
    People ex rel. Oscar C. Wood, App’lt, v. Board of Commissioners of Excise of Town of Randolph, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    Excise law—Local prohibition.
    Section 41, chap. 401 of 1893, recognizes the right of each town to establish local prohibition by the vote of its electors.
    Appeal from an order dismissing a certiorari.
    
      William H. Henderson, for app’lt; I). G. Reilly, for resp’t.
   Dwight, P. J.

The return of the commissioners is to the effect that they were elected as no-license commissioners, and that for that reason they felt it to be their duty, “both in a legal and moral sense,” to refuse to grant the license applied for. We think the order of the special term dismissing the proceedings was well based upon such return, and should be affirmed.

Section 41 of the excise law of 1892 (Laws 1892, c. 401) is as-follows: “Local Option. Nothing herein, except section thirty-one shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such town shall revise by vote, such local prohibition.” . Section 31, referred to, makes it a misdemeanor to sell intoxicating liquor without a license. The section 41, above quoted, is in all material respects a transcript of section 6 of the excise law of 1873, (Laws 1873, c. 549,) with the omission of the words, “ in accordance with any law providing for such voting,” which, in the act of 1873, occur after the words, “vote for local prohibition.” In other words, the act of 1873 recognized and gave effect to the vote of any town for local prohibition only when such vote was given in accordance with some existing law providing therefor; whereas the act of 1892, by omitting the qualification mentioned, apparently recognized the right of each town to establish local prohibition by the vote of its electors, without any special provision of law prescribing the mode of taking such vote. The recognition, if intended, was certainly in accordance with the practical effect which had been given to the existing laws for many years. The act of 1873 was followed in 1874 by the provision for the election in each town of separate officers designated as “commissioners of excise,” to be voted for on a separate ballot, which should be deposited in a separate box, marked “Excise.” Laws 1874, c. 444, §§ 1, 2. The court will take judicial cognizance of the fact as part of the contemporary history of the state that ever since the last-mentioned act became a law the people of the state have given to its provisions (in connection with that before quoted from the act of 1873) the effect of establishing a system of local option; and that, accordingly, ever since 1874, the annual election of commissioners of excise in the towns has been made the occasion of an expression at,the polls of the sentiment of the town for or against the granting of license for the sale of liquor. This has been done by each elector’s casting his vote in favor of commissioners known and understood to be respectively in favor of or opposed to the granting of license. And thus “ local option ” everywhere, and “ local prohibition ” wherever the expressed will of the electors has demanded it, have come ‘to be accomplished facts in this state, known of all men. It would seem, therefore, to be something like an impeachment either of the good faith or of the good sense of the legislature of 1892 to suppose that in re-enacting section 6 of the act of 1873—especially with the significant omission of the qualification above mentioned—it did not intend to recognize the existing, actual and practical system of local option which had been in force throughout the state for nearly a score of years. If we assume that such was the intention of the legislature, then, under the system of local option thus recognized and sanctioned, it was the right of the electors of the town of Randolph to exercise their choice in the election of no-license commissioners'; and, having done so, the commissioners so elected were,—as they have testified they felt themselves to be,—both legally and morally, bound to refuse all license to sell liquor in their town. This view of the meaning and effect of the provision quoted from the statute of 1892 has been maintained with much force in many cases at special term within the past year. See People ex rel. Watkins v. Commissioners of Excise, 24 N. Y. Supp. 739 ; 54 St. Rep. 202; People ex rel. Davis v. Truman, 23 N. Y. Supp. 913; 53 St. Rep. 726. In the latter of these cases, Forbes, J., and in the former, Ward, J., have so elaborated the statement of the grounds of their decision that we deem it only necessary to refer to their opinions for further argument of the questions there presented. ■

But if it should be held that the legislature has not so far recognized and sanctioned the existing system of local option as to give to the vote of the town the force of law, and make it absolately binding upon the commissioners, yet we can have no doubt that the commissioners were justified in giving to such vote a controlling effect in the exercise of their discretion whether to grant or refuse license in their town. People ex rel. Kidd v. Commissioners of Excise, 25 N. Y. Supp., 873; and we find nothing in the return of the commissioners in this case which necessarily opposes the conclusion that they refused the application of the relator in the exercise of a just discretion, based upon a proper consideration of the views and wishes of the electors of the town, as demonstrated .in their own election.

The order appealed from should be affirmed, with costs to the respondents. So ordered.

All concur.  