In re Woolston

This is an application under section 16 of the _ liquor tax law for an order directing a special town meeting to be

“Notice of Questions to tie Submitted.

“Local Option.

“To determine whether liquors shall tie sold under the provisions of section 16, chapter 367, Laws of 1900, known as the ‘Liquor Tax Law.’ Now, therefore, notice is hereby given that a vote will tie taken by ballot upon said proposed questions at the next biennial town meeting of said town of Tates, to tie held on the 12th day of March, 1901.

“Dated Tates, February 25, 1901.

“Leigh Hill, Town Clerk.”

That he caused said notice to be published in the Medina Tribune, a paper published in the county, on Thursday of the week commencing February 24, 1901. That thereafter said town clerk caused said notice to be so changed as to read as follows:

"To determine whether liquors shall tie sold under the provisions of section 16, chapter 367, Laws of 1900, known as the ‘Liquor Tax Law.’ Amended. Now, therefore,” etc.

That on the 2d and 4th days of March, 1901, the said town clerk caused said changed notice “to be posted in more than four public places in said town of Yates in place of the notice firstly hereinabove set forth,” but that there were not four of such changed notices posted until March 4th. That he also caused said changed notice to be published in the Medina Tribune on Thursday of the week commencing March 3d.

Section 16 of the liquor tax law provides that, upon filing with the town clerk the proper request that the several propositions be voted upon at the town meeting, he shall, at least ten days before the holding of such town meeting, cause to be printed, and posted in at least four public places of such town, a notice of the fact that all of the local option questions provided for therein will be voted upon at such town meeting or general election; and that said notice shall also be published at least five days before a vote is to be taken 'once in one newspaper published in the county in which such town is situated. The contention of the petitioners is that the town clerk failed to perform the duty imposed upon him by said section, in that he did not, in his notice, say that all of the questions mentioned in section 16 would be submitted to the voters, and that he did not set forth all said questions at large in said notice. It is also claimed that he did not post four of said changed notices in said town at least ten days, and did not publish the same five days before the holding of the town meeting; that, on account of these alleged defects, the propositions were improperly submitted, and that a special town meeting should be called for the purpose of

1. As to the sufficiency of the form of the notice: -The statute provides no specific form of notice to be given. The requirement is that the town clerk shall cause to be printed and published a “notice of the fact that all of. the local option questions provided for herein [section i<5] will be voted on at such town meeting.” I think the notice in this case complies with the requirement of the statute. It is headed “Local Option.” It then goes on to say that it is to determine whether liquors shall be sold under the provisions of section 16 of the liquor tax law, giving the chapter and year. It certainly was enough to put the elector on inquiry, and, by looking at the statute indicated, he could not help actually knowing what all the local option questions provided for in section 16 are, to say nothing of the legal presumption that every one knows the law. By the notice as given he is directed to a particular section of a general statute of the state (and which is accessible at all times to him), where he can get actual knowledge of all the matters he is required to pass upon. The object of the requirement of notice is, I take it, not so much to give, in exact words, the precise questions to be voted on (for the statute distinctly provides that all four of the questions enumerated in section 16 shall be submitted), as to give the information that the preliminary steps required by the statute have been taken,—that the petition has been filed, etc.,—and that the general question of local option is up for decision by the people. The elector is presumed to know what the law is, and what particular questions he will have to vote upon when the general question is up; but he is not presumed to know the fact that the proper petition has been filed to allow the general question to come up. The notice in this case gives this information. There is nothing misleading about it, nor is it claimed that any one was misled by it. There is no intimation in the papers but that the will of the people was fairly expressed by the vote taken, but, on the other hand, the papers do show that there was a full and fair expression of the sentiment of the electors, and that such sentiment is the same as has existed in the town for years past. In People v. Chandler, 41 App. Div. 178 , 58 N. Y. Supp. 794 , the appellate division of this department decided that a notice that “the license question, as provided by the Raines law7, will be submitted to the voters at this town meeting,” was a good and sufficient notice. If that notice was good, then the one in this case certainly is. But the point is made that that decision does not apply in this case, for

2. As to the time within which. the notices were published and posted: The first or original notice was published and posted in ample time. Of this there is no dispute. The changed notice was published on the 7th of March, and the town meeting was on the 12th. Some of the changed notices were posted on the 2d. These acts were both done iji time. People v. Burgess, 153 N. Y. 561 , 47 N. E. 889 . It does not appear, either, but that at least four of the original notices remained up, or were not “changed.” In any event, I think the statute is directory as to the time of the notice, and that a new town meeting should not be called, with the annoyance and expense attendant thereon, for the slight error of the clerk, if, indeed, there was one. In People v. Chandler, supra, a notice posted four days before the town meeting was held sufficient, and in Re Rowley, 34 Misc. Rep. 662 , 70 N. Y. Supp. 208 ,— a proceeding under the very law here in question,—Justice Rich held that no notice by the town clerk was necessary to the validity of the election when it was shown that the electors had actual notice, and a full vote was polled. I think a fair expression of the choice of' the electors of the town was had at the regular town meeting, and that no such error was committed by the town clerk or other officer as should vitiate it. The motion for an order directing the calling of a special town meeting is therefore denied, but without costs,

Motion denied, without costs.