27 Misc. 308 | New York County Courts | 1899
The relator is the proprietor of the “ Cottage Hotel ” in the village of Speneerport, town, of Ogden, and holds a liquor tax certificate expiring April 30, 1899, which authorizes him to sell liquor as a hotelkeeper in said town. On March 24th he made an application in due form to the county treasurer for a new-certificate to enable him to continue to sell during the year commencing May 1st. With his application he tendered a bond executed in proper form for approval and offered to pay- the amount of the tax, but the treasurer declined to issue the certificate upon the ground that March 14, 1899', the town clerk of said town filed With him a paper of which the following is a copy: “ County of Monroe.— Statement of the vote of the town of Ogden on questions submitted on local option at the annual town meeting held in said town March 7, 1899:
“ Question No. 1: number voting Yes, 250; No, 328.
“ Question No. 2: number voting Yes, 218; No, 314.
“ Question No. 3: number voting Yes, 351; No, 185.
“Question No. 4: number voting' Yes, 260; No, 305.
“F. H. Dewey,
“ Toimi Clerk.”
In response to the writ, the treasurer answers that said instrument was considered by him as due official information that the electors of the town of Ogden had determined by a vote taken at their town meeting under the local option provisions of the Liquor Tax Law that no liquors should be sold in that town during the next two years (except by a pharmacist and upon a physician’s prescription), and that accordingly he could not lawfully issue the-certificate applied- for by the relator.
The relator now attacks the document filed by the town clerk as not authoritative, and as insufficient upon its face to warrant the refusal of his application, and counsel agree that the legal sufficiency of the clerk’s statement is the only question to be "determined by me in this proceeding..
• Hnder the Liquor Tax Law of 1896, local excise boards are abolished, and the people of the towns are permitted, for the first time .since 1847, to vote directly upon the, question of sale or no
P"nder-section 16, which regulates the procedure for voting upon local option* provision is made for submitting to the people four distinct questions, and-the section provides that “A certified'copy ofjhe statement of the result of the vote, upon-each of súeh questions submitted, shall, immediately after súeh submission thereof be filed by the town clerk or other officer with whom returns of town meetings are required to be'filed by the election law, with' the county treasurer of the county ”. The word ■“ certified ” was inserted in section 16 before “ copy ” by the amendment of 1897,
Now* the document filed by the town clérk with the treasurer, March 14th, is not the “ certified copy, of the statement of the result of the. vote ” which the clerk' is required to file by section 16, and with which, under section 19, the treasurer, must be furnished in order to refuse an applicant his certificate. The use of the definite article “ the ” before. the words “ státement of the. result of the vote ” gives to those words precise and definite application. The words undoubtedly refer to that formal return of the-Result of the canvass of the votes, which, under sections 83,. 84-and
That these general provisions of the Election Law apply to town meetings cannot be doubted. In the original enactment of the Election Law, chapter 680, Laws of 1892, section 117, there was a direction .that- in town elections held, át a different time from a general election, a certified copy of “ the statement of the result of the canvass ” should be filed with the town clerk. In the reenactment of the Election Law, in 1896, section 117 was omitted, its substance being incorporated into other sections. The requirement that a certified copy of the original statement should be filed with the town clerk seems to have been omitted in the revision, possibly, because the original statement itself is filed with the town clerk as the proper custodian of the records of the town meeting.
In the town of Ogden the town meeting is not held in separate election districts, and, accordingly, the four justices of the peace of the town preside at the town meeting and discharge the duties of inspectors of election. ■ In the general revision of the statutes adopted by the legislature in 1827, it was provided that the justices of the town should preside at town meetings and act as inspectors of election, canvassing the vote (1 R. S., chap. 11, tits. 2, 3), and the town clerk had no voice in judging as to the result; he only recorded the proceedings of the meeting which had to be signed also by the justices presiding. These provisions have remained substantially unchanged to the present day, except where
T do not think-it can be fairly said that the paper actually-filed with the treasurer by the town clerk is a substantial compliance with the statute. It is, upon its face, an original memorandum or declaration by the clerk upon his own authority as- to the result of the election.' It ■ does not purport to be á copy of any original official record. It would not be competent as evidence, in its present form, in any judicial proceeding. The proper statement of the result acquires authenticity from the certificate of the justices of the peace, who are the exclusive judges of the election. -Their determination, evidenced by their certificate and signatures, is of higher value as evidence than the independent written assertion of the town clerk, and of this higher form of proof, authenticated in due form, the legislature 'says the treasurer must- be possessed, in order to warrant him in refusing an applicant for a certificate.
My duty in the premises is marked out by section 28, subdivision 1: “ If such judge or justice shall upon the hearing determine that such application for a liquor ti*x certificate * * * has been denied by such officer without good and valid reasons there- ■ for, and that under the provisions of this act such liquor tax certificate should he issued or transferred, such judge or justice may make an order commanding such officer to grant such application ”, -As t-he case now stands, under the strict terms of the statute, a peremptory order might he made directing the immediate issuance by the treasurer to this relator of a liquor tax certificate; but, if the question of the sale or - no sale has been rightfully submitted
The validity and "regularity of the election itself is not before me for review. If a vote was properly taken under the local option clause, then the subsequent mistake of the town clerk, which, in this instance appears to have been innocently made, should not occasion a peremptory and unconditional order without an opportunity to have the clerical error rectified. To hold otherwise would be t-o subordinate substance to form and place the servant above his master. These statutes, are calculated to ascertain and give effect to the -popular will, not to thwart it.
In his petition for this writ the relator asserts that because of certain irregularities in the preliminary procedure, the election itself on the local option matter was illegal and void. It is conceded that I have no jurisdiction in this proceeding to pass upon that question, but counsel for the relator state their intention to attack the legality of the vote in any proceeding that may hereafter arise wherein that question can be judicially determined, and it was suggested upon the argument that if an order were made by me, directing the treasurer to issue immediately to the' relator a liqhor tax certificate, a correctly attested and certified copy of the statement of the result of the vote might then be filed by the town clerk with the county treasurer, and a proceeding taken by any one interested under subdivision 2 of section 28 for the revocation
The order to be entered may provide that the county treasurer shall issue a liquor tax certificate to the relator, pursuant to the, application made by him on the payment of the tax, unless, within five days, the town clerk of the town of Ogden shall file with the county treasurer a certified copy of .the statement of the result of an election held on the question of local option, at the March town meeting, from which it shall appear that such liquor tax certificate cannot be lawfully granted, in which case the application shall be refused. This order "works no injustice to the relator.- If a legal election has not been held the learned counsel who are protecting the rights of the relator will doubtless find means to pre^ vent the filing of a certificate of an illegal election, or will advise some other method by which full redress can be accorded to the relator for any wrong suffered by him. Ho costs are allowed in this proceeding.
Ordered accordingly.