#### The People ex rel. John C. Barth, Relator, *v.*The Board of Town Canvassers of the Town of Busti, The Board of Inspectors of Election District No. 1, and The Board of Inspectors of Election District No. 2 in Said Town, Respondents.

(Supreme Court, Chautauqua Special Term,

July, 1900.)

1. Liquor Tax Law — Invalid election as to local option—Not a matter which, a citizen can attack.

A mere stockholder in, and the manager of, a hotel corporation, selling liquor to its guests, has no status to question the validity of a town election, held in the town where the hotel is situated and de*124ciding against local option, where the corporation itself is not a party to the proceeding, as such a matter is not within the rule of law which authorizes a proceeding to be prosecuted by any citizen having an interest, as one of the public, in the performance, by a .public officer, of a. public duty which ought to be performed in the interest of the public.

3. Same — Remedy by mandamus to canvassers and inspectors.

*Semble,*that where a person has sufficient standing to attack an invalid town election authorizing local option, he is entitled to a mandamus compelling the canvassers and inspectors to reconvene and reject the ballots cast upon that question. The remedy of a special election provided in such case by the Liquor Tax Law is not adequate, as it depends upon the co-operation, by petition, of ten per cent, in number of the electors of the town according to the vote cast at the next preceding general election, and also upon an order of the Supreme or County Court.

3. Same — Defects in procedure.

*Semble,*that an election as to local option is void where there was a failure to comply with such provisions of the Election Law and of the Town Law as are applicable thereto, and where the petition itself was insufficient under the Liquor Tax Law.

Application by the relator for a writ of peremptory mandamus requiring the above named boards of inspectors and boards of town canvassers to reconvene and reject all votes cast in said election districts upon the subject of local option at the election of November 7, 1899.

Wentworth & Wentworth and Norman M. Allen, for motion.

Frank Stevens, opposed.

White, J.

The relator, John C. Barth, is the owner of 125 out of the whole 150 shares of the capital stock of the Lakewood Hotel & Land Company, a domestic corporation that owns two hotels in the said town of Busti; these hotels entertain from 800 to 400 guests during the summer season, many of whom are accustomed to the use of wines and liquors, and who would not patronize the hotels if they were not licensed.

*125The biennial town meeting of the town of Busti was held November *7,*1899, at the same time as the general election in that year. There are two election districts in said town, and at said town meeting the four excise propositions, or questions, provided for by section 16 of the Liquor Tax Law were voted upon by the electors of said town at said town meeting.

The ballot furnished to and used by such electors in voting upon such questions was in form an official ballot under the Election Law of the' State, containing upon its face not only the four excise, or local option, questions, but the four questions upon the then proposed four constitutional amendment questions submitted to the voters of the State at said general election. The ballot was furnished by the clerk of the county. No other ballot was used by the electors of the town in voting upon the local option questions.

The vote upon the questions (four) whether hotels in said town should he licensed, resulted in favor thereof, 113, and against the proposition, 228.

A few days prior to October 18, 1899, the town clerk of Busti received three several petitions signed, the first, by twenty-two individuals representing themselves to be duly qualified voters of said town, the second, by sixteen, and the third by seventeen individuals representing themselves to be duly qualified voters of said town, asking that said clerk cause to be procured ballots for the town meeting to be held in said town November *7,*1899, for the purpose of submitting to the voters of said town, according *to*articles 1, 2, 3, and 4 of section 19 of chapter 112 of the Laws of 1896, pertaining to the liquor question.

The signing of the first of said petitions was acknowledged by the persons named in and who subscribed it, before A. P. Simons, a notary public, on the 25th, 27th, and 30th days of September, 1899.

At the foot of the second of said petitions, which is dated September twenty-sixth and twenty-seventh, is the following clause:

*“*We, the above named legal voters of the town of Busti, did, on the above named dates, subscribe our names to the above petition for the purpose set forth therein.

*“*Sworn to before me this 27th day of September, 1899.

> “ J. P. Alexander, J. P.”

*126A certificate of the acknowledgment of the third of said petitions in due form by the persons signing the same is made by H. N. Brown, a justice of the peace in said town of Busti.

On the 18th day of October, 1899, the clerk of Busti filed said petitions with, and in the office of the clerk of Chautauqua county; no copies thereof thereafter remained with, or in the office of, the clerk of the town.

No notice of any kind was given or posted by the town clerk that such local option questions would be voted upon at the' election of November 7, 1899. No separate ballot-boxes were provided or used for the reception of the local option ballots. The Lakewood Hotel *&*Land Company had a license for its said hotels which expired April 30, 1900. Such license was in the name of Morris Partridge, as the manager of said hotels. It was stated by the counsel for the respondents upon the argument, and not controverted by the counsel for the relator, that the relator keeps and operates said hotels as the agent or manager of the corporation, and such seems to be a fair inference from Barth’s own statement of the facts. The relator’s claim and statement in the moving papers is that he, as an individual, is entitled to such license, and that the company has authorized him to make this application.

The existence and rights of a township are recognized, and as yet remain zealously guarded, by law. In matters purely local the will of its electors, when lawfully expressed, is supreme. In giving expression thereto, of course, all essential requirements of the law must be observed and complied with.

The first question raised upon the argument of this motion is whether or not a clear legal right possessed by the relator was infringed or prejudiced by the election in Busti, and the result thereof as declared, assuming such election to have been illegal.

This application for a mandamus is made by John C. Barth, as an individual. The hotel corporation is not in any way a party to the proceeding. The statement that the hotel company has authorized him to make it in no way effects his status in the proceeding. No facts are stated from which it can be inferred that, as an individual, he would be entitled to a license for the hotels. Upon the argument it was stated by counsel for the respondents, and not controverted by counsel for the relator, that, in fact, he is keeping and operating the hotels as agent for the corporation, and not otherwise, and such is the only fair inference from the moving *127papers. Assuming then that, hut for the adverse vote on the local option questions at the election of 1899, the hotel company would he entitled to a license, and that its right in that regard is infringed and prejudiced by the said vote and its result as declared, it does not follow that because the relator is a stockholder in the company, he, as an individual, has been injured in such a way as to justify the court in granting the writ asked for. The rights of a corporation in such a case as this to have a writ of mandamus issue, if it exists, cannot be vindicated by a stockholder acting in his own name as an individual, and without making the corporation a party to the proceeding.

The case at bar is not within the rule of law which authorizes the proceeding to be prosecuted by any citizen having an interest, as one of the public, in the performance of a duty by a public officer, which act is public in its nature and ought to he compelled in the interest of the public generally.

It seems to be clear, therefore, that no clear legal right of the relator has been violated or affected by the adverse vote in question, even though it were illegal.

The respondents contend that mandamus is not the proper remedy, even though the vote in question of November 7, 1899, was illegal and the relator shows himself entitled to relief from the result as declared.

The claim in that behalf being that another adequate and effectual remedy is given by the Liquor Tax Law itself by the provision therein that if for any reason the four local option questions shall not have been properly submitted at a town meeting, .such questions shall thereafter be submitted to the voters at a special town meeting to be called upon a petition signed and acknowledged by at least ten per centum in number of the electors of the town according to the vote east at the next preceding general election, followed by an order that such special town meeting be held, made by the Supreme or County Court, or a judge or justice thereof; and the case of People ex rel. Caffrey v. Mosso, 30 Misc. Rep. 164; 63 N. Y. Supp. 585, is cited as an 'authority to that effect.

It hardly seems to me that the provision of the Liquor Tax Law above referred to can properly be termed a “ remedy ” in the sense in which the word is used in its application to the writ of mandamus, when it is said that mandamus will not issue where *128another remedy exists. Such other remedy must be one available to the injured party without reference to his ability to get his neighbors to join in a petition for its redress; it must be a plain, speedy, adequate and specific remedy in the ordinary course of the law. Assuming that the relator has a clear legal right which was violated by the votes and the declared result in question, and that he has a standing in court to prosecute this proceeding, it. would seem ridiculous to say that the enforcing of the right must be made to depend upon whether he could get enough of his neighbors to join in a petition and in an application „to a judge or court for the special election provided for by the Liquor Tax Law. As a remedy to right a wrong such a proceeding would not answer the purpose of the law. If the facts justified the relator in invoking any remedy in this proceeding, mandamus would be proper. Section 114 of the Election Law, which provides, among other things, that mandamus may issue within twenty days after the result of the election is declared, etc., commanding a recount and the exclusion of certain ballots, and that boards of inspectors and canvassers shall continue in office for the purpose of such proceedings, seems to be applicable solely to proceedings by defeated candidates for office, and therefore, not applicable to the proceedings at bar.

The personnel of the boards of inspectors and canvassers, who are the respondents in this proceeding, is not the same as of those boards which counted, certified to, canvassed the vote, and declared the result upon the local option questions involved in this proceeding. The functions of those boards, as they were constituted at the time of the election in Busti in 1899, ceased upon-the election and qualification of the individuals now composing said boards, and the old boards not having been continued in office for the purpose of such an application as this, by any statutory provision, are *functus officio,*and cannot now be called upon to perform a duty which devolved upon them while they were in existence. Nor can the new board be called upon to perform duties which were never imposed upon it by law.

It appears that a large majority of the qualified electors of Busti, who voted at the election of 1899, and the presumption is that all of them voted, are opposed to the granting of licenses in that town; that no effort was made to resubmit the local option question pursuant to the provision of the Liquor Tax Law; that *129in consequence of an amendment to it passed April 13, 1900, it would now be impossible for the said town to effectually prevent the granting of licenses therein prior to May 1, 1901, by any action that the electors, or any one of them, were ignorant of the fact that such questions were to be, and were being, voted upon at the election. Under the circumstances to nullify the result, if the court has the power to do so, would be inequitable.

Realizing that a court of review may differ from the conclusions to be drawn from what has already been said, and may be said, concerning one or more of the questions thus far discussed and other propositions involved in this application, it is thought best to consider briefly the legality of the results of the election of 1899, touching local option in Busti.

As to the local option questions submitted to and voted upon by the electors of Busti in 1899, it- was necessary by the terms of the Town Law that the town officers or other persons entitled to demand a vote thereon should have filed with their town cleric a written application plainly stating the questions they desired to have voted upon and requesting a vote thereon to be held November 7, 1899, at least twenty days before that day. The town clerk should have given at least ten days’ notice, posted conspicuously in at least four of the most public places in the town, of those proposed questions, and that a vote would be taken upon them at that town meeting. He should have prepared a ballot-box properly labelled, briefly indicating the questions to be voted upon, in which all ballots voted upon those questions should have been deposited. He should have prepared and have had at that town meeting a sufficient number of ballots, both for and against those questions, for the use of the electors. The State Election Law made it the duty of the county clerk, instead of the town clerk, to furnish the ballots for the local option questions; and the Liquor Tax Law so modified or supplemented the Town Law as to make it incumbent upon the town clerk of Busti to perform the duties above mentioned, only in case the electors of the town to the number of ten per centum of the votes cast at the next preceding general election had, by a written petition signed and acknowledged by such electors before a notary public or other person authorized to take acknowledgments or administer oaths, and such petition was filed with him twenty days before November 7, 1899, requesting such submission of said local option ques-*130tions. It cannot be justly claimed that such a petition as the Liquor Tax Law provides for was signed, acknowledged, or filed with the town clerk. A petition was signed by fifty-five individuals, who say in their petition that they are electors of said town, seventeen of whom acknowledged before a justice of the peace that they executed the petition. As to the other thirty-eight, there is nothing that can properly be termed an acknowledgment such as is required to deeds of. conveyance to entitle them to be recorded, as required by law. There is no evidence that fifty-five is ten per centum of the number of votes cast in the town at the next preceding general election; the petition was filed with the town clerk about October 18, 1899, and removed from his own office to that of the county clerk about the same date. The town clerk gave no notice of any kind concerning the submission of the local option questions; he prepared no ballot nor any separate box for the reception of those ballots, nor was there any such separate ballot or box provided by any one. The local option propositions'as submitted and voted upon were furnished by the county clerk 'on a ballot official under the general Election Law in form, which had upon it the four proposed constitutional amendments submitted to the people of the State at said election. There was an utter and almost total failure to comply with the law in submitting those local option questions, from start to finish.

It is claimed by counsel for the State Excise Department, who-by courtesy took part in the argument on this motion, that the provisions of the statute thus ignored and violated are directory only and not mandatory; that an apparently full and fair vote having been had the result is conclusive as to its legality.

I am of the opinion that at least the provisions of the statute requiring the initial step to be taken to secure the submission of the questions to the electors of the town according to the votes cast at the next preceding general election is one of substance and mandatory, and the petition in this case not having been in compliance with the statute, all proceedings based upon it would beheld irregular and void, if the question had been properly raised in due time.

The motion for a writ of mandamus should be denied, with ten dollars costs.to the respondents.

Motion denied, with ten dollars costs to respondents.