
    (67 Hun, 169.)
    MONTGOMERY, Overseer of Poor, et al. v. O’DELL.
    (Supreme Court, General Term, Fourth Department.
    February, 1893.)
    1. Ballots—Town Officers—Separate Boxes.
    Under Laws 1890, c. 262, which requires that all the names of candidates for town offices, including commissioners of excise, shall be on one ballot, and that all ballots cast shall be deposited in the same box, ballots containing the names of candidates for the office of commissioner of excise alone, and deposited in a box separate from that in which the ballots for other town officers were deposited, should not be counted.
    2. Same—Excessive Number of Candidates.
    Where the term of only one member of the board of excise commissioners has expired, and but one person can be elected to that office, a ballot containing the names of three persons is void, and should be rejected, since it is impossible to determine which of the number the voter prefers.
    3. De Facto Officer—Color of Title.
    A certificate of election that three persons are elected to an office which has but one incumbent does not confer on any of the three color of title, so as to constitute one of them, claiming under the certificate, either an officer de jure or de facto; the defect in his title being so notorious, and his right to the office being questioned so repeatedly, that persons dealing with him must have known of the fact.
    4. Election—Number of Votes—Irregular Ballots.
    At an election for commissioner of excise, where but one valid ballot is cast, all the others being irregular and void, the person for whom the valid ballot is cast is elected, though the result may defeat the intent of the majority of the electors.
    5. Same—Paster on Unofficial Ballot.
    The fact that no certificate of nomination for the various town officers was filed with the clerk, as required by statute, and that the printed ballots furnished by him omitted all mention of the office of excise commissioner, will not prevent an elector from using and treating it as an official ballot, nor from expressing his choice for the office of commissioner by pasting the name of a candidate thereon, as he is expressly permitted to do by Laws 1890, c. .262, § 25.
    6. Officer de Facto—Color of Title.
    Where the inspectors of election fail to issue a certificate of election, one who has received the highest number of legal votes cast has sufficient apparent authority or color of title to become an officer de facto.
    7. Town Officers—Right to Hold Over.
    The commissioners of excise are town officers, within 2 Rev. St. (8th Ed.) p. 892, § 30, which gives town officers the right to hold over until their successors have been elected and have qualified, though such section also provides that town officers shall be elected for one year, while excise commissioners are elected for three years.
    8. Liquor License—Rights of Licensee.
    Where there is no certificate of election issued by the board of town canvassers, declaring any person elected to fill a vacancy in the board of excise commissioners, a person holding a license to sell liquor may show that the persons signing it were in fact entitled to the office.
    9. Same—Date of Issuance.
    Laws 1870, c. 175, § 3, as amended by Laws 1890, c. 161, which requires the commissioners of excise to meet on a day named, in each year, for the purpose of granting liquor licenses, and at no other time for that purpose, is directory merely, and is intended to limit the time which they shall devote to issuing licenses, and does not render void a license issued by them within a month from the day named.
    10. Same—Presumption to Uphold Validity.
    To uphold such a license, the court will presume that a meeting shown to have been held on the day specified in the statute was adjourned from time to time until the day on which the license was granted.
    Appeal from circuit court, Tioga county.
    Action by Jackson Montgomery, as sole overseer of the poor of the town of Spencer, on the relation of Seymour Seeley and another, against Marcellus E. O’Dell, to recover a number of penalties for the sale of intoxicating liquors without having a license therefor. From a judgment entered on the decision of the trial court, a jury having been waived, relators appeal.
    Affirmed.
    Briefly stated, the findings of the trial court were that the plaintiff was overseer of the poor; that the relators were authorized to prosecute this action in his name; that John Q. Shepard was a member of the board of commissioners of excise prior to February 10, 1891, and that his term of office expired on that day; that Robert Fisher was a member of the board, and his term of office expired February 9, 1893; that Seymour Seeley was a member of the board, and his term of office will expire February 7,1893; that Horace A. Hugg was a candidate for the office of excise commissioner, to fill a vacancy caused by the expiration of the term of office of John Q. Shepard; that John Q. Shepard was also a candidate for re-election to fill the same vacancy; that that there was but one commissioner of excise to be elected; that a large number of ballots for commissioners of excise were cast, on which were printed the names of three candidates; that upon one ballot two names were struck off, leaving John Q. Shepard the only candidate voted for by the elector who cast the same; that by that ballot "Shepard was elected excise commissioner of the town,- to succeed himself; that before the 13th of May, 1891, Shepard took the required oath of office, qualified, and entered upon its duties; that the board of excise commissioners was duly organized May 4, 1891, by the election of Robert Fisher, as chairman, and Seymour "Seeley, as secretary; that Horace A. Hugg was present and assumed to participate in the proceedings of the board, as a member, and at the same time John Q. Shepard was present, and participated in the proceedings of the board, as a member thereof; that on May 13th the board of excise consisted of Fisher, Seeley, and Shepard, and on that day, at a meeting duly held, the board granted the defendant a license authorizing him, for one year from that time, to sell strong, spirituous liquors in quantities less than five gallons at a time, which license was in the usual form, and signed by Robert Fisher and John Shepard, who voted for the same; that the only ballots cast for Horace A. Hugg were those upon which the names of three candidates were printed for excise commissioner, of which his was one; that within the time specified in such license «the defendant sold strong and spirituous liquors to at least ten different persons. As conclusions of law, the court held that the defendant was entitled to a judgment in his favor, dismissing the complaint upon the merits, with costs, and directed judgment accordingly.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    W. Martin Jones, for appellants.
    E. E. Dean and S. D. Halliday, for respondent.
   MARTIN, J.

This action was brought, in the name of the overseer of the poor of the town of Spencer, to recover ofthe defendant a number of penalties for the sale of intoxicating liquors without having a license therefor. That it was properly brought in the name of the overseer is not questioned. Neither is it denied that defendant sold intoxicating liquors at the times proved and found by the court. It was conceded that at least 10 sales were made. The defendant justified under a license which he claimed was granted to him by a majority of the commissioners of excise of the town of Spencer, where he lived, and where the sales were made. The main controversy arises over the question whether JohnQ. Shepard, one of the persons who signed defendant’s license, was then a commissioner of excise of that town. That he had been prior to the 10th day of February, 1891, is not disputed. But his term of office, under his previous election, expired on that day, unless he held over because no person was elected to fill his place. The annual town meeting was held February 10, 1891. There was but one vacancy in the office of commissioner of excise, yet three persons were placed on the tickets of each party, and -were voted for by all of the electors who voted at that election, except one. No certificate of nomination was made or certified to, as required by statute. None of the electors were entitled to vote for more than one commissioner. The names of the persons who were candidates for the office of commissioner were placed upon separate tickets, and the ballots were deposited in a ballot box separate from that in which the ballots for other town officers were deposited, except those which will be hereafter considered.

The manner of preparing the ballots, and conducting this election, was in direct conflict with many of the requirements of the ballot law. Law's 1890, c. 262. In People v. Person, (Sup.) 19 N. Y. Supp. 297, affirmed, 32 N. E. Rep. 645, mem., under chapter 296 of the Laws of 1891, which provides that ballots for commissioners of excise shall be separate from ballots for other town offices, and deposited in separate boxes, it was held that ballots for town officers found on ballots indorsed, “Excise,” and in the excise or town ballot box, should not be counted. As the statute of 1890, which was in operation when this town meeting was held, required that all the names of candidates for town offices, including commissioners of excise, should be upon one ballot, and that all the ballots cast should be deposited in one box, it would seem that the ballots other than those containing the names of the town officers, or that were deposited in any box except that in which the ballots for town officers were deposited, should not have been counted. If, as held in the Person Case, ballots that contained the names of town officers other than commissioners, affixed to an excise ballot, and deposited in the excise or town box, should not be counted because the statute, as it then stood, required them to be upon separate tickets, and to be deposited in separate boxes, we can perceive no good reason why the converse of that proposition is not equally true, nor why, where the ballots are required by the statute to contain the names of the candidates for all the town officers to be elected, and to be deposited in one box, the ballots deposited in another, containing only the names of commissioners of excise, should not also be rejected. We think the principle of that case controls this question, and that all the ballots deposited in the box, other than that which was authorized, should have been rejected.

The three persons whose names were placed on what was known as the “No License Ticket” each received 295 votes, while those placed upon the “License” ballot each received only 195 votes. When the votes were canvassed the inspectors made a statement showing the total number of votes cast for commissioners of excise, the number received by each of the six candidates whose names were on the ballots voted, and then added:

“On motion, it is voted that all the candidates having the greatest number of votes set opposite their respective names were declared duly elected to the several offices herein named. ”

No other certificate was made by the inspectors. Therefore, as all the candidates for commissioners on the ticket receiving the most votes received an equal number, they were all declared elected, and no one of the three was elected, or declared by the inspectors to have been elected, to fill the vacancy which occurred by the expiration of Shepard’s term. While, if one of two candidates for an office is ineligible, the one who is eligible, receiving á minority of the votes, is not thereby elected, unless his opponent’s disqualification was known to the electors, (People v. Clute, 50 N. Y. 451; People v. Board of Canvassers, 129 N. Y. 374, 29 N. E. Rep. 345,) still.it is obvious that when the number of persons to be elected to an office is limited, as one incumbent to each" office, a ballot containing more names than the number limited must be inoperative as to the office named. The very purpose of voting is that the voter may exercise his choice; and, when he names more than the limited number, it is impossible to determine which of the number he prefers. Thus, where, at an annual town meeting, the electors limited the number of constables to be chosen to four, it was held that ballots containing more than four persons designated as voted for for that office could not be canvassed, but must be rejected, (People v. Loomis, 8 Wend. 396;) and, if a ballot for one office has two names upon it, it cannot be sustained by proof that the voter intended to cast his vote for one of the persons named, (People v. Seaman, 5 Denio, 409.) It has also been held that where but one person can be elected to an office, and three persons are named on the same ballot for such office, the ballot is void. People v. Ames, 19 How. Pr. 551. Indeed, it does not seem to be seriously claimed by the appellants that any of the persons named on those ballots were in fact elected.

The appellants’ claim is that the certificate of the inspectors gave Horace A. Hugg, one of the persons whose name appeared on the “No License ” ballots, apparent authority or color of title to act as such commissioner, and hence he became a commissioner de facto upon qualifying and acting as such, and that, he being a commissioner de facto to fill the vacancy caused by thé expiration of Shepard’s term, he was the only commissioner who could fill that vacancy, and Shepard was neither commissioner de jure nor de facto. It is somewhat difficult to see how this contention can be upheld, especially in view of the fact that Hugg’s title to the office was not recognized or continued for such a time as to justify third persons in believing that he was such officer. There was no certificate by the inspectors indicating that Hugg was elected, any more than the two other persons on the same ballot. The certificate was to the effect that all were elected. No one was certified to have been elected to fill the vacancy caused by the expiration of Shepard’s term. If Hugg had apparent authority or color of title, so did the other two, so far as the election or the certificate of the inspectors was concerned. The court has found, upon evidence sufficient to justify it, that, at the first meeting of the commissioners, both Shepard and Hugg were present, and participated in the proceedings of the board, and that Shepard participated in all their subsequent proceedings down to the time when the license to the defendant was granted. It is true that, when there is but one office, there can be neither a de jure and de facto officer in possession of the same office atibe same time, nor two different officers de facto in possession of an office for which one incumbent only is provided by law. Mechem, Pub. Off. §§ 322, 323, and cases cited. It is also true that “third persons who have occasion to deal with a public officer, and to rely upon his acts, finding a person in the apparent possession of the office, and ostensibly exercising its functions lawfully, and with the acquiescence of the public, can neither be expected to know, nor to investigate, in every instance, his title to the office, qr his eligibility to election to it. "As to them, he must be held to be what he appears to be,—the lawful occupant of the office. This rule is demanded by public policy, as the only one affording protection to the public. * * * This rule does not apply where the defects in the title of the assumed officer are notorious, and the persons dealing with them have notice of the facts.” Id. § 326, and cases cited. But in the present case we do not find any evidence to show that Hugg was in the apparent possession of the office, or ostensibly exercising its functions lawfully, or with the acquiescence of the public. As both Hugg and Shepard were present at the meetings of the board, each claiming the office, the defect in Hugg’s title was notorious, and persons dealing with him must have had notice of the facts. We are of the opinion that Hugg was neither commissioner de facto nor de jure, and that the appellants’ claim that he was commissioner de facto, so that Shepard could not be treated as a corm missioner de jure or de facto, cannot be sustained.

This brings us to the consideration of the question as'to what power or authority Shepard had to exercise the rights and perform the duties of such office. The court found that one ballot was cast for Shepard, which was pasted on the regular town meeting ballot, and contained only the name of Shepard for excise commissioner; the names of the other persons for excise commissioner having been struck off. This finding was, we think, justified by the evidence. The court also found that, as this was the only ballot that was regular, Shepard was elected. That a town meeting was lawfully held at that time, and that a commissioner of excise was to be elected at such town meeting, there is no doubt. Therefore, this case does not fall within the principle of the case of People v. Bull, 46 N. Y. 67, as in that case it was held that it was not lawful to hold an election at the time to elect a candidate for the office claimed by the relator. It seems to be settled.that such a ballot would be valid, when affixed to the regular official ballot, whether the candidate was regularly nominated or not, and although the statute forbids the clerk to put any name on the official ballot, except those nominated and certified as having been made by a political convention, or by the certificate mentioned in section 5 of that act. Laws 1890, c. 262, § 17. In People v. Shaw, (N. Y. App.) 31 N. E. Rep. 512, it was said:

“The first objection—that the relators, having failed to receive a proper nomination by a political party which at the last election before the holding of the convention or primary meeting polled at least one per centum of the entire vote cast in that political division of the state for which the nomination is made—is wholly unsound, and without force. The plan contained in sections 1, 2, and 3 of the ballot reform act (Laws 1890, c. 262) was a provision for the printing of an official ballot at the public expense; a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose is evident from the further provisions of^ the law, (section 25,) that 1 the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office.' Indeed, to hold otherwise would be to disfranchise or to disqualify the citizen, as a voter or a candidate, and, in my opinion, to affect the law, quite unnecessarily, with the taint of unconstitutionality in such respects. ”

The only other paster ballots found by the inspectors contained the names of three persons for one office, and were clearly irregular. Hence, it would seem that, if any commissioner of excise was elected at that town meeting, it was Shepard, and that he was elected, unless it can be held that there was no official ballot upon which a paster might be placed. In Com. v. Read, 2 Ashm. 261, where, to authorize the county board to proceed to the election of a treasurer, it was necessary that at least 11 members of the 20 comprising it should be present, it was held that if a majority of those present either refused to vote, or voted in a manner different from that prescribed by law, a minority composed of a single member was sufficient to make an election. As we have already seen, there was no certificate of the nomination of candidates for the various offices to be voted for, filed with the clerk, as required by the statute. There was, however, a printed ballot, containing all the names of the candidates to be elected at such town meeting, except a commissioner of excise. As the ballots thus printed and furnished by him were used and treated as an official ballot by the electors of the town, we are disposed to think that it should be regarded and treated as valid, although an unofficial ballot, such as is provided for by section 21, and that it should be held that the vote for Shepard, which was pasted upon such a ballot, was valid, and that he was in fact elected as such commissioner of excise. If it be said that this conclusion defeats the will of a majority of the electors of the town, the answer is twofold: (1) That only one of the electors has by his vote expressed his choice. The fact that the other electors have by their votes indicated that they did not desire the election of the person thus voted for, without voting for any other one person to take his place, was of no avail; (2) the statute, in plain, and positive terms, provided how the choice of an officer by the electors, should be made, and, as the statute was not even substantially complied with, the ballots thus cast were void, although the result may have defeated the intent of a majority of the electors. People v. Board of Canvassers, 129 N. Y. 395, 29 N. E. Rep. 327. It was by virtue of this, election that Shepard claimed to act as commissioner of excise for the town. While it may be that he would not become such commissioner de jure without a certificate from the inspectors showing his election to .such office, still, as the inspectors failed to certify the election of any ^person to fill the office, it was, we think, sufficient to give him an apparent authority or color of title to such office.

Moreover, Shepard was the properly elected commissioner, and holding his office as such, when the town meeting in question was held. If, therefore, neither Hugg nor Shepard was elected, the question is presented whether the office became vacant, or whether Shepard held over until his successor was elected and had qualified. As the law now stands, there would be no question. Chapter 569, Laws 1890, § 12, provides:

“All such officers, [being the various town officers, including commissioners oí excise] except justice of the peace, shall hold their respective offices until others are elected or appointed in their places, and have qualified. ”

This statute did not, however, go into effect until March 1, 1891. See section 243. But before the adoption of this statute the Revised Statutes provided:

“Town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified. ” 2 Rev. St. (8th Ed.) p. 892, § 30.

It seems to have long been the policy of the law in this state that all town officers, except perhaps those that were strictly judicial, should hold their respective offices until successors should be chosen and qualified. That commissioners of excise elected in pursuance of the provisions of chapter 444 of the Laws of 1874 are town officers, we have no doubt. The first section of that statute recognizes them as such. It provides that they shall be elected as other town officers are elected, thus showing that they were to become town officers when elected. Being town officers, the question is whether the provisions of the Revised Statutes apply to them. It will be observed that this statute provides two things: (1) That town officers shall hold their offices for one year; and (2) that they shall hold their offices until others have been chosen and qualified. The term of office of commissioners of excise having been established at three years, it modified the statute, as far as the term of office of commissioners was concerned, but, we think, did not affect the remainder of that statute, which provided that town officers should hold their offices until others were chosen or appointed and qualified. We are therefore of the opinion that, if Shepard was not elected, still, by virtue of the provisions of the Revised Statutes cited, he was entitled to hold the office until his successor was chosen or appointed, and qualified, and that the trial justice was justified in holding that he was a commissioner of excise.

It is, however, contended by the appellants that in a collateral proceeding the court has no jurisdiction to change the declaration of the board of town canvassers, and declare a candidate elected when the board has declared him defeated. We do not see how this contention has any application to this case; for, as we have already seen, the town canvassers failed to declare any candidate elected to fill the vacancy caused by the expiration of Shepard’s term. It was said by Danforth, J., in Cronin v. Stoddard, 97 N. Y. 271, that “one who desires to enjoy the privileges afforded by the act under which the proceedings in question were had (Laws 1857, c. 628) must see to it that they are granted by one duly authorized, or submit to the penalty.” Thus it would see.m that the burden is cast upon the .person holding the license of establishing the fact that persons who sign a, license to sell intoxicating liquors under the provisions of that statute are commissioners of excise, and authorized to grant the same. Assuming that this burden was cast upon the defendant, we think it cannot be properly claimed that he should be debarred from showing that the persons signing his license were in fact authorized to grant it, especially where, as in this case,there was no certificate or statement by the town canvassers which declared any person elected to fill the office. We think the defendant was properly permitted to show that Shepard was one of the commissioners of excise of the town of Spencer, and, having shown that fact, that the license held by the defendant was a justification, and that the court properly disposed óf the case on the trial, unless, for some other reason, the license granted was void.

The only other ground upon which the defendant’s license is claimed to be invalid is that it was granted on the 12th day of May, after the commissioners had already met, on the 4th and 6th days of that month. The statute regulating the sale of intoxicating liquors provides:

“The commissioners of excise shall meet * * * on the first Monday in May, in each year, for the purpose of granting .licenses as provided by law, and at no other time for that purpose, except upon application for licenses, made in good faith, in any town or village, and in such case not oftener than once in each month. Laws 1870, c. 175, _§ 3, amended by Laws 1890, c. 161.

An examination of the statutes relating to this subject, as they have existed since 1857, discloses that the legislature, by each of the statutes passed during that time, has sought to limit the time during which the commissioners should sit for the purpose of granting licenses. By the statutes of 1857 and 1870, they were permitted to sit only 10 days in each year. By the statute of 1890 the law was changed so that there was no positive limitation as to the number of days they should be employed in granting licenses, but, instead, it provided that they should meet for that purpose on a day named, and at no other time, except upon application for licenses, and then not oftener than .once in each month. The purpose of this provision was, we think, to limit the time which commissioners should devote to the granting of licenses, and thus lessen the expenses of the towns, and not to entrap applicants .for license, whose license should be issued on some day other than that mentioned in the statute, into a course of action by which they would incur penalties to a ruinous extent. We think this statute, so far as it relates to the time when licenses are to be issued, should be construed as directory. It is a general rule, applicable to the construction of statutes, that provisions regulating • the duties of public officers, and specifying the time for their performance, are in that regard generally directory, unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of the power of the officers. People v. Allen, 6 Wend. 486; Gale v. Mead, 2 Denio, 160; People v. Village of Yonkers, 39 Barb. 266; Dawson v. People, 25 N. Y. 399; Witheril v. Mosher, 9 Hun, 412; Rawson v. Van Riper, 1 Thomp. & C. 370; In re Broadway Widening, 63 Barb. 572; Metcalf v. Mayor, etc., (Sup.) 1 N. Y. Supp. 873. In this case, the nature of the act to be performed by the commissioners was not of a character indicating that time should be considered as a limitation of their power. Nor do we think that the language of the statute was intended to limit the power of the commissioners to the times mentioned. While this question may not be wholly free from doubt, yet we cannot think it was the purpose of this statute to render the acts of the commissioners void, for want of power, if performed at any other than the time mentioned in the statute, but that its purpose was to limit the time they should devote to the granting of such licenses, so far as consistent with the duties to be performed by such officers. Such a construction, we think, accomplishes the purpose of the statute, and avoids a construction which would render it a delusion and a snare to the unwary recipient of a license. That this statute should not be construed so as to produce such a result, unless its plain language requires it, is quite manifest. The lawmakers cannot always foresee all the possible applications of the general language they use; and it frequently becomes the duty of the courts, in construing statutes, to limit their operation so that they shall not produce absurd, unjust, or inconvenient results, not contemplated or intended. A case may be within the letter of the law, and yet not within the intent of the lawmakers, and in such a 'case a limitation or exception must be implied. Railway Co. v. Roach, 80 N. Y. 339. We think the language of this statute, when properly construed, does not require us to hold that the defendant’s license was invalid because granted subsequent to the first meeting of the board, and within a month from that time.

If, however, this construction of the statute cannot be sustained, still there is another ground upon which the validity of the defendant’s license should be upheld: that the commissioners of excise, having properly met at the time provided by the statute, could continue in session, or adjourn from time to time, until the business before them was fully completed, we have no doubt. Therefore, if necessary to uphold this license, we think it should be presumed that the board of commissioners of excise adjourned from time to time until the day on which the defendant’s license was granted. The law constantly presumes that public officers charged with the performance of official duty have not neglected the same, but have performed it at the proper time, and in the proper manner. Meehem, Pub. Off. § 579. In this case we fail to find sufficient proof to overcome this presumption. The evidence tends to show that the meeting of the board on the 4th of May was adjourned, and that the meeting held on the 6th was adjourned until the 12th day of May.

By these considerations we are led to the conclusion that the defendant was justified by his license in making the sales complained of, and that the decision of the trial court should be sustained.

Judgment affirmed, with costs.

HARDIN, P. J.

I think the license was a protection, and the opinion is right, and that the judgment should be affirmed.

MERWIN, J.

I am inclined to the opinion that Shepard held over, so I concur in the result.  