Misc.] Supreme Court, July, 1900. papers. Assuming then that, but for the adverse vote on the local option questions at the election of 1899, the hotel company would be 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 be 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 cast 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 Supreme Court, July, 1900. [Vol. 32. another 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 Misc.] Supreme Court, July, 1900. in 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 clerk 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 ballotbox 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 Supreme Court, July, 1900. [Vol. 32. tions. 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 thirtyeight, 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 be held 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. Misc.] Supreme Court, July, 1900. THE PEOPLE ex rel. OSCAR C. WOOD, Relator, v. THE BOARD OF TOWN CANVASSERS, ETC., OF THE TOWN OF RANDOLPH, Respondents. (Supreme Court, Chautauqua Special Term, July, 1900.) Mandamus. Liquor Tax Law Local option Errors of biennial town meeting cured by action of special town meeting Where a special town meeting has duly and regularly passed upon the question of local option, errors committed in the submission of those questions to a prior biennial town meeting may be deemed to have been rectified, and, therefore, the court will not compel the board of canvassers to reconvene and reject the local option ballots which were cast at the biennial town meeting. THIS is an application for a writ of peremptory mandamus requiring the respondents to reconvene and reject all ballots cast by the electors of the town of Randolph at the election of 1899 upon the subject of local option in said town. Wentworth & Wentworth and Norman M. Allen, for relator. Benjamin F. Congdon, for respondents. WHITE, J. The moving papers and the affidavits filed on behalf of the respondents show that the electors of the town of Randolph voted upon the local option questions provided for by the Liquor Tax Law, at the biennial town meeting in 1899; that those questions were not at that meeting submitted to or voted upon by said electors in the manner prescribed by law, and the result thereof may be assumed to have been void. Because of the recognized irregularities in the first submission of the questions, a special town meeting was duly called and held on May 1, 1900, at which said questions were regularly submitted and voted upon and the result thereof declared according to law. It seems clear to me that the electors, having remedied such irregularities in the manner prescribed by the statute, no effect |