
    Supreme Court, Delaware Special Term,
    May, 1902.
    Reported. 38 Misc. 157.
    Matter of the Petition of William H. Brown, for an Order Revoking and Cancelling Liquor Tax Certificate No. 27,158, Issued to Sherman S. Bouton.
    Liquor Tax Law—Determination of a board of town canvassers as to a vote on local option conclusive on an application to cancel a certificate.
    The determination of a hoard of town canvassers as to the result of the vote at an election at a biennial town meeting upon the question of the sale in the town of liquor by hotel keepers is conclusive upon a justice of the Supreme Court in a proceeding taken before him to cancel a liquor tax certificate upon the ground that its holder is not entitled to hold it.
    A statement showing a different result, filed with the county treasurer, by a town clerk who came into office long after the election is a nullity.
    Application for an order revoking and cancelling a liquor tax certificate, issued by the treasurer of Delaware county to Sherman S. Bouton.
    Wagner & Fisher, for petitioner.
    C. L. Andrus and F. M. Andrus, opposed.
    William E. Schenck, for State Commissioner of Excise.
   Mattice, J.

This is an application for an order revoking and cancelling a liquor tax certificate issued by the treasurer of Delaware county to one Sherman S. Bouton, in the town of Middle-town.

At the biennial town meeting held February 12,1901, the voters of that town voted upon the four propositions, pursuant to section 16 of the Liquor Tax Law. At the close of the polls the board of canvassers, consisting of the town clerk and the four justices of the peace, counted the votes upon each proposition ascertained and declared the result and put upon the proper town record a statement signed by each, which statement showed that 396 had voted yes ” and 417 had voted no ” upon proposition number four (selling liquor by hotel keepers only).

Thereafter and on the 9th day of May, 1901, the newly elected town clerk filed with the county treasurer a paper writing, in which he stated and certified that 385 had voted yes ” and 373 had voted “ no ” upon the proposition in question. Thereupon the county treasurer issued the tax certificate here sought to be set aside.

The Liquor Tax Law provides that a liquor tax certificate may be revoked and cancelled by a justice of the Supreme Court, in a proceeding of this nature where it is made to appear that the holder thereof was not for any reason entitled to receive or hold the same.

The learned counsel for the holder of the tax certificate contends, that the certified statement filed by the town clerk in the county treasurer’s office is conclusive. In other words, that even if the certificate is false and does not truly state the number of votes cast for and against the proposition as counted, determined, and recorded by the town board of canvassers, power or authority is not possessed in this proceeding to grant the relief petitioned for.

He next contends that if authority is given by the statute in this proceeding to go behind the statement of the clerk filed with the county treasurer, then the statute gives authority and power in this proceeding to go back of the statement of the town board of canvassers and determine whether such action on the part of the board of canvassers was fraudulent or erroneous. This proposition, while plausible on its face, will not bear scrutiny.

The town board of canvassers exercised functions which were both ministerial and judicial in their nature. It was the duty of the officers comprising such board, not only to count the bal- • lots, but to officially determine in the first instance what ballots should, or should not, be counted. They must pass upon the validity or invalidity of the ballots as they come from the ballot-box. The board of canvassers alone have the right to determine the result of the votes cast. 1 No other officer has the right to determine that result. To the board of town canvassers alone is committed this- duty. Even the town board of canvassers would be powerless to reconvene and recount the vote after having once determined and declared the result. How, then, can it be claimed that the newly-elected town clerk had the right, long afterward, to determine the result of the town meeting by a recount of the votes, and pass upon the validity and invalidity of certain ballots. The proposition is too absurd and silly to be tolerated. Yet this newly-elected town clerk assumed to determine for himself the •result of the town meeting, and disregarded entirely the action of the town board of canvassers, a statement of which he found upon the records of the town when he assumed the duties of his office.

No power or- authority is possessed by a justice of the Supreme <3ourt in this proceeding to go behind the determination of the town board of canvassers and ascertain the result of the votes.

Fraudulent or erroneous action of a board of canvassers can 'only be reviewed by a court of competent jurisdiction in an action or proceeding commenced for that express purpose.

■= In this proceeding, therefore, it must be assumed that the town board of canvassers correctly counted the vote and ascertained the result, and put upon the records of the town a correct statement of such result and vote. Such determination must control in this proceeding. It should have controlled the action of the town clerk in filing the certified statement with the county treasurer. In filing a certified statement with the county treasurer, the town clerk acts in a purely clerical or ministerial manner ; he has no judicial or gno-si-judicial or discretionary power whatever. His act was not ah official determination of the votes cast, or anything else. It was a false certification of the records of his town, and of the official determination of the town board of canvassers. His act was a fraud upon the county treasurer, and upon the people of his town. His “ certified statement ” of the action of the town board, and the records of his town, when shown to be false has no more binding effect in a collateral proceeding than would the false authentication by a county clerk of judicial proceedings of record in his office.

Hadley v. Mayor, 33 N. Y. 603, cited by respondent’s counsel, is not an authority in support of the claim that the clerk’s certificate cannot be attacked collaterally. In that case the clerk certified truly the determination of the board of canvassers. The ’court held that the determination of the board could not be impeached collaterally. The formal certificate of the clerk did not come in question at all. A careful analysis of the authorities will show that it is only in cases where a public officer is clothed with the power to make an official decision or determination that his act is protected from collateral scrutiny. The clerk, in this instance, was vested with no power or discretion whatever, and had no right to make any determination; not even to the extent of adding a column of figures. His was the duty of a mere scrivener. He was required to make a “ copy of the statement of the result of the vote ” as he found it upon the records of the town and file it with the State Commissioner of Excise, and also with the County Treasurer of the County.”

Moreover, the paper so filed does not purport to be “a certified copy of the statement of the result of the vote,” but purports to be a statement of the result made by the newly-elected clerk. In other words, he did not file a copy of the statement made by the town board of canvassers which is required by the statute, but simply filed a statement made by himself which was wholly unauthorized and void, whether true or-false, and the county treasurer was not empowered thereby to issue the tax certificate.

The petitioner is, therefore, entitled to an order revoking and cancelling the liquor tax certificate so issued, together with costs to be paid by the respondent, Sherman S. Bouton. The form of the order and the amount of costs may be settled before me on five days’ notice.

Ordered accordingly.  