
    (90 Hun, 23.)
    ALLEGANY COUNTY v. TOWN OF WELLSVILLE.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    'Counties—Besot,uttoks oe Supervisors—Local or Special Laws.
    A resolution by a board of county supervisors is not a “special or local law,” within Laws 1892, c. 401, § 15, prescribing the application of all ex-else money collected in a town except as “otherwise provided by a special or local law.”
    Controversy between the county of Allegany as plaintiff and the town of Wellsville as defendant, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279. Judgment for plaintiff.
    The facts agreed upon are as follows:
    During the years 1892, 1893, and 1894, and for many years prior thereto, the support of the poor of Allegany county was a county charge. By resolution of the board of supervisors of the county, passed November 13, 1830, each town of the county was made liable in the first instance for the support of its resident poor in the sum of $10. After the expenditure of said $10, the poor became a county charge. Such regulation has ever since been in force. During the years 1892, 1893, and 1894 defendant’s supervisor received from the defendant, from licenses granted by the excise commissioners of the town, various sums of money aggregating $2,127.50, which the defendant refused to pay over to the plaintiff. At a regular meeting of the board of supervisors of said county held in December, 1892, the treasurer of the county reported to the board that the towns of Grove, Hume, Andover, and Willing, in said county, had, after the passage of chapter 401 of the Laws of 1892, known as the “Excise Act,” paid to him, as such treasurer, excise moneys amounting to the sum of $575.28, which was reported by him to said board as belonging to said towns, and the board, by resolution, directed that orders be drawn payable from the contingent fund of the county, through the supervisors of the said towns to which said moneys belonged, and they were thereafter so drawn and paid to said towns.
    Argued before LEWIS, BRADLEY, and WARD, JJ.
    Charles H. Brown, for plaintiff.
    Clarence A. Farnam, for defendant.
   LEWIS, J.

Both parties claim to be entitled to the money in question. The defendant concedes that, but for the passage of chapter 401 of the Laws of 1892, entitled “An act to revise and consolidate the laws regulating the sale of intoxicating liquors,” the plaintiff would be entitled to the funds in question. It is the contention of defendant’s counsel that the law as it had theretofore existed was so changed by the act of 1892 that his client is entitled to the fund. Power was given to the various boards of supervisors of the state, by chapter 155 of the Laws of 1828, to abolish by resolution all distinction between the county and town poor in their counties respectively, and have the expense of maintaining them a county charge. Such determination, duly certified by the clerk of the board, was required to be filed with the county clerk. Pursuant to the power thus conferred, plaintiff’s supervisors, in the year 1830, passed the following resolution:

“Resolved, to abolish all distinction between county and town poor, and that from this time forward they may be considered county paupers.”

This resolution was properly certified and filed, as required by law. Chapter 569 of the Laws of 1890, known as the “Town Law,” was in force at the time of the passage of the act of 1892. Section 181 of the former act reads as follows:

“Excise Moneys—How Disposed of. All excise moneys shall be disposed of as directed by the town board of the town in which such moneys are paid,. except in those counties where the support oí the poor is a county charge, in which case such moneys shall be paid into the county treasury, subject to the control of the board of supervisors.”

A similar provision was contained in chapter 444 of the Laws of 1874. By section 15 of the act of 1892, it was provided that.:

“Every board of excise and every commissioner of excise of the town, shall within ten days after the receipt of any money by such board of commissioners, pay such money, or cause it to be paid to the supervisor of such town. Such moneys shall be applied to the payment of the ordinary expenditures payable from the general fund of the city or town respectively, unless otherwise provided by a special or local law.”

It is conceded by the plaintiffs counsel that, were, it not for the concluding clause of this section, to wit. “unless otherwise provided by a special or local law,” the town would be entitled to retain these moneys. It is his contention that the resolution of the board of supervisors heretofore referred to answers the description of a special or local law within the meaning of said act. We assume that the promoters of the act of 1892 had in mind to effect thereby some change in the law as it had theretofore existed. They provided that thereafter all excise moneys shall go to the town authorities, unless otherwise provided by a special or local law. It is altogether improbable that the legislature, when using such explicit language, had in mind to provide that the disposition to be made of such moneys was to depend upon the action of boards of supervisors, for, as we have seen, prior to the passage of that act, whether the excise moneys went to the town or county depended upon the action of the supervisors of the county. If they took no action, the town had the money. If a resolution of the board answers the description of a special or local law within the meaning of the act, then no practical change in the law as it had theretofore existed was effected, for the power to determine where the moneys should go was still left with the supervisors.

It was provided by chapter 628 of the Laws of 1857 that all excise moneys should be paid to the county treasurer, for the use of the poor of the county. This was a general law, affecting the whole state. After the passage of this act, local and special laws were from time to time passed, exempting different counties from the effect of this act of 1857, and making special provisions for the disposition of excise moneys of the various localities. These acts were upon the statute book, unrepealed, at the time of the passage of the act of 1892. It was such acts, we think, that the lawmakers had in mind in the special and local bills provided for by sections 16 and 18 of article 3 of the constitution, and not mere resolutions of boards of supervisors. Section 1 of the act of 1892 repealed all special and local laws in conflict with its provisions, and, were it not for the concluding words of section 15, “unless otherwise provided by a special or local law,” there would be no room for doubt. The towns of our state provide the machinery and pay the expenses of the collection of excise moneys, and there is a propriety in their having the direct benefit of the moneys arising from granting licenses. The act of 1892, as will be seen by an examination of its provisions, bears evidence that its promoters were not unfriendly to the traffic in intoxicating liquors. Section 40 of said act makes a radical change in what is known as the “Civil Damage Act.” Some of its features, which were considered severe and harsh by those engaged in the sale of intoxicating liquors, were modified in the interest of the business. The general policy of the legislation of the state prior to the passage of the act of 1892 had been to devote excise moneys to the support of the poor, thereby associating the traffic in liquor with pauperism. The act of 1892 expressly requires that such moneys shall be applied to the payment of the ordinary expenditures of the city or town respectively. The effect of giving the town the direct benefit of the moneys arising from the granting of licenses would probably be to promote the granting of licenses. If the excise money goes into the county treasury, a no-license town derives equal benefit from it with the town which grants licenses. If the money is to go directly to the town, its electors would naturally look with more favor upon the traffic than if the money is to go into the treasury of the county. We are of the opinion that the legislature had in mind, in passing the act of 1892, to effect a change in the law as it had theretofore existed, and provide that, without regard to whether the poor are a town or county charge, the excise moneys should be paid to and belong to the town, unless there was a local or special state law making a different disposition thereof.

It follows that the defendant is entitled to judgment awarding to it the money in question. All concur.  