People ex rel. Thomas v. Sackett

The relator in this matter applied to the treasurer of St. Lawrence county for the certificate authorized by section 19 of chapter 112 of the Laws of 1896, commonly known as the “Liquor Tax Law.” He was a resident of the town of Edwards, in that county, and fully complied with all the requirements of such section. The treasurer, however, refused to issue to him a certificate, upon the ground that, at the time the above-cited act took effect, there was no license in the town of Edwards, and that no vote of such town had been since lawfully taken authorizing the sale of liquor in such town. The relator thereupon procured, under the provisions of section 28 of that law, a writ of certiorari, returnable before a justice of this court; and upon the hearing

It is conceded that, at the time the above act became a law, there was no license in the town of Edwards; also, that a town meeting was held on April 25, 1896, in such town, and the questions allowed by section 16 of such act were then submitted to the voters of the town, and that a majority of the votes then given were in' favor of the sale of liquor in such town. The treasurer, however, contends that inasmuch as such meeting was a special town meeting, called merely for the purpose of submitting such questions to it, it was not such a meeting as is contemplated by section 16, and that, therefore, the vote taken thereat was without force or effect.

The first question presented is whether such meeting was or was not a special town meeting, called for that purpose only. It is claimed by the respondent that, from the record before us, we cannot assume that it was not the annual town meeting, then held in such town. It is true that, under the law as it now exists,—section .10 of the town law (chapter 569 of the Laws of 1890), as amended by chapter 82 of the Laws of 1893,—the meeting for the annual election of town officers may have been held in the town of Edwards on the 25th of April, 1896, and that the averment in the petition is substantially to that effect. But the return of the treasurer substantially denies that averment, by stating that the certificate was refused because the meeting in question was a “special town meeting,” and therefore without jurisdiction; and upon a certiorari the court is to be controlled by the statement of facts contained in the return to the writ. People v. Commissioners Dept. Fire & Buildings, 106 N. Y. 64 , 67, 12 N. E. 641 . It also appears A-erjr clearly that the only question raised upon the hearing below was as to the juris'diction of such meeting, and no such question could have arisen unless it had been assumed that it was a special, and not an annual, one. Upon this appeal, therefore, we must assume and decide the question presented, on the theory that the meeting of April 25th was a special meeting, called for a special purpose.

An analysis of section 16, above referred to, shows that it provides for submitting to the electors of the town the question whether any liquors shall be sold therein, in the following manner: First, it designates the officer who is to prepare the ballots for that purpose, to wit, the officer of the town charged by the election law with the duty of preparing official ballots. Section 86 of that law (chapter 680, Laws 1892, as amended by chapter 810, Laws 1895) requires the town clerk to prepare such ballots for any town meeting for the election of town officers, held upon a different day from a general election. There does not seem to be any provision in that law, or in any other, requiring any officer to provide official ballots for any town meeting, except one for the election of public officers. Next it provides the time when he shall have such ballots prepared, viz. “at the time fixed by law for preparing the ballots

It seems, therefore, that under section 16 the meeting therein referred to is the one at which a town election for officers may be held,—one at which official ballots are required to be used, and for which it is made the duty of the town clerk to prepare such ballots at a fixed and stated time. The annual town meeting is the only one to which these provisions are applicable; and when that section requires the town clerk to have prepared the ballots therein specified, at the time fixed by law for preparing the ballots for a town election occurring next after the passage of that act, it requires him to prepare them at the same time he does the ballots for the next annual town meeting. Thus the intent of the statute appears,—to submit the question at the next annual town meeting,— and is in harmony with the subsequent provision that the same questions shall be submitted at the annual town election in every second year thereafter, if a sufficient number of the electors petition therefor. Moreover, the statute evidently intends to preserve intact the condition in which it finds each town at the time the law takes effect. Section 16, above cited, provides that, in towns where no license exists at the time the act becomes a law, no liquor tax certificate shall be issued until the electors of the town shall have changed that condition, by taking a vote as provided in that section; that is, the existing condition shall not be changed by the mere change from the old to the new excise law. So, also, the

It is claimed by the respondent that no appeal lies from the order made at special term in this matter. The writ of certiorari' is a special proceeding (title 2, c. 16, of the Code), and the order from which this appeal is taken affects a substantial right therein. It is therefore appealable under section 1356 of the Code. The county treasurer, by that order, is directed to do an act which, as a public officer, he is not authorized to do; and, although it does not affect him pecuniarily, he has such an interest in the subject as to make him a party aggrieved, within the meaning of section 1294 of the Code. People v. Jones, 110 N. Y. 509 , 18 N. E. 432 ; People v. Town, 1 App. Div. 127 , 37 N. Y. Supp. 864 .

It does not appear from the record whether or not the tax has been paid and a certificate issued, but we understood it to be conceded upon the .argument that such is the case. Under such circumstances, justice requires that restitution of the amount should be made. The relator paid the tax relying upon the order which we now reverse, and we are of the opinion that the case therefore comes within the provisions of section 1323 of the Code. Under that section this court has power to order restitution. We therefore conclude that an order should be entered reversing the order appealed from, with costs in the court below, and revoking and canceling the tax certificate issued, and awarding restitution to the relator of a pro rata amount of the tax paid by him therefor, with $10 costs and disbursements to the appellant of this appeal. All concur.