
    Supreme Court, Broome Special Term,
    July, 1901.
    Reported. 35 Misc. 532.
    Matter of the Application of Frank E. Griffin, for an Order under Section 16 of the Liquor Tax Law, Authorizing and Directing a Special Town Meeting, in and for the Town of Union, Broome County, N. Y.
    Liquor Tax Law—Resubmission of local option because all the legal voters of a district had not opportunity to vote.
    The statutory local option questions must be resubmitted to the people of a town where proof is made to the Supreme Court that, owing to the failure of the officers of the town properly and sufficiently to redistrict it, there was such congestion at the polls of one district that all its legal voters had not opportunity to vote at the annual town election upon the said questions and that a considerable number of electors were standing in line waiting to vote upon them when the polls closed.
    Motion or proceeding to set aside an annual town election, and application for a special election, asking for the resubmission to the people of the. town of Union of the four questions under section 16 of the Liquor Tax Law.
    Mangan & Mangan, for petitioner.
    Radcliffe Park, for the Town of- Union.
   Forbes, J.

This is a motion or proceeding to set aside an annual town election, and an application for a special election, asking for the resubmission to the people of the Town of Union, Broome county, N. Y., of four questions under section 16 of the -Liquor Tax Law.

The difficulty in this contest arises, principally, from one cause. The Town of Union, prior to March, 1901, was composed of three «lection districts. The principal question arises out of the election in the first district, in that portion of said town known as the village of Lestershire.

It is apparent, from the moving papers and all the affidavits •submitted, that the proper election officers of the Town of Union had neglected to redistrict said town prior to the submission of the question of local option, under the four propositions referred to; also that the village of Lestershire was composed of but one election district, known as the first election district of the Town of Union. The number of legal voters in said district was something more than 1,300.

At' the time of the submission of the question of local option, on the 6th day of November, 1900, it is asserted that more than 200 legal voters, wishing to exercise the elective franchise, were deprived of their votes and were actually disfranchised, through ..the inadequacy of proper polling places and voting opportunities "in said district; and that, while the election officers performed all of their duties, at said election, in receiving votes, still the number of legal voters was so great, that it was absolutely impos- - sible for said officers to receive and record their votes, and that •about 250 legal voters were standing in a line formed and ready to vote when the polls closed.

The policy of the law is that no legal voter shall be improperly .and unnecessarily disfranchised; that all such voters shall have a fair opportunity to vote once, and to have that vote counted; and when that vote is so given and counted, it must fairly record the will of the voter and, therefore, of the people of the town, on the. question of local option, to the end that the law in that respect may be impartially and rigidly enforced.

It was the duty of the proper town officials to so redistrict the town, as that all electors wishing to vote may have a fair opportunity to do so, and the expression of an opinion so made must be regarded on that subject as the highest law of the land. "There should be no other sentiment about this proposition. The law should be enforced, with a firm desire to do justice by all-persons who are legal voters, who desire to vote.

There is but little doubt or even dispute in this case, that the* electors of the village of Lestershire had no such opportunity^, and that, as a matter of right, they must be permitted to use the: elective franchise in a legal and proper manner.

“ The very object of an election is to ascertain the popular will,, not to thwart it. The object of the election law is to secure and. preserve the rights of duly qualified electors, and not to' defeat, them. Statutory regulations are enacted to promote justice and. secure freedom of choice, not by technical obstructions to make the right of voting insecure and difficult.

“ The votes of innocent electors should not be invalidated by irregularities, or unauthorized acts or omissions, on the part of public officers charged with the duty of preparing and printing official ballots, or furnishing proper and suitable polling places for the safe deposit and canvass of the votes of electors of the district.”

When the expression of the will of the people has been once fairly made, the courts and juries will never hesitate to enforce the law as it stands upon the statute. (People ex rel. Hirsh v. Wood, 148 N. Y. 142; Hatter of Stewart, 155 id. 545.)

The last annual election in the Town of Union, when the four-questions, under the Liquor Tax Law, were submitted to the-people, must be set aside, and said election so far vacated that a resubmission to the legal voters of those four questions may be-made under the law.

The prayer of the petitioner must, therefore, be granted, and' a special election is hereby ordered to be held in said town, under- and in pursuance of the statute in such case made and provided; to the end that the will of the people may be properly and legally, expressed on the question of local option.

The motion is granted, with costs, and a proper order may be: prepared accordingly.

Motion granted, with costs.  