In re O'Hara

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 (1) that the statutory direction to give such notice was directory, and not mandatory, and did not render the election upon this subject void; (2) 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; (3) 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 should 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 (Laws 1900, c. 367, § 16), and, if the inspectors had no power to reject the ballots on election day, the court had no power thereafter to compel them to reconvene and reject them. This remedy was employed in the Eggleston Case, cited below, but this question was not considered.

Upon the merits we think we are controlled by a case recently decided in this court. In re Eggleston, 51 App. Div. 38 , 64 IT. Y. Supp. 471. We 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 under 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 the 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

(concurring).

This case was decided at the special term, where the order was granted upon the authority of In re Eggleston, 51 App. Div. 38 , 64 N. Y. Supp. 471 , decided by this department at the April termL 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 their 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 their 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 folded together and differing in number as are prescribed in the general election law. 1 Heydeeker’s Gen. Laws, p. 1414. Those proceedings are to be found in section 110, subd. 1, of the general election law. Id. p. 382. The requirements as to the canvass of the votes are found in section 111, p. 386, of the volume aforesaid. Nowhere are the canvassers. given any authority 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