
    Matter of the Application for the Resubmission to the Electors of the Town of Bath, of the Questions of Local Option under the Liquor Tax Law.
    (Supreme Court, Steuben Special Term,
    February, 1916.)
    Election Law, § 341 — requirement of board of elections to provide ballots— town meetings — Liquor Tax Law — local option — when election not invalid.
    It was the plain legislative intent, when the Election Law was amended creating boards of election in each county, to transfer to such boards the management and control of elections in their respective counties and- all" political subdivisions thereof including the submission of all propositions which were to be voted on at general elections, and where notices of local option questions under section 13 of the Liguor Tax Law were published and posted by the board of elections for a local option election which was held in connection with the general election the publication is a valid one.
    Under section 341 of the Election Law, requiring boards of election to provide ballots for all elections except those at town meetings-held at times other than a general election,-, the exception has no application to a town meeting held at the same time as a general election, and ballots furnished for a local option election thereat are valid.
    Where no objection was made that'notices óf a'local option election published and posted in proper form by the board of elections should have been issued by the town clerk,, the election which was held openly and was free from fraud or deceit will not be declared invalid because of the irregularity in the procedure, the statutes having been substantially complied with.
    Application for a resubmission of local option questions in the town of Bath.
    Reuben R. & William K. Lyon, for petitioners.
   Clark, J.

In the fall of 1915, a petition was filed with the town clerk of the town of Bath, asking to have the local option questions under section 13 of the Liquor Tax Law submitted to the voters of that town, and the town clerk filed with the county clerk and commissioners of elections certified, copies of said petition, and posted and published notices of such- submission, as required by law.

The commissioners of elections of Steuben county also published notices of-the submission of said propositions, and caused them to be posted as required by law, and the ballots for voting said propositions were furnished by the" commissioners of elections. It will thus be seen that everything had been done to properly bring the questions of local option in the town of Bath before the voters, as required by law, twice — by the commissioners of elections of Steuben county, and also by the town clerk of the town of Bath. ¡

In order to avoid confusion, on the 25th day of October, 1915, a peremptory writ of mandamus was procured out of and under the seal of the Supreme Court,' commanding the town clerk to suspend further proceedings with reference to the submission of the local option propositions under the Liquor Tax Law, and the election as had under the direction of the commissioners of elections, and ballots furnished by them were used. This was done without question or protest from anybody and no appeal was ever taken from said order.

The propositions submitted were voted down, the town went dry, and now four petitioners ask for a resubmission of said propositions at a special town meeting on the alleged ground that the election was null and void because the posting and publishing of notices and furnishing of ballots was done under the direction of the commissioners of elections instead of the town clerk.

No question is raised but that the notices as required by section 13 of the Liquor Tax Law were published and posted and that the ballots therein referred to were furnished and that a full, fair and honest expression of the voters of the town of Bath was had when these propositions were voted on at the last general election in said town. . The only objection urged and the only reason assigned for a new election is that the notices were published and ballots furnished by the wrong party.

Several cases have been cited by counsel for petitioners, but in not one instance, so far as I have been able to discover, was any notice at all given as required by section 13 of the Liquor Tax Law, of the purpose to submit local option questions to the voters.

The Liquor Tax Law was passed nearly twenty years ago, and the object and purpose of the local option section (§ 13) was “ the right of the electors of ■the town to determine whether liquor should be sold within its boundaries.”

At that time there were no commissioners of elections, and the town clerks and several towns were charged with the duty of giving the notices required by section 13 of the Liquor Tax Law. It remained in that situation until 1908, when by act of the legislature (Laws of 1908, chap. 492) the office of commissioners of elections in the county of Onondaga was created, and by section 4 of that act it was provided: “ The commissioners shall have and exercise all of the jurisdiction, power and authority conferred, and be subject to all the duties and obligations imposed by statute upon all officers of the county, and its political subdivisions with respect to general, special and primary elections,' and submission of questions or propositions within such county and its political subdivisions.”

Under this act the powers and duties previously imposed upon the town clerk in the county of Onondaga were transferred to the commissioners of elections of that county. Later, and in 1909 (Laws of 1909, chap. 22), this act was made a part of the Election Law of the state. Subsequently, and in 1911, the Election Law of the state was amended, and in each county of the state there was created a board of elections to be known as commissioners of elections.

A careful reading of chapter 649' of the Laws of 1911 shows clearly a legislative intent to vest in the boards of elections of the several counties all powers and functions relating to elections in their respective counties, and by section 190 of said Election Law, as amended in 1911, it was provided: “ Each of said boards of election .shall be and is hereby charged with the duty of executing the laws relating to all elections within their respective cities or counties, except as otherwise provided by law.”

By section 205 of the Election Law it is provided that all notices of election, which are required by law to be published, advertised or posted in any county or political subdivision thereof, shall be published, advertised or posted by the board of elections, and by section 202 of the Election Law (Laws of 1911, chap. 649) the boards of elections were made custodians of the primary records of each political subdivision for which the boards were appointed, and by section 206 it is provided that: “The said boards of elections in any such county shall be charged with the duty of performing each, every and all of the duties which now devolve upon the county clerk or commissioners of elections of said county, relating to elections, excepting that the county clerk of each county shall continue to be the secretary of the board of county canvassers.”

It will thus be seen that there was a plain legislative intent when the Election Law was amended creating boards of elections in each county to transfer to such boards the management and control of elections in their respective counties and all political subdivisions thereof, and that would include the submission of all propositions which were to be voted on at the general election.

It is urged that section 341 of the Election Law makes it the duty of the town clerk to post the notices and furnish ballots in cases of this character, but I think the exception referred to in that section relates to town meetings held at different times than with the general election, and reading the section as a whole it means that this duty should devolve upon the town clerk when the town meetings are held at a different time than with the general election. It does not conflict with the general purpose of the statute to have the commissioners of elections in the various counties have full charge thereof including publishing and posting of notices with reference to the submission of town propositions, when these propositions are to be submitted to the electors at the time of a general election, which was done in the case at bar, for section 341 of the Election Law provides that: " The board of elections in each county * * * shall provide the requisite number of official and sample ballots * * * for each election district in each county, for each election to be held thereat, except that when town meetings * * * are not held at the same time as a general election, the clerk of such town * * * * * * shall provide * * * ballots and stationery for such election or town meeting.”

In our scheme of government the majority should rule, and if the choice of the voters on any proposition submitted has been ascertained, and that result has been fairly and honestly accomplished, with no trickery or fraud or deception, the voice of the majority of the electors thus honestly ascertained should not be thwarted because of an irregularity in procedure which does not go to the substance of the controversy.

It is not claimed in this case but that the proper notices, as required by section 1.3 of the Election Law, were printed, published and posted, as required by that law, and ballots furnished as required, the only possible ground for asking that this election be set at naught being that this work was done by the election commissioners of the county instead of the town clerk. It is not claimed that the vote on the various propositions was not large, or that the majorities were not substantial and representative.

If no notice of the submission of these propositions had been given, a very different question would have arisen, but here full notice was given that these propositions were to be submitted, and the notice was that which the law required, and to say that the expressed will of a majority of the electors of the town of Bath shall be set at naught simply because the notices were given and ballots furnished by the election commissioners instead of the town clerk is splitting hairs over an important right belonging to citizens who expressed their wishes at the polls.

In this case the ballots were cast, the result of the election declared, and everything about the election was done with the full knowledge on the part of everybody as to who published the notices and furnished the ballots, because the matter had been before the court some days prior to the election, and there was never a word of protest by anybody as to the regularity of the procedure, and now, after the wish of the people of Bath had been honestly ascertained, it should not be set aside on a technicality which in no way can be said to go to the substance of the controversy.

A case very similar to this arose in Onondaga county in 1914, which was passed upon by the Appellate Division of this department. The facts in that case are much nearer the facts in the case at bar than any case that has been cited by counsel, and it is the single and sufficient authority for holding that the power of town clerks with reference to publishing notices as to the submission of local option questions under the Liquor Tax Law has been taken away from them and is vested in the boards of elections of the various counties. Matter of the Town of Onondaga, 163 App. Div. 191.

Even though the publishing of the notices of election and the furnishing of ballots were done under the direction of the commissioners of elections of Steuben county instead of the clerk of the town of Bath; the notices required by law were given, there was a substantial compliance with the terms of the statute, and, no fraud or deceit having entered into this matter in the' slightest degree, the will of the electors as expressed at the polls should be upheld. This application must be denied.

Application denied.  