
    Supreme Court, Onondaga Special Term,
    March, 1900.
    Reported. 30 Misc. 682.
    Matter of the Application of Eugene Sullivan for a Special Town Meeting in the Town of Volney, under the Provisions of Section 16, Liquor Tax Law.
    1. Liquor Tax Law—Resubmission of local option—Town clerk’s call of
    special town meeting.
    Where an attempt to resubmit the question of local option to town electors has been held irregular, and a proper petition of electors for another submission at a special town meeting, as well as a petition to procure an order for calling such meeting, are filed with the town clerk on the same day, the impossibility of his calling the meeting within five days from the filing of the electors’ petition, as required by statute (Laws of 1896, chap. 112, § 16, as amended by Laws of 1899, chap. 398, § 1), does not affect the validity of an order which directs the calling of such meeting, as, under such circumstances, the clerk has no right to call a meeting until the court has ordered it.
    2. Same—Special town meeting may be held at any time.
    A special town meeting for such a purpose may be called at any time. The statutory provision of said section 16, that it may be called at any time during an even-numbered year after 1899 “provided said even-numbered year be the second year succeeding the year when said four propositions were last or might have been lawfully submitted,” is permissive merely, and will not be regarded as mandatory where a strict construction of the clause would, for two years, deny the electors the right to vote upon the questions of resubmission and local option.
    
      Application for a special town meeting under the provisions of section 16 of the Liquor Tax Law.
    
      F. G. Spencer, for petitioner.
    
      S. B. Mead, for town clerk and others.
    
      Piper & Rice and C. G. Baldwin, in opposition to application.
   Hiscock, J.:

At the regular town meeting, town of Volney, Oswego county, in November, 1899, an attempt was made to submit the four propositions defined by section 16, Liquor Tax Law " (Laws of 1896, chap. 112, § 16, as amended by Laws of 1899, chap. 398, § 1), to a vote of the electors of that town. This court has held that for reasons, which it is unnecessary here to state, said propositions were not properly submitted. The petitioner now seeks an order of this court authorizing or directing a special town meeting at which said propositions may be properly submitted. It appears without dispute that a petition proper in form and signed by the requisite number of electors asking for such meeting and submission has been duly filed with the town clerk. The opposition to the granting of the order sought and to the holding of such special meeting is based upon certain clauses in said section 16, which it is claimed prohibit the same.

The first ground of objection is found in the clause which says that “in the case of the calling of any special town meeting under the provisions of this act upon filing the petition hereinbefore mentioned and described with the town clerk, such clerk shall within five days after the filing of such petition call a special town meeting at a time not less than twenty days nor more than thirty days after the filing of such petition. The town clerk shall within five days cause to be printed and posted” notices, etc.

The petition of the electors for another submission was filed with the town clerk January 8, 1900. The petition in this proceeding was made the same day, and the hearing of the application thereon noticed for the Special Term held January twentieth. The town clerk has not complied with and now of course can not comply with the literal wording of the clause just quoted saying that he shall institute proceedings for the holding of the special town meeting within five days after the filing with him of the electors’ petition therefor. I think this clause, however, must be read and construed in connection with the other provisions of the section. One of them is that “Such special town meeting shall only be called upon the filing with the town clerk, the petition aforesaid and upon an order of the supreme or county court or a justice or judge thereof respectively upon sufficient reason- being shoAvn therefor.” In other words, after the petition had been filed with him, as in this case, the town clerk had no right to comply with the other provision directing him to make a call within five days. He Avas obliged to wait until the requisite order should be obtained before he could make any call at all, and I think that the time occupied in obtaining such order should not be counted, as part of the time limited for his calling the meeting. Of course a literal compliance Avith both provisions could be secured by Avithholding the filing of the petition with the town clerk until application had been made for the necessary order, or by obtaining such order ex parte and without notice to anybody, which could probably be done Avithin five days. I think either of these courses would be objectionable, and that it is better to construe the provisions as I have done. The proper place for the petition when executed is with the town clerk, where any person interested can inspect it, and the fact that it is there ought to appear when application is made for the order. Nor is it desirable that an order of this kind, involving at least considerable expense to the town if a new election is directed, should be granted without notice to be filed with the petition.

The second objection to this application is based upon the clause in section 16, which reads: “A special town meeting may be called at any time during an even-numbered year hereafter, provided said even-numbered year be the second year succeeding the year when said four propositions were last or might have been lawfully submitted.”

The meeting which the petitioner desires to have called is clearly designated by the provisions of this section as a “ special tOAvn meeting.” The regular town meeting at which the attempt Avas made to submit these propositions occurred in November, 1899. Therefore, if the provision last quoted is to be regarded as fixing and limiting the time when a special meeting may be held to vote again on these propositions, as it is claimed by counsel i t does, there never can be held such a meeting. For it will be impossible of course to get an even-numbered year which will be the second year succeeding 1899, when the propositions “were last or might have been lawfully submitted.”

Again, however,-1 do not think the restrictive or prohibitory-construction contended for is to be adopted. I confess I do not discover what the purpose of this clause is or what object it answers except to confuse and obscure the meaning of this section, which is sufficiently involved at best. Before it occurs a complete method is pointed out for securing a special meeting at which the nullifying effects of an irregular or improper submission of the excise propositions at a regular town meeting can be remedied by a new vote. No time is fixed within which this special meeting may or must be called except that the town clerk must act within a certain time after the filing of the electors’ petition.

The section under discussion in its first provisions fairly indicates the expectation that such meetings will be called at any time and at irregular periods. This is to be expected from the mere fact that the meetings are special ones. If they were to be held at regular prescribed times there would be no sense in having the provisions at all. This intent is also to be gathered from another special provision. Provision is made for the submission of these questions every second year. Then occurs the provision for a special meeting in such a contingency as exists in this town. Then follows a clause that “ the time for the resubmission of such propositions shall be reckoned from the date of holding the regular town meeting at which they should have been submitted.” The “ résubmission ” here provided for is clearly the regular biennial one above referred to, and in providing that the computation of the time for its occurrence is to be, reckoned from one regular annual town meeting to another similar one, the statute undoubtedly contemplates that special meetings may be held at irregular dates during such regular periods.

The general intent and purpose of the statute is that the electors shall have an opportunity at least once in two years to vote upon these questions, and that they shall not be deprived of this opportunity for a whole period of two years because mistakes have been made in the conduct of an election. Take this case as an illustration. As I understand it the real contest in the town at the November election was over the selling of liquors .by saloons and hotels. A large number of inhabitants of the town are opposed to sales by either. At the election two years before this one-the vote was in favor of selling at least by hotels. The last or 1899 election has been held irregular. The question, therefore, presents itself whether if there cannot be a special election the hotels will not be entitled to a continuance of their right to sell liquor under the prior election and without any opportunity to the electors to pass upon that question for another period of two years. In fact, that is substantially the position taken iipon this hearing by the counsel who really represents the opposition in the town to the sale of liquors.

I think it would be unfortunate by giving the construction claimed for the clause first quoted upon this last point, to bring about a denial to the electors of Volney of the right to vote upon and regulate these questions as it was the intention of the statute they might do. The wording of the clause in question quoted is permissive merely. The authority for such meetings without any such limitations is found in the earlier provisions of the section. It does not seem reasonable or necessary by giving the later words a prohibitory instead of a permissive construction to limit what precedes them and thus overturn the general purpose of the statute.

The application, therefore, is granted.

Application granted.  