In re the Re-submission to the Electors of the Town of Onondaga

163 A.D. 191, 148 N.Y.S. 36, 1914 N.Y. App. Div. LEXIS 6856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1914
• Status: Published

Opinion

Foote, J.:

At the general election held on November 4, 1913, the four excise questions specified in section 13 of the Liquor Tax Law were submitted to the electors of the town of Onondaga, and the vote upon each was adverse to the sale of intoxicating liquors in that town. The petitioners herein moved at Special Term on March 7, 1914, for an order to resubmit said four excise questions to the voters of said town on the ground that the questions had not been properly submitted at the general election because the preliminary notice required by said section 13 of the Liquor Tax Law had not been posted and published by the town clerk as required by that section. It appeared that these notices had in fact been posted and published by the board of elections of Onondaga county or under its direction.

The principal question presented at the Special Term and here is whether the duty to post and publish these notices rests upon the town clerk or upon the board of elections.

There is no doubt that prior to 1908 the town clerk of the respective towns in Onondaga county was charged with the duty of giving these notices. The statute (Liquor Tax Law, § 13) at that time in express terms required the town clerk to give these notices, as follows: “The town clerk shall also, at least ten days before the holding of such town meeting or general election, cause to be printed and posted in at least four public places in such town, a notice of the fact that all of the local option questions provided for herein will be voted on at such town meeting or general election; and the said notice shall also be published, at least five days before the vote is to be taken, once, in one newspaper published in the county in which such town is situate, which shall be a newspaper published in the town, if there be one.” (Liquor Tax Law [Glen. Laws, chap. 29; Laws of 1896, chap. 112], § 16, as amd. by Laws of 1901, chap. 345, and Laws of 1908, chap. 144; now Liquor Tax Law [Consol. Laws, chap. 34], § 13.)

It is contended, and we think rightly, that as to the towns in Onondaga county the duty of giving these notices has been taken away from the town clerks by subsequent legislation and is now vested in the board of elections.

By chapter 492 of the Laws of 1908, entitled “An act to provide for a commissioner of elections in and for the county of Onondaga,” it was provided that the board of supervisors of that county should appoint a commissioner of elections. The powers and duties of this commissioner were defined in section 4 as follows:

“8 4. Powers and duties of commissioner.—The commissioner shall have and exercise all of the jurisdiction, power and authority conferred and be subject to all of 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 held within such county and its political subdivisions, other than in villages and school districts, except the appointment, powers and duties of inspectors of election, poll clerks and ballot clerks. The commissioner shall be the custodian of primary records for said county and the secretary of the county board of canvassers.”

The other sections of the act show a legislative intent to vest in this commissioner generally all powers and functions relating to elections in that county formerly vested in other officers and by section 13 all acts and parts of acts, so far as inconsistent, are repealed.

By chapter 22 of the Laws of 1909 (Consol. Laws, chap. 17) this act creating the commissioner of elections of Onondaga county was brought into the Election Law, and the section defining the powers and duties of the commissioner for Onondaga county then became section 253 of the Election Law without change.

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Thus the powers and duties previously conferred by the Liquor Tax Law upon the town clerk in respect of giving notices preliminary to the submission of the excise questions in the respective towns of the county of Onondaga were clearly transferred to and became vested in the commissioner of elections.

By chapters 649 and 740 of the Laws of 1911 the Election Law was amended so as to create for each county in the State a board of elections. Prior to that time the office of commissioner of elections existed in only a few of the larger counties, so that the provisions of the Liquor Tax Law requiring the town clerk to give notices were operative in all the counties of the State, at least where there was no commissioner of elections. By these acts of 1911 section 190 of the Election Law was amended to provide that the board of elections in each county is “charged with the duty of executing the laws relating to all elections held within their respective cities or counties, except as otherwise provided by law.” This section was thereafter amended, but the provision quoted was re-enacted. (See Laws of 1912, chap. 406, and Laws of 1913, chaps. 800, 820.) By section 202 of the Election Law (added by Laws of 1911, chap. 649) said hoard of elections was made custodian of the primary records for each political subdivision for which the board was appointed. By section 205 of the Election Law (added by Laws of 1911, chap. 649) it was provided that all notices of elections to which the chapter applies and which are required by law to he published, advertised or posted in any county or political subdivision thereof should be so published, advertised or posted by the board of elections, and by section 206 of the Election Law (added by Laws of 1911, chap. 649) it was, among other things, provided that “ the said board of elections in any such county shall he charged with the duty of performing each, every and all of the duties which now devolve upon the county clerk or commissioner 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.”

Thus, all the duties which before rested upon the commissioner of elections of Onondaga county were thereby transferred to the new board of elections created in 1911, and, in my opinion, the notices required by the Liquor Tax Law to he published and posted as a preliminary to submitting to the voters of the towns in Onondaga county the four excise questions, were properly and lawfully so published and posted by the commissioners of elections constituting the board of elections of Onondaga county, and that no such power or duty remained with the town clerk.

We are also of opinion that there was a substantial compliance with the requirements of the statute in the form of the notices as posted and.published.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with costs.

Section 353 of the Election Law was amended by chapter 172 of the Laws of 1910, and repealed by chapter 649 of the Laws of 1911.— [Rep.