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Tamney v. Atkins

Supreme Court of New York, Appellate Division

May 8, 1912

In the Matter of the Application of WARREN CHIPP TAMNEY, Respondent, for a Writ of Mandamus
v.
WILLIAM H. ATKINS and Others, Justices of the Peace of the Town of New Paltz, Ulster County, New York, and Others, Defendants, Impleaded with EUGENE VAN WAGENEN, Town Clerk of Said Town, and Others, Appellants.

APPEAL by the defendant, Eugene Van Wagenen, town clerk, etc., and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 23d day of December, 1911, directing the counting of certain ballots upon the question of local option rejected by the board of inspectors as void.

COUNSEL

Page 310

John J. Linson, for the appellants.

Augustus H. Van Buren, for the respondent.

HOUGHTON, J.:

At the general town meeting of 1911 the electors of the town of New Paltz, Ulster county, upon a proper petition, voted upon the four propositions with respect to the sale of liquor in that town, as permitted by section 13 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 485).

The town contains two election districts and the inspectors of election in each of the districts determined that certain of the ballots were void, and refused to count them upon any of the propositions submitted.

The vote upon the first two propositions, relating to saloon licenses and to the sale of liquor not to be drunk upon the premises, was in the negative by a substantial majority, and the third proposition, as to sale by pharmacists upon physician's prescription, was in the affirmative by a majority of one hundred and two. The vote upon the fourth proposition, as to whether there should be a sale of liquor by hotelkeepers, was declared to be a tie, which, under the provisions of the section above referred to, prevented the issuing of a liquor tax certificate for the sale of liquors in such town.

No question is raised as to the vote upon the first three propositions. As to the fourth proposition the respondent, who owns a hotel in the town and who will be seriously damaged if the sale of liquor by him is prohibited, within twenty days after such election, by an order to show cause, instituted proceedings under section 381 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22) for the issuance of a writ of mandamus requiring the production of the ballots rejected by the inspectors as void, for the purpose of determining whether they were properly rejected or not, and to compel the counting of the same if it should be decided they were valid.

Upon the return of the order to show cause the appellants raised two preliminary objections, one, that the court had no power to entertain the proceeding because the hearing for the mandamus was not had within twenty days succeeding the

Page 311

election, and the other that section 381 of the Election Law conferred no power upon the court to make a judicial investigation to determine the validity of rejected ballots cast upon a question or proposition submitted to the voters, but that such jurisdiction related only to ballots cast for candidates for office.

These preliminary objections were overruled, and the ballots rejected as void being produced the court determined that four of them were valid ballots and lawful votes on the fourth question submitted, and should be counted, three in the affirmative and one in the negative, and directed the boards of inspectors to reconvene for that purpose.

The result of such recount would be that the proposition to allow the sale of liquor by hotelkeepers was carried in the affirmative by a majority of two.

We think the learned Special Term was correct in overruling the preliminary objections raised. So far as material to the question presented, section 381 of the Election Law prescribes that if any certified original statement of the result of the canvass in an election district shall show that any of the ballots therein were rejected by the inspectors as void a mandamus may, upon the application of any candidate voted for at such election in such district, within twenty days thereafter, issue ...


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