82 N.Y.S. 293 | N.Y. Sup. Ct. | 1903
This is an application by Joseph L. O’Hara, who has a druggist’s license expiring May first, supported by the petition of forty-one qualified electors of the town of Willsborough, asking that the four propositions under the Liquor Tax Law be resubmitted to the electors of said town on the ground that at the election held March 3, 1903, the vote upon these questions was improperly had for the reason that the town clerk did not publish in a county newspaper for five days before election a notice that said questions were to be submitted to the voters. Hnder section 16 of the Liquor Tax Law if these propositions have not been properly submitted at any election, this court may direct such resubmission, “ sufficient reason being shown therefor.” It is conceded that the petition was duly filed with the town clerk and the notices duly posted, and in fact the
It would seem that two questions are before the court:
First. Does this defect make the election absolutely void?
Second. The first submission not being properly made is that “ sufficient reason shown ” why this court must order a new election when it is evident that all the voters of the town substantially had notice of the election, most of them voted, and it is probable that as full and free an expression would not be had at a new election as has already been had? We answer both of these questions in the negative. It seems that if the matter rests at all in the discretion of the court, as to whether a new election should be ordered, that such discretion should be exercised against the application. It is not in the interest of the town that it should again be burdened with the expense of another election, or that it should again be agitated by this question, which has apparently been fairly settled. There is no case which is a controlling authority upon the question first suggested whether this election is absolutely void by reason of the failure to publish the notice for five days in the county paper.
In Matter of O’Hara, 63 App. Div. 512, the only question before the court was whether a mandamus was the proper proceeding if the election was invalid. It is, therefore, no authority here.
In Matter of Eggleston, 51 App. Div. 38, the petition immediately upon being filed with the town clerk was removed and filed with the county clerk and no notices whatever were published or posted. The opinion states that only two questions are before the court: First, whether the petition should be filed
with the town clerk. Second, must notice be given? It held affirmatively upon both these questions, that although neither the Liquor Tax Law nor the Town Law mentioned the giving of notice, still that under the general law such notice was necessary.
At Special Term the decisions are conflicting and varied. In Matter of Powers, 34 Misc. Rep. 636, where there was neither publication nor posting, it was held that the election was void. It does not appear just how general notice was given in that case.
In Matter of Rowley, 34 Misc. Rep. 662, there was no publication or posting by the town clerk, but various meetings were held, sample ballots mailed to every voter and a large vote bad. The court refused to resubmit the questions.
In Matter of Sullivan, 34 Misc. Rep. 598, there was no official notice or publication. Hotices were mailed to every elector, but they were addressed to the voters of the town of Peterborough, referring to the election there, and not to the town of Moreau in question. A resubmission was ordered.
In Matter of France, 36 Misc. Rep. 693, there was no publication, notices were posted for only five days, but the vote equalled that at the last presidential election and nearly all the electors voted. A resubmission was denied.
It seems, therefore, that this court is at liberty and required to make its own decision, treating this as a question that has not been decisively settled by the courts. It does not seem that an election should be declared void because a ministerial officer has neglected to perform a duty as to publishing a notice, when it is beyond question that the failure to perform that duty has not prejudiced any one or any cause.
Section 16 of the Liquor Tax Law provides that in order to ascertain the will of the electors of the town the petition must be filed with the town clerk. The filing of this petition is a condition precedent to a valid election, and upon its being filed the electors of the town have the legal right to vote upon the propositions and the error of a town officer cannot defeat such right. That the statute makes the filing of the petition the con
“ Must ” or “ shall ” in a statute is not always imperative. but may be consistent with an exercise of discretion. Matter of Thurber, 162 N. Y. 242, 252. The court is not called upon to act in any case except where there has been an improper submission and there it “ may,” sufficient reason being shown, order a resubmission. Olearly the statute might have provided that in case of an improper submission the court must order a resubmission. But it does not say so. It says the court “ may ” order a resubmission where the first submission was improperly made and the court finds there is sufficient reason for a resubmission. It does not, therefore, follow that every improper submission (except the want of a petition) requires the court to grant this order for a resubmission. The theory of popular government is the rule of the majority, and the law wisely provides that notice must be given of elections and submission of questions to the electors so that all may have a fair voice. In any case where the statutory notices are not given the election is irregular and should be set aside unless it fairly appears that no injury arose from such irregularity. But where an actual notice was in fact
Motion denied, with ten dollars costs.