In re Farley

158 A.D. 840, 143 N.Y.S. 1070, 1913 N.Y. App. Div. LEXIS 7468

Opinion

Lyon, J.:

The four propositions specified in the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 13, as amd. by Laws of 1910, chap. 485) were submitted to the electors of the town of Sherburne, Chenango county, at the biennial town meeting held in February, 1913. The result was in the affirmative as to the fourth proposition relating to sales by hotelkeepers only. Upon an application to the county judge, alleging improper submission, an order was granted by him directing a resubmission, which was had May 10, 1913, and resulted in a tie vote, and hence a negative decision upon the fourth proposition. Application was then made to a justice of this court by petition and affidavits, alleging certain irregularities in the resubmission at the special town meeting, and so alleging that by reason thereof the four propositions had not been legally resubmitted and asking that it be so determined by the court and that an order be granted directing that the propositions be again submitted at a special town meeting to be called for that purpose. This application was opposed by certain taxpayers of the town in the capacity of intervenors, who filed opposing affidavits. The justice denied the application solely upon the ground that the Liquor Tax Law did not authorize the granting of the relief asked, and stating that the decision was not made upon the merits. It is from the order entered upon such denial that this appeal has been taken. We think the decision of the learned justice was correct. The Liquor Tax Law as originally passed (Gen. Laws, chap. 29 [Laws of 1896, chap. 112], § 16) contained no provision for a resubmission of the propositions, and no matter what irregularities might have existed in the election,- the result of the submission at the regular town meeting was final. The following year the Legislature saw fit by enacting chapter 312 of the Laws of 1897 to provide in said section 16. as amended for a resubmission of the propositions at a special town meeting in case the propositions had not been properly submitted at the regular town meeting.

This provision has been the subject of amendment until the statute now provides: “ If for any reason * * * the four propositions * * * shall not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called. But a special town meeting shall only be called upon filing with the town clerk * * * an order of the * * * court or a justice or judge thereof * * * sufficient reason being shown therefor.”

The statute does not authorize a second resubmission in case the propositions shall not have been properly submitted at the biennial town meeting, nor authorize a resubmission in case they shall not have been properly submitted at the special town meeting, but authorizes only the single resubmission in case the propositions shall not have been properly submitted ‘ ‘ at such biennial town meeting. ” A court or a justice thereof cannot exercise any power in the premises not expressly conferred upon him by the statute. In the absence of a provision granting to the court or judge authority to order a second special election in case, in his judgment, the propositions were not properly submitted at the special election, it must be presumed to have been the intention of the Legislature that but a single resubmission should be had, and that the result at the special election should be final until the next biennial election. As was said in the case of People ex rel. Brink v. Way (179 N. Y. 174): “ The rules of construction of statutes require this court to hold that when the Legislature attempts to confer upon the court power to order examination of the ballots, the grant of power does not extend one iota beyond its terms.” As was also said in Matter of Tamney v. Atkins (209 N. Y. 202), the opinion referring to the exercise by the court of power not expressly given it by statute: “It is well settled that this proceeding may not be entertained by virtue of any inherent powers of the court, but must find authorization and support in the express provisions of the statute. * * In such a case as this the right to the writ depends on legislative enactment, and if the Legislature as a result of fixed policy or inadvertent omission fails to give such privilege, we have no power to supply the omission.”

The order appealed from must be affirmed, with costs.

All concurred, except Howard, J., dissenting.

Order affirmed, with ten dollars costs and disbursements.