
    Supreme Court, Onondaga Special Term,
    December, 1899.
    Reported. 30 Misc. 164.
    The People ex rel. James M. Caffrey, Relator, v. Thomas Mosso et al., as Inspectors of Election in various Districts of the Town of Volney, Oswego County, New York, and William P. Hillick, as Town Clerk of said Town of Volney, Defendants
    Liquor Tax Law—Illegal submission of local option—Remedy.
    The first and last, of the four questions which are to he submitted to town electors upon the question of local option, are related to each other, and where the fourth question as printed, omits the final clause required by statute, “if the majority of the votes cast on the first question submitted are in the negative,” the variation is material and the election is void.
    The remedy of a party aggrieved is not by mandamus, to compel the inspectors to reconvene and reject the ballots upon which the fourth question was not printed in the manner required by statute, but there must be a new special election, at which all four questions must be submitted again.
    Application for a writ of peremptory mandamus commanding the above-named inspectors to reconvene and recount all of the proposition ballots returned as cast and counted by them on excise questions 1, 2, 3 and 4, in the recent election in said town, and to reject as void- in their canvass all ballots upon which excise question number four is not printed as required by section 16 of the Liquor Tax Law, and to make their amended return accordingly, etc.
    John W. Hogan and Frederick G. Spencer, for relator.
    S. B. Mead, for defendant Hillick.
    Charles G. Baldwin and Arvin Rice, for defendants Webb and others.
   Hiscock, J.

At the election held in and for the town of Volney, county of Oswego, upon November 7, 1899, the attempt was made under the provisions of the Liquor T¿x Law, and especially section 16 thereof, to have the inhabitants of said town vote upon the question of selling liquors in the various manners prescribed by law in said town. This controversy arises over the form in which question number four, enumerated in that section, wa§ printed upon the ballot and submitted to the votes of the inhabitants. This application is founded upon the claim and theory that said question was improperly printed upon the ballots; that said ballots as to that question at least were void, and should not have been counted or returned by the inspectors.

I will consider first whether the question under consideration was properly printed upon the ballots and submitted to the voters. Section 16 provides that upon the face of the ballot to be voted at such town meeting, by all persons who may legally vote thereat, “ shall be printed the following questions submitted.” The first question relates to the selling of liquors to be drunk on the premises where sold. The second question relates to selling liquors not to be drunk on the premises where sold. The third question relates to selling liquor as a pharmacist on a physician’s prescription. The fourth question is the one under consideration, and the language of the statute is, “■ Selling liquor by hotel keepers: Shall any corporation, association, copartnership or person be authorized to traffic in liquors under subdivision one of section eleven of the liquor tax law, but only in connection with the business of keeping a hotel in (here insert the name of the town), if the majority of the votes cast on the first question submitted are in the negative ? ”

At the election in said town in November, this fourth question was printed upon the ballots as follows: “ Selling liquor by hotel keepers. — Shall any corporation, association, copartnership or person be authorized to traffic in liquors under subdivision one of section eleven of the liquor tax law as a keeper of a hotel in the town of Volney?” The last wording actually employed upon the ballots was that of the statute before the amendment of the law of 1897, which provided for the form of question first above quoted.

The vote upon the propositions submitted at the election in question was

Number. Yes. No. Blank.

Proposition .................... 1 493 607 262

“ 2 460 586 241

« 3 591 453 241

« 4 525 544 196

The language of the statute prescribing the form in which "these questions shall be printed upon the ballots is mandatory, and, I presume, it will be conceded that any material difference between the form dictated by the statute and that employed upon the ballots, would be fatal. The only question is whether the variation in the form of question number four as used upon the ballots from the form prescribed by the statute, is a material one. I think it is. Beyond any doubt the same result could be attained by a voter employing the forms of questions printed on the ballot which was submitted to him at the election in Volney that could have been attained if the fourth question had been printed upon the ballot in the form prescribed by the statute. He could vote “ No ” upon question number one and “ Yes ” upon question number four, and thus, while voting against the general issue of licenses, as covered by question number one, vote in favor of hotel licenses. But the fact that the Legislature saw fit to change the form of question number four in the respect that it did is some evidence upon this question of materiality. One apparent result of making the change was to call more plainly to the mind of the voter the relation between question number four and number one, and to emphasize the fact that he could, by voting “ Yes ” upon question number four, and No ” upon question number one, favor the selling of liquor by hotels and not by saloons. There may have been other purposes in the changes made by the amendment of the law of 1897, but if the amended form of question did nothing more than I have indicated it could not be disregarded as immaterial.

The inquiry next arises as to how far the defective wording of question number four, and the resulting ineffectiveness of the voting upon that question affects the voting upon the other three excise questions submitted at the same time. And upon this question, I reach the conclusion that if the election is to bo regarded as invalid as to the fourth question, it should be so treated as to all of them. Questions number one and four are certainly so related to each other that they should be voted upon at the same time. Questions two and three are closely related to each other, and while not so closely related to questions number one and four as they are to each other, still they form part of one entire system for submitting to the people of a town the question of local option. It might very well be that a voter’s choice in voting upon one of the four questions would be affected by his power to vote in a certain way upon others of them; that in order to work out a vote upon the general subject of selling liquor which yvould be satisfactory to him, it would be necessary for him to vote upon all of these questions. It is true that this purpose might be answered to some extent by the voters passing upon question number four, and assuming and knowing what the Results of an election at a prior date had been upon the other three questions. But this does not strike me as being the purpose or intention of the statute.

The remaining question is whether the relator has sought the proper relief in his application for a mandamus. I do not think he has. My attention has been called to no authority which would enable the inspectors to reject as void the ballots cast ar the recent election because of the improper wording already commented upon. Wherever ballots have been cast out and rejected as void under the present election laws, it has been for reasons far different from that urged here as the basis for a mandamus. All of the cases which have been called to my attention whicti have directed such rejection to be made have been based upon the theory that the ballots were to be treated as marked ballots, or were in such form that they might be made the instruments of fraud, or avoid the provisions of the election law. That is not this case at all. Moreover, the granting of a writ of peremptory mandamus is more or less discretionary, and the general rule is that it will not be granted where there is some other adequate remedy. The Liquor Tax Law itself expressly provides the manner in which such an error as that found here may be corrected. It provides expressly for a special election where the propositions already commented upon have not been properly submitted at an election. In the language of this provision for a new election is also found authority for the opinion above advanced, that all four propositions should be submitted instead of the one in regard to which the error has been made. Even if a writ of mandamus should be granted, as requested by the petitioner, the ultimate effect thereof would be to lead to a new election, and to a proper submission of the questions. Therefore, I think this application should be denied in the first instance, and the correction of the error complained of left to a new election, in accordance with the provisions of the statute.

The application for a writ of mandamus is, therefore, denied, with ten dollars costs.

Application denied, with ten dollars costs.  