Babb v. Taylor

2 Pa. Super. 38, 1896 Pa. Super. LEXIS 8

• Court: Superior Court of Pennsylvania
• Decided: July 16, 1896
• Docket: Appeal, No. 63
• Status: Published

Opinion

Opinion by

Reeder, J.,

Samuel J. Babb presented an application for license which in every way conformed to the requirements of the acts of assembly now in force in this commonwealth. A remonstrance was filed by D. M. Taylor and others alleging that the applicant had while holding a license sold liquor by the quart to be drank elsewhere than on the premises. Upon the hearing the applicant admitted that he sold a bottle of liquor containing less than one quart to be drank elsewhere than at his hotel. The court below in its opinion find that the contents of the bottle so sold did not exceed one quart. The court therefore for this reason alone refused the applicant a license setting forth tins as the sole reason for such action. We do not think that the acts regulating the sale of liquor at retail in this commonwealth justify any such construction of the law. A retail liquor dealer is licensed to sell liquor in quantities not exceeding one quart. Therefore the sale of a bottle of liquor containing one quart is within the purpose of his license. Must the licensee see to it that the purchaser to whom he sells one quart of liquor consumes it all before he leaves the premises ? Chu this be the meaning of the law ? Must the landlord whose guest orders a bottle of wine or spirituous liquor to his room see to it that his guest takes no remnant of it away in his baggage ? Either he has a right to sell in this way or he has not. If he has not, then such sale being unauthorized is illegal and in violation of the provisions of the act of 1887. If it is in violation of the provisions of the act of 1887 and its supplements it is a misdemeanor. Suppose a man should be indicted for such sale could a conviction be sustained? Yet if it is illegal it would be a misdemeanor. All sales not declared illegal by some act of assembly are legal. This licensee in making such sales did that which was within his right by virtue of his license or he made a sale of liquor which he was not licensed to make and was guilty of a misdemeanor. The latter could not successfully be contended for.

It may well be that recldess selling of liquor to be drank on or off the premises would be evidence of the applicant’s unfitness, but that question is not before us, as the license was not refused because of the unfitness of the applicant.

It follows that such sale was a legal sale; one which he was authorized to make under and by virtue of the provisions of the law under which he was granted a license, and this being the only reason given by the court below for refusing the license, the action of the court cannot be sustained. We are therefore of opinion that the only reason given by the court below for refusing this license was not a valid one, and unless there is other ground which does not appear for refusing the applicant a license it should be granted.

Judgment reversed and procedendo awarded.