#### The People ex rel. Dorr C. Smith, Petitioner, *v.*William H. Foster, as Treasurer of the County of Cortland, N. Y., Respondent.

(Supreme Court, Cortland Special Term,

May, 1899.)

Liquor Tax Law —Vote against local option -- Town clerk’s certificate of the result — Justifiable refusal of county treasurer to issue liquor tax certificate. ■'

A statement signed and filed by a town clerk with a county treasurer, showing, by a recapitulation of the votes cast on the four ques- ■ tions submitted to a town meeting on the issue of local option in the sale of liquor, that the tbwn has voted against it, is a sufficient “ certified copy of the statement of the result of the vote ”, within the provisions of the- Liquor Tax Law, to justify the county treasurer in a. subsequent refusal to issue liquor tax certificates in the town.

*Senible,*that the duty of the town clerk in the premises is directory merely, and that no particular form for his certificate is prescribed by the statute.

A county treasurer acts ministerially and has no power to pass upon the validity of such a certificate.

Where the electors of a town have confessedly voted against local option, and the county treasurer knows that fact, the court will not.

• thereafter compel him to issue liquor tax certificates, whether or not the town clerk has properly and sufficiently performed his statutory duty of - informing the. county treasurer of the result of the vote.

Unless a town, in which there is no license, has. subsequently voted

■ for local option and that fact is shown, a county treasurer has. no

. power to issue a liquor tax certificate in such town.

Application to compel the county treasurer of Cortland county to issue fifteen liquor tax certificates to the several individuals, separately named in said petition.

Forsyth Brothers (Dougherty & Miller, of counsel), for petitioner.

P. W. Cullinah, for respondent.

Forbes, J.

This is-a special proceeding instituted by the petitioner under section 28 of .the Liquor Tax Law, passed .March 23, 1896, and the amendments thereto. This, proceeding, and ifourteen others were commenced by an application to this court to compel *577the respondent to issue fifteen liquor tax certificates to the several individuals, separately named in said petitions.

The proceedings, on the part of the petitioners, seem to be regular in form, showing upon their face that each applicant and petitioner had complied with the several provisions of the Liquor Tax Law, entitling them, in the first instance, to a liquor tax certificate. The applications, bonds and the amount of the tax required to be paid, were duly and regularly presented, in form at least, to the respondent, William H. Foster, the treasurer of Cortland county, ■and he certifies that all of the steps and proceedings, necessary to- be taken on the part of said petitioners, upon said several applications, were filed with him; and the money tax required by law was duly tendered to him and that he refused to accept the- same. He also certifies in his returns, made to this court upon said proceedings, that he informed said petitioners that he could not issue said liquor tax certificates; and then and there indorsed upon said petitions a statement of his reasons for declining to issue said liquor tax certificates.

The respondent’s returns to this court in said several proceedings also show the grounds upon which he refused to comply with said applications. (It is evident that the date in said returns, March 22, 1899, should correspond with the date of filing the town clerk’s statement, which was February 22, 1899, and is a clerical error. The original of said statement is returned to me with said proceedings.) Among other things which he gives as a reason for rejecting said applications and refusing to issue certificates is that the town clerk of the town of Cortlandville, in the county of Cortland, on or about the 22d day of February, 1899, filed with him a certificate or statement as follows:

“County of Cortland. Statement of vote of the town of Cortlandville on question of ‘ Local Option ’ at Annual Town Meeting held in the said Town, February 21st, 1899. Question No. 1.— Humber voting ‘ Yes,’ 907; ‘ Ho,’ 1495; Blank,’ 272. Question No. 2.— Humber voting ‘ Yes,’ 816; ‘ Ho,’ 1444; ‘ Blank,’ 414. Question Ho. 3.— Humber voting ‘ Yes,’ 1274; ‘ Ho,’ 1043; ‘ Blank,’ 345. Question Ho. 4.— Humber voting ‘Yes,’1155;‘Ho,’1342;‘Blank,’177.

> Dated, “ (Signed.) H. H. Pudney,

> “ Town Clerk.’’

*578Indorsed on the back, *“*Filed Feb. 22, ’99. W. H. Foster, Co. Treas.” Also stamped on the back of said statement are the printed words: “ State of New York. Received Apr. 29, 1899, Department of Excise.”

The verified returns by the respondent also, show that by a majority Vote of the legal Voters of the town of Cortlandville, upon questions 1, 2 and 4, said voters determined that no liquors should be sold, or liquor tax certificates should be issued by said respondent in said town; and that, therefore, the respondent had no right or authority to receive said several sums of liquor tax money so offered and tendered to him and issue said liquor /tax certificates prayed for ;■ none of said applications having been made for liquor tax licenses under Question Ho. 3.

The petitioners claim that the respondent is not justified in withholding said liquor tax certificates for the reason that, the town clerk of the town of Cortlandville failed and neglected to file a certified copy of the statement of the result of said town meeting on. the question of “ local option;” that,- under said Liquor Tax Law, the petitioners were entitled to said certificates as matter of law, the county treasurer not having before him any legal evidence that. the voters of said town had determined the question of “ local option ” against the issuing of liquor tax certificates. . People ex rel. Richardson v. Sackett, 17 Misc. Rep. 405; People ex rel. Thomas v. Sackett, 15 App. Div. 290.

The question to be examined here is not quite novel, but it has never been absolutely settled by any decision of the appellate courts of this state; as to the form of said certificate or what it shall fully contain. In two proceedings to which the attention of this court has been called, Mr. Justice Werner and County Judge Sutherland passed upon cases similar to the cases at bar; and, while granting the petitions in those cases, criticised the form of the town clerk’s certificate therein, but granted the relief prayed for unless a new certificate should be filed within five dayS; ordering that upon the filing of said certificate by the town clerk the petitioner’s application for a liquor tax certificate should be denied.

I prefer, however, to meet this question as it has been presented, upon the form of the certificate made by the town clerk of Cork landville, and filed with the respondent as treasurer of the county of Cortland, and the proceedings thereunder. While the Liquor Tax Law provides for the making and filing of a certificate by the town clerk, showing what has been done at the town meeting, that lawj does not prescribe the form of the certificate.

*579Subdivision 4, section 16 of said Act provides: *“A*certified copy of the statement of the- result of the vote, upon each of such questions submitted, shall immediately after such submission thereof be filed by the town clerk or other officer with whom the returns of town meetings are required to be filed by the election law, with the county treasurer' of the county,” etc. It will be seen therefore that the certificate must be a copy of the statement of the result of the vote upon each of- the four questions submitted.

It is a well-known rule of interpretation that where the form of the certificate is not prescribed in the act, it must be of such a . nature as that it will substantially apprise the person, to whom it is to be" delivered, of the facts sought to be brought to his notice and Upon which he is required to act. People ex rel. Richardson v. Sackett, 17 Misc. Rep. 405; Sprague v. City of Rochester, 159 N. Y. 20, at page 26.

Laws 1896, chapter 112, seetionl6, subdivision 4, also declares: *“*It is further provided that in any town in which at the time this act shall become a law there is no license* it shall not be lawful for ,the county treasurer, * * :* to issue any liquor tax certificate provided for by this act, until such town shall have voted upon the questions provided to be submitted by this section, and then to issue such liquor tax certificate only, as may be in ac- - cordance with the vote of a majority of the electors on the questions submitted, but not before the first day of May next following said vote.”

The county treasurer is without authority to issue certificates in such towns even though the applications made therefor seem to be correct in form. People ex rel. Thomas v. Sackett, 15 App. Div. 290; rev’g S. C., 17 Misc. Rep. 406; People ex rel. Richardson v. Sacket, 17 Misc. Rep. 405.; People ex rel. Fisher v. Hasbrouck, 21 Misc. Rep. 188.

In the cases at bar there was an effort made, on the-part "of the town clerk, .to comply with said act and to inform said respondent, whose business it was to issue the liquor tax certificates, that a majority of the votes of the town of Cortlandville had been cast for “ local option ” at the last annual town meeting, against the issuing of said .certificates; and unless this statement is sufficient in form to be a' substantial compliance with the provisions of said act, there is no evidence before this court to show that the county treasurer had any right to issue said liquor tax certificates, for the reason that there, was no evidence before the respondent showing *580whether the voters had declared for or against the granting of liquor tax certificates; there being no evidence before me, as shown by the moving and' answering papers, that this section had ever been previously complied with by a submission to the voters.' In re Wilber v. Welling, Bennett & Jackson, Stover, J., Washington county, not reported; see authorities under section 16, recent Liquor Tax Law, Anno.

In the cases at bar it is clear that the respondent .understood the • statement-certificate made and filed,- and was prepared to act upon that certificate. He was apprised,— First, that this is a statement of the vote' of the town of Oortlandville on the question of local option at the annual town meeting held in said;town February 21, 1899. Second, that on each of the questions submitted, the clerk had copied and summarized the votes in favor of granting, liquor tax certificates and-those against,—■ using the same method and making the summary to each of the four questions submitted,— signing the same in his official capacity, as town clerk.

Hp.on the face of the statement thus certified the respondent was informed that he had no right or power to issue the certificates prayed for by the petitioners. With this knowledge he determined that a liquor tax certificate could not be issued. Has the court any right to compel him to determine otherwise? People ex rel. Harris v. Commissioners, 149 N. Y. 26;, People ex rel. Fisher v. Hasbrouck, 21 Misc. Rep. 188.

Having information of the fact that no license had been voted, was riot the respondent bound by the declaration and filing of the public official record, when filed by the town clerk in the proper" office ? Liquor Tax Law, § 15; Election Law, § 113; Town Law, 1890, chap. 5'69, § 83.- '

Having knowledge of the decision made by -the vote, was.it necessary to file the certificate in the precise form suggested by the act ? People ex rel. Platt v. Rice, 144 N. Y. 249; Election Law, § 111-; Laws 1899, chap. 168, § 37.

The respondent cannot be compelled to do an act which he is not authorized to do. People ex rel. Thomas v. Sackett, 15 App: Div. 294.

The statement as signed by the- town clerk was 'duly filed, with the respondent the day following the town riieeting and before the applications of the petitioners' were presented to him for action. -

In looking at the statute we must .see what was probably in the minds of the legislators at the time section 16 and its several subdivisions were passed: Can there be any doubt as to what was in*581tended by the legislators in directing the making and filing of said • certificate? Can there be any doubt, in a legal sense, that the sole object was that such a statement should be made, by the town clerk, as would apprise the county treasurer that the legal voters had determined that no certificates should be issued ? This being the object of the section, and the statement being sufficient-to inform the treasurer of that fact,, would he then be justified, under the law of “ local option,” in overriding the will of the people and issuing a liquor tax certificate at all.hazards? Sprague v. City of Rochester, 159 N. Y. 20.

I am forced to the conclusion that the duty of the town clerk was directory merely and that the certificate or statement, over his signature, is sufficiently definite, in form, to. convey the knowledge sought to be acquired and should be declared a substantial compliance with that provision of the statute relating to the filing of. the certificate. The respondent had. no right to disregard such statement of the result of the town meeting, conceding it to have been only a partial compliance with the act and irregular in form. *Quaere,*Can this irregularity be attacked in this proceeding? People ex rel. Fisher v. Hasbrouck, 21 Misc. Rep. 188; People ex rel. Van Sickle v. Austin, 20 App. Div. 1.

The respondent could not'act judicially, nor had he the power to determine the form of such statement or information. His duties are ministerial and he must stop there. People ex rel. Rochester Whist Club v. Hamilton, 17 Misc. Rep. 11; People ex rel. Hartigan v. Macy, Longley, J., Columbia county, not reported; People ex rel. Action v. Corkhill, Richardson, J., Seneca county, not reported ; People ex rel. Anderson v. Hoag, Keogh, J., Westchester county; see Annotated Liquor Tax Law, under § 19.

It will be seen that the legislators must have intended that this provision of the law should be met by a substantial statement of the facts sought to be known. They have fixed the form of the liquor tax certificate, in the act itself, and if the legislators had designed that any particular form should be used in notifying the county ■ treasurer that the people had determined that no liquor tax certificate should be issued, they would undoubtedly have provided the form and furnished blanks of. a particular character, as provided for by section 15 of said act.

I cannot agree with Mr. Justice Werner (27 Misc. Rep. 360) and Judge Sutherland (27 Misc. Rep. 308) that the town clerk’s statement and certificate must conform to that prescribed by sec*582tipil 111 of the Election Law. That certificate is designed for an entirely different purpose,, it is to be used in the canvass of the • vote to be declared by the board of canvassers. People ex rel. Derby v. Rice, 129 N. Y. 461; Matter of Stewart, 155 id. 545.

The form of that statement and certificate is prescribed by section 84 of the Election Law of 1896.

I think it must, therefore, be held- that the' statement, over the signature of the town clerk is a certified copy of the statement of the. result of the vote upon each of the questions submitted,, and is a fair compliance with the law under subdivision 4, section 16 of said act.

“ Certify ” is defined by- the Standard Dictionary as follows: “To give certain knowledge or information of; make evident; vouch for the truth of; attest. 2. To make statement to as matter of fact. 3. To testify in'writing; give a certificate of; make a declaration about in writing, under hand, or hand and seal. 4. To. make attestation either in writing or orally as to the truth or excellence of some thing, as “ He certified to the truth of the statement.”

“ Certificate ” is defined as: “A documentary declaration * * *' regarding facts • * * * from the public authority as an attestation of facts contained in a public record. *2.*In law: A-writing so signed and authenticated as to be legal- ■ evidence.”' Holmes says: “ Certificates are, for the- most part, like ostrich eggs; the. giver never knows what is hatched out of them.” Bouvier defines “ Certificate ” as a “ Writing by which testimony, is given that a fact has or has not taken place.”

The first part of section 16 and subdivision 4, provide .for the manner in which- the votes shall be cast and counted, and the time at which the Submission to the people shall be made. . The presumption is that the election officers performed their duty in receiving, counting the votes cast and declaring the result of the election-, A provision of the Election Law makes that declaration notice.to each person whose name is on the poll-list. See § 112 Election Law (Election Code 1891, § 746); Town Law, Laws 1899, chap. 168, § 37. .

The presumption is that all persons who were legal voters were duly registered within the.time prescribed by law, since it is the duty of the election officers to register all persons qualified to vote, in the election district on the day of registration. Election Law, § 33, subd. 4.

*583Assuming that the clerk had been in sympathy with those who sought to obtain liquor tax licenses, and he had failed to file any certified statement, could he have nullified. the vote of the town against license by withholding the filing of the statement provided by said act ? People ex rel. Hirsh v. Wood, 148 N. Y. 142.

In the case of People ex rel. Leonard v. Hamilton, 27 Misc. Rep. 308, Sutherland, J., holds that the will of the duly qualified electors of a town, as expressed in a vote on the question of *“*local option ” under the Liquor Tax Law,, should not be nullified by a mistake or omission of the town clerk, or other ministerial officer, in a matter of detail, which does not mislead the public or affect the result. People ex rel. Hirsh v. Wood, 148 N. Y. 142.

It is said in this last-cited case: “ It is impossible t,o suppose that the legislature used the word *‘*provided ’ as synonymous with *‘*prepared ’ so as to visit upon voters a forfeiture of the franchise if an official should make any departure in preparing the ballot from the strict authority conferred upon him.”

The holding of the town meeting is provided for by law and was a matter of public notoriety and was an act of which the county treasurer had the right to take notice, independently of the certificate of the town clerk; and in bis return to this court he, in effect, says that with the knowledge he had before him he had no right to issue the liquor tax certificates prayed for.

The respondent had no right'to issue the liquor tax certificates asked for, with the statement made to him by the town clerk unimpeached. And with the knowledge of the provisions of the law, and the majority vote of the inhabitants against the granting of such certificates, the petitioners had no legal right to make these applications. ■ Liquor Tax Law, § 16, subd. 4.

The petitioners are prohibited from applying, when they cam not, lawfully, obtain the certificates and they might be liable for a violation of this act if they did obtain an unlawful liquor tax certificate. Liquor Tax Law, § 34.

By section 38 of the Liquor Tax Law, the respondent was. charged with the responsibility of obeying the voice of the legal voters, and had he, in defiance of the statement made, issued the liquor tax certificates applied for, he could have been removed from office by the governor, and the relator would also have been subject to a fine and guilty of á misdemeanor. The petitioners themselves, under section 34 of the act, strictly -construed, knowing the fact that local option had been adopted, had no legal right to make the *584applications;.and the court ought not to aid them in receiving that which is unlawful and which the county treasurer had no right to grant.

The respondent is by law made the custodian of the liquor tax certificates,' and having no right to pass upon the form- of the town clerk’s certificate and statement, he could not be required, with that statement- before him and the knowledge that the legal voters had -rejected the granting of liquor tax certificates, to -issue them to the petitioners. The court, upon a careful examination of all of the proceedings before it, finds and holds that the reasons given by the respondent for not issuing liquor tax certificates are reasonable, valid and proper; nor will this court, in the first instance, voluntarily attempt to override the- privilege of the voters to pass upon this question in their own manner. -■

• I, therefore, hold, determine and decide" that the county treasurer, the respondent, was justified in refusing to grant said liquor tax certificates to the petitioners, under the concluding paragraph of section 19 of the Liquor Tax Law, under which he must issue them if at all'; and that he clearly stands within the ■ exception referred' to, that “ unless it shall appear by a certified copy of the statement of the result of an election held on the question of local option, pursuant to section sixteen of this act, in and for the town- where the applicant proposes to traffic in liquors under the certificate applied for, that such liquor tax certificate cannot be lawfully granted, in which case the application shall be.refused.”

Hnder this.provision, with the latter portion of subdivision 4 of section 16 of the Liquor Tax Law, it seems to me it should be held to be a good, valid and sufficient reason why the relator should refuse' to issue said certificates. And this court hereby determines that the respondent has given good, valid and sufficient reásons for-refusing to grant the liquor tax certificates applied for by the said several petitioners, since'if there is any doubt about said respondent’s right to grant said certificates, the court should not exercise the discretionary power reposed in it to compel him to do so.

The proceedings must, therefore, be dismissed and the-prayer of the petitioners' must be denied, with-only one bill" of costs to the relator.

Ordered accordingly.