Brady, J.:
This proceeding was instituted for the purpose of obtaining a judicial construction of the act of 1857 (chap. 628) and the acts amend-atory thereof and relating thereto regulating the sale of intoxicating liquors, and the question immediately involved is whether the keeper of an inn or hotel is prohibited from selling to his guests intoxicating liquors to be used with their meals on Sunday. It may not be inappropriate to say that the legislature óf this State has from the beginning of the present century been engaged in the effort to regulate the sale of intoxicating liquors, and these efforts seem to have culminated in the act of 1857, to which reference has already been made. It is not necessary to mention the several acts bearing upon the question, although reference may be made to one or more of them during the discussion of the question under consideration.
It must be said, however, that a distinction nas been made, and particularly in the latter acts, between the seller of liquors eo nomine, and the innkeeper or hotel keeper, who, as such, furnishes them for his guests. The Revised Statutes provided that no keeper of an inn or tavern, authorized to retail spiritous liquors, should on Sunday sell or dispose of them or any of them, except to lodgers in such inns or taverns, or to persons actually traveling oh that day in the cases allowed by law; and by the twenty-first section of the act of 1857 it was provided that no tavern or hotel keeper, or person licensed to sell liquors, should sell or give away any intoxicating liquors or wines on Sunday or upon any day on which a general .or special election or town meeting should beheld, within onerquarter of a mile from the place where such general or special election or town meeting should be held ,in any of the cities, villages or towns of this State .to. any person whatsoever as a beverage.
[212] It will be perceived on reading this statute that the prohibition is against selling or giving away intoxicating liquors as a beverage, there being no prohibition in express terms against providing it for guests to be taken with meals. In other words, the design of the statute was to prevent the indiscriminate sale of intoxicating liquors as a drink upon the days named to the public generally.
The statutes are to be construed with reference to existing things, for the purposes of ascertaining what was the good which would result, or the evil that was to be overcome by their passage; and the evil to be overcome was the sale of liquor during the day without reference to meals and by the prohibition of which it ivas hoped that there would be no intoxication and consequently no riot or disturbance, or interference in any way with the peace which was regarded as indispensable upon the days named.
In the State of "Wisconsin, it was provided by statute that if any tavern-keeper or other person should give away or barter any intoxicating liquor on the first day of the week, commonly called Sunday, or on the day of the annual town meeting or the annual fall election such tavern-keeper or other person so offending should be deemed guilty of a misdemeanor. And the court said, in construing that statute in Jensen v. State (60 Wis., 531), “the evil to be suppressed or at least mitigated by the enactment of this law, was the drunkenness and general disorder which resulted from the unrestricted sale of intoxicating liquors on election days and town meeting days, which tended to the corruption of the elections held on such days, and which on Sundays disturbed the peace, quiet and order which ought to characterize that day.
[t is perfectly notorious that when the act of 1857 was passed the existence of a bar or drinking saloon as a part of the hotel was a distinguishing characteristic, and that there intoxicating liquors, drinks or beverages were to be obtained during the day without reference to meals. These were the chief sources of intoxication, because of the readiness with which the appetite could be appeased or gratified, and if the drinker felt so disposed, the ease with which he could go from one inn to another and vary whilst he increased the number of his drinks. Thus it was that the beverage was obtained which is alluded to in the statute.
The lexicographers give us as the primary meaning of the word [213] beverage : “ Liquor to be drunk,” “ drink; ” although there are other naeanings but all involving the proposition that it is a drink. (See Worcester and Webster.) There seems to be little doubt that the prohibition against it on the days named as a beverage was aimed at the bar or drinking saloon already referred to, where drinks were indiscriminately retailed and from which unfortunate results were often manifest.
In the act oi 1813 (chap. 549), amendatory of the acts of 1857 (chap. 628) and 1870 (chap. 175), which indicates an intention on the part of the legislature to preserve the distinction suggested between the hotel and its bar-room or drinking saloon, it is provided that nothing contained in the fifth section which relates to the sale of liquor between one and five o’clock in the morning shall be construed to prevent hotels from receiving and entertaining travelers at any time subject to the restrictions contained m the act and the act amended. The word “ entertaining directly expresses the intention to make this distinction between the hotel as such, and the bar or drinking saloon; because we find that entertaining” is defined to be “ affording entertainment,” and that entertainment means “ a hospitable repast; ” a " banquet" and a banquet is said to be “a grand entertainment of eating and drinking,” “a sumptuous feast.” (See Worcester and Webster)
The view expressed of the effect of this phraseology of the statute is strengthened by the suggestion that the legislature were dealing with the subject of intoxicating drinks and no ether, and that the word “ entertaining ” could not have meant the mere service of food for which no legislation was required, it being the undoubted right of a hotel-keeper, with which even the legislature itself could not interfere, to receive persons for that purpose as well as for lodgment.
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Brady, J.:
This proceeding was instituted for the purpose of obtaining a judicial construction of the act of 1857 (chap. 628) and the acts amend-atory thereof and relating thereto regulating the sale of intoxicating liquors, and the question immediately involved is whether the keeper of an inn or hotel is prohibited from selling to his guests intoxicating liquors to be used with their meals on Sunday. It may not be inappropriate to say that the legislature óf this State has from the beginning of the present century been engaged in the effort to regulate the sale of intoxicating liquors, and these efforts seem to have culminated in the act of 1857, to which reference has already been made. It is not necessary to mention the several acts bearing upon the question, although reference may be made to one or more of them during the discussion of the question under consideration.
It must be said, however, that a distinction nas been made, and particularly in the latter acts, between the seller of liquors eo nomine, and the innkeeper or hotel keeper, who, as such, furnishes them for his guests. The Revised Statutes provided that no keeper of an inn or tavern, authorized to retail spiritous liquors, should on Sunday sell or dispose of them or any of them, except to lodgers in such inns or taverns, or to persons actually traveling oh that day in the cases allowed by law; and by the twenty-first section of the act of 1857 it was provided that no tavern or hotel keeper, or person licensed to sell liquors, should sell or give away any intoxicating liquors or wines on Sunday or upon any day on which a general .or special election or town meeting should beheld, within onerquarter of a mile from the place where such general or special election or town meeting should be held ,in any of the cities, villages or towns of this State .to. any person whatsoever as a beverage.
[212] It will be perceived on reading this statute that the prohibition is against selling or giving away intoxicating liquors as a beverage, there being no prohibition in express terms against providing it for guests to be taken with meals. In other words, the design of the statute was to prevent the indiscriminate sale of intoxicating liquors as a drink upon the days named to the public generally.
The statutes are to be construed with reference to existing things, for the purposes of ascertaining what was the good which would result, or the evil that was to be overcome by their passage; and the evil to be overcome was the sale of liquor during the day without reference to meals and by the prohibition of which it ivas hoped that there would be no intoxication and consequently no riot or disturbance, or interference in any way with the peace which was regarded as indispensable upon the days named.
In the State of "Wisconsin, it was provided by statute that if any tavern-keeper or other person should give away or barter any intoxicating liquor on the first day of the week, commonly called Sunday, or on the day of the annual town meeting or the annual fall election such tavern-keeper or other person so offending should be deemed guilty of a misdemeanor. And the court said, in construing that statute in Jensen v. State (60 Wis., 531), “the evil to be suppressed or at least mitigated by the enactment of this law, was the drunkenness and general disorder which resulted from the unrestricted sale of intoxicating liquors on election days and town meeting days, which tended to the corruption of the elections held on such days, and which on Sundays disturbed the peace, quiet and order which ought to characterize that day.
[t is perfectly notorious that when the act of 1857 was passed the existence of a bar or drinking saloon as a part of the hotel was a distinguishing characteristic, and that there intoxicating liquors, drinks or beverages were to be obtained during the day without reference to meals. These were the chief sources of intoxication, because of the readiness with which the appetite could be appeased or gratified, and if the drinker felt so disposed, the ease with which he could go from one inn to another and vary whilst he increased the number of his drinks. Thus it was that the beverage was obtained which is alluded to in the statute.
The lexicographers give us as the primary meaning of the word [213] beverage : “ Liquor to be drunk,” “ drink; ” although there are other naeanings but all involving the proposition that it is a drink. (See Worcester and Webster.) There seems to be little doubt that the prohibition against it on the days named as a beverage was aimed at the bar or drinking saloon already referred to, where drinks were indiscriminately retailed and from which unfortunate results were often manifest.
In the act oi 1813 (chap. 549), amendatory of the acts of 1857 (chap. 628) and 1870 (chap. 175), which indicates an intention on the part of the legislature to preserve the distinction suggested between the hotel and its bar-room or drinking saloon, it is provided that nothing contained in the fifth section which relates to the sale of liquor between one and five o’clock in the morning shall be construed to prevent hotels from receiving and entertaining travelers at any time subject to the restrictions contained m the act and the act amended. The word “ entertaining directly expresses the intention to make this distinction between the hotel as such, and the bar or drinking saloon; because we find that entertaining” is defined to be “ affording entertainment,” and that entertainment means “ a hospitable repast; ” a " banquet" and a banquet is said to be “a grand entertainment of eating and drinking,” “a sumptuous feast.” (See Worcester and Webster)
The view expressed of the effect of this phraseology of the statute is strengthened by the suggestion that the legislature were dealing with the subject of intoxicating drinks and no ether, and that the word “ entertaining ” could not have meant the mere service of food for which no legislation was required, it being the undoubted right of a hotel-keeper, with which even the legislature itself could not interfere, to receive persons for that purpose as well as for lodgment.
A kindred question was presented in Wood v. The City of Brooklyn (14 Barb., 425): The defendant passed an ordinance entitled “ A law to prevent the sale of certain commodities in the city of Brooklyn on Sundays,” the second section of which provided that no person should sell or dispose of any ale, porter, strong or spirituous liquors in that city on Sunday; and it was held to be void, so far as it related to the sale by inn-keepers to their lodgers and lawful travelers pursuant to their licenses, because in conflict with the provisions of the Revised Statutes, to which attention has [214] already been called. (See 1 R. S., 678, § 4; Id. 676, § 72.) This ease is an express authority for the proposition that under the Revised Statutes the inn-keeper could sell to his lodgers or travelers spirituous liquors, and for the proposition also that a distinction was made against the indiscriminate sale of liquors on Sunday, and also to sustain the suggestion that there was designed to be a difference between the sale of intoxicating liquors to the general public and to the lodgers or guests of the hotel-keeper as such. The subject thus discussed is briefly considered. It might be extended by allusions to numerous cases in which inns and hotels, their origin, offices and extent, and the good and bad results flowing from their existence, have been given, described and commented upon. To indulge in this vein of thought would be to write an essay upon the subject which for the purposes of this controversy, however interesting it might be, is not necessary.
An analysis of the statute has led to the conclusion that hotel-keepers and inn-keepers under its provisions have a right to sell spirituous liquors to their guests on Sunday to be taken with their meals. But even if this view, as a legal deduction from the various statutes, be incorrect, another principle of law presents itself which must be applied, viz., that since the passage of the act of 1857, and until within a very recent date, a period extending over thirty years, the practical construction of the act has been such as is herein stated, and it must be assumed that this construction has been known to every legislature which has assembled since 1857, and yet no act has been passed interfering with it in any way.. “ Such a construction presents itself to a court with a force that is not easy to resist,” says Cooley on Constitutional Limitations (p. 81 and cases cited). And in the cases of Stewart v. Laird (1 Cranch, 299); Martin v. Hunter's Lessee (1 Wheat., 352); Cohens v. Virginia (6 id., 418); Packard v. Richardson (17 Mass., 144); In re Warfield (22 Cal., 59), and Scanlan v. Childs (33 Wis., 663), and in Sedgwick on Statutory and Constitutional Laws (212, 213, 214 [2d Am. ed.]), the doctrine is asserted and maintained that in construing an act the court may properly refer to the history of the times and situation of the people when it was passed for the purpose of determining its meaning, scope and intention, and that a contemporaneous is generally the best construction of a statute, giving as it [215] does tbe sense of the community to the terms made use of by the legislature. The dictum in 3 Pickering, 518, is singularly felicitous. “ Contemporaneous exposition,” it is said, “of doubtful provisions in all instruments, and particularly in legislative enactments and constitutional charters, are held to be legitimate and useful sources of construction; what has been done in the beginning and has continued to be done for a long series of years, without any question as to the rightful power and authority on which such rights have been granted, may be presumed by succeeding public agents to have been rightfully and properly done,.” And these all illustrate the old maxim, “ Contemporáneo, exjpositio estfortissimo lege”
These conclusions are not at all affected by the form of the license. A critical examination, assisted by the deliberate and mature consideration and comparison of the act of 1857 and the several amendments thereof, suggested by the argument at the General Term, demonstrated that the power of the board of excise is limited to the granting or refusing of licenses. If the license be granted, the statutes regulates the rights acquired by it, the restrictions to be observed and the punishment for each violation of its provisions. It cannot, therefore, either enlarge or diminish these rights and obligations, or interfere with them in any way. The officers composing it cannot insert in the license a limitation, restriction or condition which is repugnant to the statute; but if they do so, it is void, and hence the clause in the relators’ license absolutely prohibiting the sale of liquor upon certain days named in it, is, as the result of our construction and interpretation of the statute, unauthorized and nugatory. It follows that the arrest of the relators was unwarranted and they should be discharged.
Ordered accordingly.