#### Matter of the Application of Justice C. Arnold, for a Special Town Meeting in the Town of Prattsburg, Under Section 16 of the Liquor Tax Law.

(Supreme Court, Steuben Special Term,

August, 1900.)

Liquor Tax Law — Form of ballot for local option.

It is not a valid objection to the legality of the submission of the questions of local option, when clearly distinguished upon a ballot, that the ballot contains constitutional amendments submitted to the people, nor that the local option questions were not numbered 1, 2, 3 and 4, respectively, or that question 4 was" not in the words prescribed by the Liquor Tax Law as amended (L. 1897, ch. 312, § 9).

Motion for an order to submit the question of local option, under the Liquor Tax Law, to a special town meeting of the town of Prattsburg, N. Y.

James Flaherty, for petitioner.

P. W. Cullinan, for Steuben County Treasurer.

Dunwell, J.

Motion for an order to submit, the question of local option under the Liquor Tax Law to a special town meeting of the town of Prattsburg, N. Y., upon the ground that such question was not properly submitted at the biennial town meeting held in connection with the general election November Y, 1899.

It appears that certain proposed amendments to the Constitution, four in number, were submitted at the same time upon the same ballot with the questions relating to local option under the Liquor Tax Law.

The liquor tax questions; four in number, immediately followed the proposed constitutional amendment questions upon the same ballot.

The proposed amendment questions were numbered 1, 2, 3 and 4. The liquor tax questions followed with consecutive numbers, 5, 6, 7 and 8. It is alleged by the petitioner that the placing of the liquor tax questions upon the same ballot with the constitutional questions was improper.

*440This objection is untenable, as the Election Law expressly provides that all such questions shall be submitted upon the same ballot. See Election Law of 1896, chap. 909, § 82.

It is further objected that the numbering of the questions 5, 6, 7 and 8, instead of 1, 2, 3 and 4, as they appear in the Liquor Tax Law, is improper.

It would, perhaps, have been more orderly to submit the liquor tax questions under the same numbers under which they appear in the Liquor Tax Law. But, inasmuch as the ballot submitted upon the motion shows that the headings to the several questions were prefixed to each question upon the ballots used by the voters, explaining each question and almost precluding any occasion for referring to them by number, I do not deem the manner of numbering the questions upon the ballot material, and do not consider that the voters could have been confused by reason thereof as charged in the petition.

The form of question 4 of the Liquor Tax Law (appearing as question 8 upon the ballot in question) did not contain the words added to the question by the amendment of 1897, chapter 312, section 9.

The petition alleges that in consequence of the failure to comply with the amendment .the propositions were not properly submitted and that the petitioner is entitled to have the questions submitted to a special town meeting as the remedy provided by section 16 of the Liquor Tax Law.

The question upon the ballot as submitted reads:

> “ Selling Liquor by Hotel Keepers.

“ Yes —

“No —

“ Shall any corporation, association, copartnership or person, be authorized to traffic in liquors under subdivision one of section eleven of the Liquor Tax Law, as the keeper of a hotel in the town of Prattsburg?”

This form of question was in accordance with the statute before' the amendment.

The question in the statute as amended reads: “Selling liquor by hotel keepers only: Shall any corporation, association, copartnership or person be authorized to traffic in liquors under subdivision one of section eleven of the Liquor Tax Law, but only in *441connection with the business of keeping a hotel in (here insert the name of the town), if the majority of the votes cast on the first-question submitted are in the negative ? ”

As was said in People ex rel. Hirsh v. Wood, 148 N. Y. 147, where the clerk who prepared the official ballot improperly inserted the names of judicial candidates of one party in the local column of another, thus giving to the candidates so favored an important benefit,— “The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to' secure the rights of duly qualified electors, and not to defeat them.”

In that case the result of the election was sustained, notwithstanding the clerk’s error.

In People ex rel. Leonard v. Hamilton, 42 App. Div. 212, it was held that irregularities in the certificate of an election officer cannot be worked.to defeat the will of the electors and that the intention of the electors is paramount thereto. This principle is conceded by all the cases and writers upon the subject.

It follows in the present case, if the electors have intelligently voted upon the question whether hotels shall be permitted to sell liquors upon the premises under the Liquor Tax Law in the town of Prattsburg their decision should not be disturbed.

The questions, as they appeared upon the ballot, were preceded by the words “Yes” and “No”, thus indicating to the voter that he was at liberty to vote in the affirmative or negative upon the question under consideration (question 8 upon the ballot), however he may have voted upon any preceding question. The language of the body of the question, relating to hotels, upon the ballot used, is clear, and it is difficult to perceive how a voter of common understanding could be misled, or find difficulty in expressing his intention. With either ballot he would achieve the same result by the same vote.

The amendment is explanatory, no doubt, of the seeming inconsistency of first voting “No” upon the general proposition, whether liquors shall be sold to be drunk upon the premises without qualification, and then voting “Yes” in respect to hotels, which are also places where liquors are sold to be drunk upon the premises. The amended form of the question may remove the supposed inconsistency, but it is doubtful if it makes the voter’s way more clear in the act of casting his ballot.

*442I doubt if, in the hands of the voter, the use of the amended ballot malíes any practical difference in the result. Keeping in mind that the intention of the voter, as expressed at the ballot-box, is not to be disturbed, except for substantial reasons, and regarding the objections raised as technical only, I am of the opinion that no sufficient reason has been shown why the election already held should be set aside or why a special town meeting should be called to again pass upon these questions.

My attention has been called to the case of People ex rel. Caffrey v. Mosso, 30 Misc. Rep. 164, which is contrary to the views here expressed, but with great respect for the authority of that case, still, for the reasons hereinbefore stated, I am constrained to adhere to the foregoing opinion.

It follows that the petition must be dismissed and the motion denied, but because of the conflict of judicial opinion as to effect of the amendment under consideration the denial of the motion is without costs. ,

Ordered accordingly.