Opinion
Argued October 20, 1926
Decided October 22, 1926
Appeal from the Supreme Court, Appellate Division, First Department.
Bertha Rembaugh, Irving Albert and Frances K. Marlatt for appellant.
George P. Nicholson, Corporation Counsel ( Elliot S. Benedict, John F. O'Brien and William E.C. Mayer of counsel), for respondents.
The Supreme Court has denied the relator's petition for an order of mandamus directing the board of elections of the city of New York not to comply with the directions of the Legislature, contained in chapter 850 of the Laws of 1926, to submit to the electors at the general election to be held this year the question: "Should the Congress of the United States modify the federal act to enforce the eighteenth amendment so that the same shall not prohibit the manufacture, sale, transportation, importation or exportation of beverages which are not in fact intoxicating as determined in accordance with the laws of the respective states?" Neither the order of Special Term nor the order of the Appellate Division shows on its face that the denial of the relief prayed for was based upon lack of power rather than the exercise of discretion. The undisputed facts do not exclude the exercise of some discretion. Under the circumstances disclosed the court might, if it saw fit, withhold its writ of mandamus to nullify at this time attempted legislative action which does not interfere with private rights and which does not seriously invade a public right. A question of law which this court can review would arise only if the undisputed facts permit but one inference. ( People ex rel. Van Tine v. Purdy, 221 N.Y. 396.)
These considerations require that we affirm the order of the Appellate Division, but even if we could disregard them, we are of the opinion that the petitioner has failed to show that the action of the Legislature is beyond the powers conferred upon it under the Constitution of the State. The petitioner insists that public officers disregard a statute which in terms imposes upon them a public duty. The action of the Legislature does not constitute an attempted exercise of powers exclusively granted to the executive or judicial branches of the government. It is not claimed, and no facts are shown, that could lead to the conclusion, that the statute is within any restrictions or prohibitions expressly placed by the Constitution upon the exercise of the legislative power. Except for such restrictions or prohibitions the legislative power granted to the Legislature is plenary and that power includes the right to enact the statute under consideration.
The order of the Appellate Division should be affirmed, without costs.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Order affirmed, etc.