamus issues to compel the performance of duties which shoiild have been performed, but which were neglected. When the several ballots on local option were presented to the inspectors on election day they were bound to-receive them. They were regular, legal ballots, upon their faces,, and the inspectors had no legal right to reject them because of the" neglect of the town clerk to give the proper notice that local option would be voted upon at that election. The remedy for a failure to-properly submit the question at the town election was the resubmission thereof at a special town meeting duly called (Liquor Tax Law, Laws of 1896, chap. 112, § 16, as amd. by Laws of 1900, chap-367), and if the inspectors had no power to reject the ballots on election day the court had no power thereafter to compel them to recon - vene and reject them. This remedy was employed in the Egglestoncase, cited below, but this question was notconsidered.

Upon the merits we think we are controlled by the case recently decided in this court. (Matter of Eggleston, SI App. Div. 38.)

Ve determined in. that case that the notice must be given as required by the Liquor Tax Law in order to render the election valid, and we must adhere to that rule here. That case was decided tinder the law as it stood prior to the' amendment of 1900, while this case arose since such amendment. The changes, however, are; immaterial upon the question here involved. The law as it stood in. 1899 provided for a resubmission if the first submission was for any reason improper, while the amendment of 1900 provides for a. resubmission if the first submission was, for any reason except failure to file any petition, improper, and the amendment of 1900 also-cured an apparent defect in the old law, by providing that the petition should be filed with the town clerk and he should give the notice. We held in the Eggleston case that under the law as it existed in 1899 the petition should be so filed and notice given. We conclude,, therefore, that the question of local option was not properly submitted at-the town election, but that the mandamus in question was not the proper remedy, and, therefore, the order granting the sam# should be reversed, with costs.

All concurred ; Rumsey, J., in a separate opinion.