
    The People ex rel. E. Brayton Guernsey, Relator, v. Henry B. Pierson et al., Composing the Board of Officers of the Town of Ellisburg, Respondents.
    (Supreme Court, Jefferson Special Term,
    July, 1901.)
    Election af a town meeting held by districts — Town law governs — Irregularities not fatal. -
    An election at a town meeting, in a town where such meetings are held by districts, on a day other than a general election day is not governed generally by the Election Law (L. 1896, eh. 909), but mainly by the Town Law.
    
      The town canvassing board cannot be directed to convene, recanvass / the votes cast a,t such an election (on the local option questions), and, in so doing, reject, for irregularities, returns from certain districts, unless the returns attacked are wholly void.
    Where the people of a town have expressed their will at an election, it should not be overridden because of the negligence and carelessness of the town officers.
    The following deviations from the Town Law (L. 1890, ch. 569, § 38, renumbered, and amended by L. 1899, ch. 168, § 2), were regarded by the court as not fatal:
    That, in two districts, the inspectors selected one of their number as poll clerk;
    That, in some districts, the poll lists were not subscribed as required by the statute;
    That, in one district, the inspectors did not return how many ballots were void, it appearing that the void ballots were inclosed by them in a sealed package and filed with the statement of the canvass;
    That, a supervisor of the town, who took no part in the canvass, was present at it and signed the statement of ft.
    Application- for a peremptory writ of mandamus directed to the defendants composing the board of canvassers of the town of Ellisburg, requiring them forthwith to convene as a board of canvassers at the office of the town clerk in the town of Ellisburg and recanvass the votes upon the questions submitted under the Liquor Tax Law at the town meeting held in said town on the 19th day of February, 1901, from the statements of the inspectors of the several election districts as delivered to them on or about the 20th day of February, 1901, and to reject, throw out and wholly disregard the statements and returns from the first, second, third and fifth election districts, and from any other, if any, in which the said election was not legally conducted by a properly constituted election board, and directing the defendant Hallett, as town clerk, to enter the result of such recanvass in the minutes and in the town records, as required by law in case of the original canvass of the votes of a town meeting; and further directing the said town clerk to immediately file with the State Commissioner of Excise, and also with the county treasurer of the county of Jefferson, a certified copy of the statement of the result of the vote as corrected by such recanvass.
    
      Arthur L. Chapman, for motion.
    Mason M. Swan and A. O. Briggs, opposed.
   Andrews, W. S., J.

It seemed to have been assumed upon the argument of this motion that the General Election Law of the State (L. 1896, ch. 909) is applicable to such an election as is here called in question. I doubt if this is so. Sections 18, 58, 63, 85, 86, 81, 111, 113, and perhaps others of this statute refer to, and to some extent regulate or affect town meetings not held on general election days; but such meetings are governed entirely by the Town Law (L. 1890, ch. 569), except in so far as this latter act incorporates into itself the provisions of the former statute. Matter of Larkin, 163 N. Y. 201. At town meetings the justices of the peace preside, and the town clerk acts as the clerk. A poll-list and minutes of the meeting, subscribed by the clerk and the presiding officers, are to be kept and filed in the town clerk’s office. If, however, there is no general meeting and the town is divided into districts, the election inspectors in each district appoint a poll clerk and they and he have the same powers and duties as the justices and town clerk at general meetings.

When an election is held under suph circumstances, at the close of the polls the inspectors canvass the ballots and make a statement of the number cast for each candidate and for or against every question or proposition. “ The void and protested ballots, and the voted ballots other than void and protested shall be preserved and disposed of by the inspectors in the manner provided by section one hundred and eleven of the election law.” L. 1899, ch. 168, § 2,‘ amending Town Law, § 38. That is, they shall be enclosed in a sealed package and filed with a statement of the canvass. This statement is to be in the same form as statements made by inspectors at general elections. Its form is, therefore, fixed by the same section 111 and by section 84. There is to be first a return of all the ballots voted and the number voted for each candidate or proposition; the number of ballots marked for identification ” shall be given, and also the number of ballots rejected as void. At the end shall be a certificate that the statement is correct. It is then to be delivered to the justices of the peace of the town and the town clerk, who shall convene and act as a town canvassing board.

The form of questions in regard to the sale of liquors, the way in which such questions shall be submitted and the manner in which ballots are to be prepared and furnished are regulated by section 16 of the Liquor Tax Law (L. 1896, ch. 112).

In determining whether or not this is a proper case for granting a peremptory writ of mandamus oply those facts contained in the relator’s papers which are undisputed may be considered. On the other hand all the relevant facts stated in opposition to the motion, and properly pleaded, are deemed to be true.

It appears that the relator is a resident of and a hotel-keeper in the town of Ellisburg, Jefferson county, and that until May 1, 1901, he was authorized to traffic in liquors in said town as a hotel-keeper under the Liquor Tax Law of the State. On May eighteenth he applied to the county treasurer for a further certificate authorizing him to continue such traffic in liquors for the year ending May 1, 1902, but such application was refused. It further appears that the town of Ellisburg is divide^ into five separate election districts, and that at a town meeting held on February 19, 1901, the local option questions set forth in the Liquor Tax Law were properly submitted to the electors of the said town. As a result of such election and canvass made of the votes cast thereat the town clerk filed with the State Commissioner of Excise and with the county treasurer of Jefferson county, a certificate purporting to show that the majority of the votes upon all the questions, so submitted was in the negative. It was in reliance upon this certificate that the application of the relator was refused by the county treasurer. Thereupon the relator makes this application claiming that the said election was, in many respects, irregular and that the canvass of votes made thereat, both by the district inspectors and by the town canvassing board, failed to comply with the statute.

In view of the decision of the Court of Appeals as to the law controlling town elections many of the objections as to the acts of the election inspectors become immaterial. But certain irregularities do appear. Perhaps the most important are the following:

1. The statute (L. 1899, ch. 168, § 2) requires the appointment of a poll clerk in each election district who is required to keep a poll list. The office of these clerks is distinct from that of the inspectors, and the intention of the law is that the two offices shall not be combined in the same person. Yet in two of the districts, at least, the inspectors selected one of their own number to act as poll clerk.

2. A poll list should be kept by the clerk and this list, subscribed by him and by the election inspectors, is to be kept and filed in the town clerk’s office. ■ These lists seem to have been made, but in some instances, a at least, they were not subscribed in the method designated.

3. In the second district of the town this poll,list shows that 228 persons voted upon the excise question. In the returns made by the inspectors less than that number of votes are accounted for. On the fourth question, for instance, which is the one in which the relator is interested, the returns show 113 votes “ Yes ” and 77 votes No,” making a total of 190. No statement was made as to the missing 38 votes. But it appears from the affidavits presented on this motion that these 38 were blank and void. If so, the number of void ballots, at least, should be stated.

4. The town canvassing board consists of the justices of the peace of the town and the town clerk. One of such justices was .not present at the canvass of the votes, but there was present one J. P. Wodell, the supervisor of the town. He, however, took no part in the canvass except to sign it as supervisor.

This being the condition of affairs, the relator claims that he should not be deprived of his right to traffic, in liquors; while on the other hand the defendants claim that, whatever irregularities may have been committed, the people of the town have expressed their will and that the result should not be overridden because of the negligence and carelessness of the town officers. I agree with the defendants and think that the application should be denied.

The matters complained of do not enter into the essence of the election. They are matters of procedure concerning which the statute gives directions. The failure to comply with these directions, however, does not render the election void.

The relief asked for is that the town canvassing board be directed to convene and recanvass the votes, and upon such recanvass reject and disregard the returns from certain districts in which these irregularities occurred. This cannot be granted unless the returns complained of are wholly void. Otherwise the canvassing board has done its full duty. They are to canvass the returns made to it. They have no power to recall the inspectors and compel them to correct irregularities. If they met again they could only repeat what they have already done. As has been said, in two districts supervisors were elected to act as poll clerks. This was an irregularity, but the office was filled and the duties of the office were performed. The person so acting was, at least, a ds facto officer, and the fact of his so acting seems to have cast no uncertainty on the result.

The poll lists also were not properly subscribed. But with them the town canvassers had nothing to do. If they were wholly lacking it would have been still their duty to have canvassed the vote upon the returns made by the inspectors. ■

So in regard to the void ballots. Apparently, such ballots were inclosed, as the statute directs, in a sealed package and filed with a statement of the canvass. The failure of the inspectors to state in their return how many were void does not affect in any way the certainty of the result and should not be used as a pretext for overriding the express wish of the electors of that district.

The fact that the signature of Mr. Wodell was attached to the canvass made by the town board is immaterial: He was not a member of that body, but his presence in the room while they were performing their duties, and the addition of his signature to their certificate, does not vitiate their action.

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

Application denied, with ten dollars costs.'  