
    Third Appellate Department,
    March, 1897.
    Reported. 15 App. Div. 290.
    The People of the State of New York ex rel. George M. Thomas, Respondent, v. Martin R. Sackett, as Treasurer of the County of St. Lawrence, Appellant.
    Liquor Tax Law—Decision whether liquor shall be sold—It must be made at the annual town meeting—Appeal from an order directing a tax certificate to issue—Restitution.
    Tie provisions of section 16 of chapter 112 of the Laws of 1896, known as the Liquor Tax Law, providing for the submission to the electors of a town of the question whether any liquors shall be sold there, contemplate that action upon that proposition shall be taken at an annual town meeting.
    
      An order reversing the decision of a county treasurer, in refusing to-issue a liquor tax certificate, affects a substantial right, and is appealable under section 1356 of the Code of Civil Procedure, and the county treasurer, although not affected pecuniarily, is a party aggrieved, within the meaning of section 1294 of the Code of Civil Procedure.
    The court has power, under section 1323 of the Code of Civil Procedure, to restore to a person, who has paid for a license in reliance upon an order subsequently reversed upon appeal, a pro rata amount of the tax paid by him.
    Appeal by the defendant, Martin B. Sackett, as treasurer of the county of St. Lawrence, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 17th day of June, 1896, reversing the decision of the county treasurer of St. Lawrence county, refusing to issue a tax certificate to the relator, and directing that such certificate issue.
    The order was made in a proceeding upon certiorari under section 28 of chapter 112 of the Laws of 1896, commonly known as the Liquor Tax Law.
    
      Ledyard, P. Hale, for the Appellant.
    
      John C. Keeler, for the Respondent.
   Parker, P. J.

The relator in this matter applied to the treas urer 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 require ments 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 there upon 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 thereof, an order was made directing the county treasurer to issue a certificate to the relator, upon his paying the tax required by section 11 of such act. From such order an appeal is brought to this court.

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 ques tions 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 meet ing 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 (§ 10 of the Town Law, chap. 569, Laws of 1890, as amended by chap. 82, 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 ex rel. Peck v. Comrs., etc., of Brooklyn, 106 N. Y. 64, 67.)

It also appears very clearly that the only question raised upon the hearing below was as to the jurisdiction 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 twenty-fifth 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 (Chap. 680, Laws of 1892, as amended by chap. 810, Laws of 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 for a town election occurring next after the passage of this act.”

Section 12 of the Town Law provides for the election of town officers at the annual town meeting.

Section 25 of that law provides for “special town meetings,” at which certain propositions, therein specified, may be voted upon. Such meetings are held whenever called for by certain officers, or taxpayers, therein specified, and no election of officers can be had at any such meeting. It is also further provided by section 34 of the Town Law that no proposition then presented shall be voted upon by ballot, unless a particular request and notice, then provided for, is made and given, and in that case the town clerk is to provide ballots therefor, either written or printed, and evidently not as official ballots. No special form is required for them, and evidently nothing prevents the elector from using his own instead of voting them.

Now, what does section 16 mean by the phrase “at the time fixed by law for preparing the ballots for a town election,” etc.? Evidently not upon any day that a special town meeting shall be called and held, for there is no time fixed by law for providing official ballots for such a meeting, nor any provision of law for using them at such a meeting. Such a meeting is not in any sense a “town election.'” No officer can be elected at such a meeting, and, in many instances, no ballots need be used thereat. The phrase “town election,” therefore, can only refer to the annual town meeting at which officers are elected. For such a meeting the town clerk is required by section 86 of the Election Law to prepare official ballots, and to have them ready and open to public inspection one day before the election is held. And that election day is fixed by law, and must occur on the same day, in each year, without any notice being given thereof. (Town Law, §§10, 26.)

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 that 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 method for effecting the change, as provided by section 16, is so arranged that the existing condition may not be changed any sooner than it could have been had the new law never been passed. That is, it can be changed at the next annual town meeting, but no sooner. The new law undoubtedly intends to provide a more definite and precise method for expressing the will of the electors upon that subject, but it is careful not to interfere at all with the existing conditions in the several towns of the State at the time it takes effect. And I do not see any reason why a different intent should be expected or sought for. It was evidently just not to force upon a town that had secured, at the last annual meeting, exemption from the sale of liquor therein for a year, a law that would operate to change that condition, or that would force them to another vote to determine what they had so recently settled.

The fact that a better method of expressing the popular will on that question was to be thereafter adopted does not indicate an intent to force, by its immediate use, an immediate change in a condition which had, in most instances, been recently and fairly adopted.

I conclude that it was the intent of the Legislature that the vote upon the propositions allowed by section 16, above -cited, should be had at an annual town meeting, and that, therefore, the action of the meeting held on April 25, 1896, was inoperative and the treasurer was correct in not recognizing the same.

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 (Code, tit. 2, chap. 16), 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 ex rel. Burnham v. Jones, 110 N. Y. 509; People ex rel. French v. Town, 1 App. Div. 127.)

It does not appear from the record whether or not the tax has been paid and a certificate issued, but we understand 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 ten dollars costs and disbursements to the appellant of this appeal.

All concurred.

Order reversed, with costs in court below, and tax certificate canceled, and restitution of a ratable amount of the tax paid ordered, with ten dollars costs and disbursements of this appeal.  