
    Frank A. Raymond, Appellant, Impleaded with Richard White and Others, Plaintiffs, v. Maynard N. Clement, as State Commissioner of Excise, and Others, Respondents.
    Fourth Department,
    March 6, 1907.
    Intoxicating liquors — local option — resubmission of question after illegal vote — court has no power to order issuance of liquor tax certificate.
    If a town vote on local option is illegal and of no effect the parties seeking to invalidate the election must find their redress under section 16 of the Liquor Tax Law, providing that if the questions be not properly submitted'at the;' town meeting they shall be again submitted at a special meeting.
    The only way in which a party aggrieved can he relieved from the effect of an improper submission of the excise questions is. by application to have, the submission declared improper and idegal and for a resubmission of the questions to the electors of the town. A court of equity has no power on declaring an election void to order the county treasurer to issue liquor tax certificates.
    Appeal by the plaintiff, Frank A. Baymond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 6th day of August, 1906, upon the decision of the court, rendered after a trial at the Cattaraugus Special Term, dismissing the complaint upon the merits.
    The action was commenced in April, 1906, to-have it adjudged that an attempted submission of 'the excise questions, so called, to the electors of the defendant town, at its biennial town meeting, held on the 7th day of November, 1905, and the statement of the votes cast thereat upon such questions as certified and filed by the board of inspectors, were illegal and of no effect; and to compel the defendant Straight, as county treasurer, to issue a liquor tax certificate to each of the plaintiffs, precisely as if'such submission had not been attempted or such statement of the result of such submission had not been made and filed.
    
      Alexander Wentworth \Garey D. Davie of counsel], for.the appellant.
    
      Royal R. Seott, for the respondents Clement and Straight.'.
    
      James G. Johnson, for the respondent town of Bandolph.
   McLennan, P. J.:

• The facts are not in dispute and are fully stated in the findings of the learned trial court, to which no exception was taken.

So far as material the facts are that during all the times in question the plaintiffs were severally engaged in keeping hotels in the town of Randolph in the county of Cattaraugus, N. Y. At the general election held in and for said town in November, 1903, the four excise questions, so called, were duly submitted to the electors of said town, and .a majority voted in the affirmative upon the fourth of said questions, which in effect permitted liquor to be sold by hotelkeepers in said town. Thereupon ■ liquor tax certificates were issued to each of the plaintiffs and they expended considerable siims of money in preparing to carry on such traffic, which will be practically lost unless they are permitted to continue the same.

At least twenty days before the time appointed for holding the biennial town meeting of the town of Randolph in the year 1905, a petition in proper form, signed .and acknowledged by the requisite number of electors, was filed with the town clerk and in all respects . in accordance with the provisions of the statute in that regard, requesting that the excise questions be submitted to the electors of said town at such election. Pursuant to the request of such petition there w.as an attempted submission of such questions; a considerable number of electors voted thereon; the board of inspectors canvassed the votes- so cast and made and filed a statement of the result, in form and in all respects as required by law, which return or statement declared that a majority of the votes cast were in the negative upon .each of said questions, and, therefore, upon its face such return constituted a bar such as to prevent the county treasurer from issuing liquor tax certificates to the plaintiffs or either of them or to any hotelkeepers in said town of Randolph.

It appears, however; without contradiction, that because of acts or omissions on the part of the officers of said town and of the board of inspectors, done or omitted subsequent to the filing of the petition as aforesaid, and none of which appeared upon the face of the return of the inspectors made and filed as aforesaid, the said excise questions were not properly submitted, and that the result as declared was false and erroneous. Ooncededly the plaintiffs were aggrieved by the result thus falsely and erroneously declared by the board of inspectors and they are entitled to be relieved from the effect thereof. '

The only question presented by this appeal is whether the plaintiffs can’ obtain relief in an action in equity, or must they seek redress in the manner provided by section 16 of the Liquor Tax Law ? Unless the statutory provisions furnish n.ot only a remedy but the exclusive means of righting the wrong complained of unquestionably a court of equity would have jurisdiction in ' the premises. The cases cited by counsel for appellants fully sustain that proposition. Those authorities also hold in effect that in order to oust a court of equity of jurisdiction of a matter which it' formerly possessed by statutory enactment, the terms of the statute must be explicit to that effect, or it must result by necessary implication. In the case at bar the statute does not. in words say that its provisions shall furnish the exclusive remedy by which wrongs such as are complained of by the appellants maybe remedied, but we think that by necessary implication such is the meaning of the statute.

The Liquor Tax Law provides a full- and complete system of local option for towns. Its provisions, so far as it is important' to consider, are as follows:.

“ § 16. Local option to determine whether liquors shall be sold under tbe provisions of this act.— In order to ascertain the will of the qualified electors of each town, the following questions shall be submitted at each biennial town meeting hereafter held in any town in this State, provided the electors of the town to the number of ten per centum of the votes east at the next preeeding'general election shall request such submission by written petition, signed and acknowledged by such electors before a notary public or other officer authorized to take acknowledgments or administer oaths, which petition shall be filed not less than twenty days before such town meeting with the town clerk of the town: ”

■ The fourth question to be .submitted under this provision is in effect, Shall .any person be authorized to sell liquor in connection with the business of keeping a hotel ? The section then provides what shall be done by the town officers and others charged with the duty of conducting .the election, and then provides': “As soon as the town meeting or election shall be held, a return of the votes cast and counted shall be made as provided by law, and if the majority of the votes shall be in the negative, or if the number of votes cast for arid against shall be equal on either of such questions, no * * * person shall thereafter so traffic in liquors or apply for or receive a liquor tax certificate. * * * If for any reason except the failure to file any petition therefor, the four propositions provided to be submitted herein to the electors’of a town shall not have been properly submitted at such biennial town meeting, such proposition shall be submitted at a special town meeting duly called.”

The statute then prescribes the manner of holding such special town meeting, the canvassing, certifying and returning of the votes cast thereat, and then provides that no liquor tax certificate shall be issued authorizing the traffic in liquor in said town when a majority 'of the votes cast have heen in the negative 'upon such excise questions. (Laws of 1896, chap. 112, § 16, as amd. by Laws of '1905, chap. 680.)

It would thus seem clear that it was the purpose of the Legislature to permit the electors of a town to determine whether or not liquors should be sold within, its boundaries, and that the method prescribed for ascertaining their wishes in that regard was to submit the excise questions, so called, to such electors. To bring about such a submission under the statute, the electors could only sign, acknowledge and file with the town clerk- in the manner required by law a petition requesting the submission to the electors of the excise questions. If the result of such election as declared by the inspectors "was in accordance perchance with the desires of the petitioners, it would seem incongruous that they should be compelled to attack its validity in order to obtain the resiilt desired by them, to wit, the prohibition of the sale of liquors in said town. But, aside from that, the scheme of the statute clearly was to provide for local option notwithstanding the excise questions were not properly submitted at any election. In such case the statute expressly provides for a resubmission of the questions to the electors. Row, if a court of equity has jurisdiction to determine that such questions were improperly submitted and that the result of such submission as declared had no binding force or effect and, therefore, compel the issuance of liquor tax certificates precisely as if such submission had not been attempted, then the local option feature of the statute would practically be annulled. As we have seen,, the statute. provides that a proper petition having been filed by the. requisite number of electors the electors of the town shall determine whether or not liquor shall be sold, and in cáse such questions are' improperly submitted, a special town meeting shall be held at 'the instance of' any party aggrieved to settle the question.

If. the contention of appellants is correct,, in case error or mistake is made by those charged with the conduct of such1 submission, a court of equity may declare such mistakes or errors to be fatal to such submission and practically decree that liquor may be sold in said town irrespective of the wishes of á majority of the electors therein, and if the contention of the appellants is correct another very strange situation might arise. Those opposed to the sale of liquors in any town, feeling possibly ■ that the submission of the excise questions as attempted to be made was illegal or irregular, 'might apply under the provisions of the statute for a 'resubmission of the questions to the. electors, and upon such résubmission.'the vote might be adverse to tlie sale of' liquor in said town, and yét a court of equity might declare in an action like, this, either immediately before or after the result of such vote was declared, that the former, submission having been irregular the county treasurer should be compelled to issue liquor tax certificates authorizing the sale of liquor in said town. ■ -

Under such conditions it may be seen that two judgments absolutely .conflicting might be rendered. By- the provisions of the statute under the Liquor Tax Law by- an order of the Supreme or County Court ora justice or judge thereof” á submission of the excise questions may be declared to have been improperly submitted and a special town meeting ordered to again vote upon such questions. If appellants’contention is sound a court of equity might determine that such submission was valid and -binding and render judgment absolutely in conflict with‘that , rendered by the other tribunal. Such incongruous situation could not have been contem.plated by the. Legislature, but rather it was intended that the Liquor Tax Law should, provide in.and of itself the means by which the electors of any town might determine whether or not intoxicating liquors should be. sold therein, and that if such will was erroneously - or improperly declared at any election the only means of correcting the error was by a resubmission of the questions to the electors at a special town meeting called and conducted in the manner prescribed by the statute.

Independent of the logic of the situation we think this court is bound by its former decision upon the question. In Matter of O’Hara (63 App. Div. 512) Mr. Justice 'Williams, writing for the court, said : “ The remedy for a failure to properly submit the question at the town election was the resubmission thereof at a special town meeting duly called.” (See, also, Matter of Town of La Fayette, 105 App. Div. 25 ; Peojple ex rel. Oaffrey v. Mosso, 30 Mise. Rep. 164.)

In the O’Hara case the precise question was not involved, and it may be suggested that the language quoted is dietum so far as the case at bar is concerned. However, we now decide that the only way in which a party aggrieved can be relieved from the effect of an improper submission of the excise questions is by application to have such submission declared improper and illegal and for a resubmission of the questions to the electors of the town ; that the remedy prescribed by the statute is exclusive and that the trial court upon the conceded facts had no jurisdiction in the premises.

It follows that the judgment appealed from should be affirmed, with costs.

All concurred; Kruse, J., in result only.

Judgment affirmed, with costs.  