such ballots for any town meeting for the election of town officers held upon a different day from a general election. There does not seem to be any provision in that law, or in any other, requiring any officer to provide official ballots for any town meeting, except one for the election of public officers.

Next, it provides the time when he shall have such ballots prepared, viz.: "At the time fixed by law for preparing the ballots for a town election occurring next after the passage of this act.” Section 12 of the Town Law provides for the election of town officers at the annual town meeting.

Section 25 of that law provides for "special town meetings," at which certain propositions, therein specified, may be voted upon. Such meetings are held whenever called for by certain officers, or taxpayers, therein specified, and no election of officers can be had at any such meeting. It is also further provided by section 34 of the Town Law that no proposition then presented shall be voted upon by ballot, unless a particular request and notice, then provided for, is made and given, and in that case the town clerk is to provide ballots therefor, either written or printed, and evidently not as official ballots. No special form is required for them, and evidently nothing prevents the elector from using his own instead of voting them.

Now, what does section 16 mean by the phrase "at the time fixed by law for preparing the ballots for a town election," etc.? Evidently not upon any day that a special town meeting shall be called and held, for there is no time fixed by law for providing official ballots for such a meeting, nor any provision of law for using them at such a meeting. Such a meeting is not in any sense a "town election." No officer can be elected at such a meeting, and, in many instances, no ballots need be used thereat. The phrase "town election," therefore, can only refer to the annual town meeting at which officers are elected. For such a meeting the town clerk is required by section 86 of the Election Law to prepare official ballots, and to have them ready and open to public inspection one day before the election is held. And that election day is fixed by law, and must occur on the same day in each year, without any notice being given thereof. (Town Law, §§10, 26.)

It seems, therefore, that, under section 16, the meeting therein referred to is the one at which a town election for officers may be held; one at which official ballots are required to be used, and for which it is made the duty of the town clerk to prepare such

ballots at a fixed and stated time. The annual town meeting is the only one to which these provisions are applicable. And when that section requires the town clerk to have prepared the ballots therein specified, at the time fixed by law for preparing the ballots for a town election occurring next after the passage of that act, it requires him to prepare them at the same time that he does the ballots for the next annual town meeting. Thus the intent of the statute appears to submit the question at the next annual town meeting, and is in harmony with the subsequent provision, that the same questions shall be submitted at the annual town election in every second year thereafter, if a sufficient number of the electors petition therefor.

Moreover, the statute evidently intends to preserve intact the condition in which it finds each town at the time the law takes effect. Section 16, above cited, provides that in towns where no license exists at the time the act becomes a law, no liquor tax certificate shall be issued until the electors of the town shall have changed that condition by taking a vote as provided in that section. That is, the existing condition shall not be changed by the mere change from the old to the new excise law. So, also, the method for effecting the change, as provided by section 16, is so arranged that the existing condition may not be changed any sooner than it could have been had the new law never been passed. That is, it can be changed at the next annual town meeting, but no sooner. The new law undoubtedly intends to provide a more definite and precise method for expressing the will of the electors upon that subject, but it is careful not to interfere at all with the existing conditions in the several towns of the State at the time it takes effect. And I do not see any reason why a different intent should be expected or sought for. It was evidently just not to force upon a town that had secured, at the last annual meeting, exemption from the sale of liquor therein for a year, a law that would operate to change that condition, or that would force them to another vote to determine what they had so recently settled.

The fact that a better method of expressing the popular will on that question was to be thereafter adopted does not indicate an intent to force, by its immediate use, an immediate change in a condition which had, in most instances, been recently and fairly adopted.

I conclude that it was the intent of the Legislature that the vote upon the propositions allowed by section 16, above cited,

should be had at an annual town meeting, and that, therefore, the action of the meeting held on April 25, 1896, was inoperative and the treasurer was correct in not recognizing the same.

It is claimed by the respondent that no appeal lies from the order made at Special Term in this matter. The writ of certiorari is a special proceeding (Code, tit. 2, chap. 16), and the order from which this appeal is taken affects a substantial right therein. It is, therefore, appealable under section 1356 of the Code. The county treasurer, by that order, is directed to do an act which, as a public officer, he is not authorized to do, and, although it does not affect him pecuniarily, he has such an interest in the subject as to make him a party aggrieved within the meaning of section 1294 of the Code. (People ex rel. Burnham v. Jones, 110 N. Y. 509; People ex rel. French v. Town, 1 App. Div. 127.)

It does not appear from the record whether or not the tax has been paid and a certificate issued, but we understand it to be conceded upon the argument that such is the case. Under such circumstances, justice requires that restitution of the amount should be made. The relator paid the tax relying upon the order which we now reverse, and we are of the opinion that the case, therefore, comes within the provisions of section 1323 of the Code Under that section this court has power to order restitution. We, therefore, conclude that an order should be entered reversing the order appealed from, with costs in the court below, and revoking and canceling the tax certificate issued, and awarding restitution to the relator of a pro rata amount of the tax paid by him therefor, with ten dollars costs and disbursements to the appellant of this appeal.

All concurred.

Order reversed, with costs in court below, and tax certificate canceled, and restitution of a ratable amount of the tax paid ordered, with ten dollars costs and disbursements of this appeal.

Court of General Sessions, New York County, March, 1897. Reported 19 Misc. 665.

THE PEOPLE v. CONSTANT BOUDOUIN.

Liquor Tax Law-Violations of-Jurisdiction.

The grand jury and courts of New York county have jurisdiction of violations of the Liquor Tax Law committed in the territory annexed tc New York city by chapter 934, Laws of 1895.

DEMURRER to indictment.

John D. Lindsay, assistant district attorney, for the People.

David H. Hunt, for defendant.

MCMAHON, J. The defendant is charged with violation of the Liquor Tax Law, chapter 112, Laws of 1896.

It is alleged in the indictment that the offense was committed in that portion of the city of New York which was annexed to the county of New York by chapter 934 of the Laws of 1895.

A demurrer has been submitted in his behalf on the ground that the grand jury of New York county had no legal authority to inquire into the crime charged, by reason of its not being within the legal jurisdiction of the county.

The territory in which the offense is alleged to have been com mitted was "set off from the county of Westchester and annexed to, merged in and made part of the city and county of New York,” by the provisions of chapter 934 of the Laws of 1895.

To sustain the demurrer the defendant relies upon the following provision of the Liquor Tax Law, which took effect March 23, 1896, and especially relates to the territory in which the offense is laid:

"If, since the latest State enumeration was taken, the boun daries of a city have been changed by the addition of territory not in the same judicial district, such annexed territory shall not be deemed to be a part of such city for the purposes of this act but such annexed territory shall be deemed to be a town, and all the provisions of this act shall be applicable to such annexed territory the same as if it had not been so annexed, except that all the money which would otherwise be payable to the town

under this act shall be paid to the city to which such territory was annexed." Liquor Tax Law, subd. 4, § 11.

There has been no State enumeration since the passage of this

act.

The act of 1895, cited by the learned district attorney, made the annexed district part of the city and county of New York, and it so remains. The act of 1896 declares that "for the purposes of this act" this territory shall not be deemed a part of the city of New York. What are the purposes of this act? Clearly, to impose a tax upon the liquor traffic within the State and to regulate the collection of the same. It surely was no part of the purpose of this act to change the mode of procedure for the prosecution and punishment of crime. On the contrary, as far as it touches upon that subject, it re-enacts (section 35) the sections of the Code of Criminal Procedure, and prescribes that "All proceedings instituted for the punishment of any violation of the provisions of this act, the penalties for which are prescribed in section thirty-four, shall be prosecuted by indictment by the grand jury of the county in which the crime was committed, and by trial in a court of record having jurisdiction for the trial of crimes of the grade of a felony." Other sections of the same act impose obligations or confer privileges in towns and villages not imposed or permitted in cities. For instance, a light tax-rate and local option are allowed to towns but denied to cities. The distance from schools, churches and public institutions, within which the traffic is permitted in cities and towns, also varies in the act, and it is, no doubt, for these reasons that, with the exception stated in the provision quoted above relating to the payment of money collected, all the provisions of the act were made applicable to such annexed territory the same as if it had not been annexed to the city of New York. The territory in question is sparsely populated, and to subject it to the rigid regulations and high tax prescribed for the first-class city of which it becomes a part would have been oppressive.

The legislature, within constitutional limitations, has the undoubted right, and has often exercised it, of segregating part of a county and attaching it to another, or of attaching part of a county to a city without changing the county lines, and the act of 1895, by its terms, sets off from the county of Westchester and merges in the city and county of New York, certain territory, while a subsequent enactment declares that for certain purposes