Donovan's License

9 Pa. Super. 647, 1899 Pa. Super. LEXIS 92

• Court: Superior Court of Pennsylvania
• Decided: March 23, 1899
• Docket: Appeal, No. 8
• Status: Published

Opinion

Opinion by

Rice, P. J.,

We are not to be understood as holding that the court of quarter sessions may not, under any circumstances, refuse to grant a license to a person upon the ground that the sale of liquor’s by him upon the premises would be a breach of a covenant in his deed or running with the land which a court of equity would enjoin. Nor are we required to construe the clause in the deed from the remonstrator to John D. Leonard and to declare whether it has or has not the effect of such a covenant, and is enforceable against the licensee. Without expressing an opinion upon these questions we base our decision affirming the order upon the narrower ground that the law has furnished no mode by which evidence given on the hearing of a liquor license application, in support, in denial, or in rebuttal of an allegation of fact contained in a remonstrance can be brought on the record.

So that, even if it were a fact that the deed, under which the licensee holds, contains a covenant or condition that no liquor shall be sold upon the premises, still it would not necessarily follow that the court committed error or was guilty of an abuse of discretion in granting the license. There might be other facts which would make it inequitable to enforce the covenant or condition specifically. We have no right to take their nonexistence for granted because they are not mentioned in the judge’s opinion. To hold otherwise would be to say that an opinion filed in a license case is equivalent to, and is to be given all the effect of, a case stated or a special verdict, where facts not stated are presumed not to exist. Whether or not such facts existed in the present case could only be determined by an examination of the evidence. But the evidence is not before us, and could not be considered even if it were sent up and printed in the paper-book, because it is not part of the record Carlson’s License, 127 Pa. 380. The record is free from irregularity, and if we were to go outside of it in search of reasons for holding that the court committed error in granting the license we would become involved, as Chief Justice Woodward said in Maucli Chunk v. Nescopeck, 21 Pa. 46, in an abortive attempt to administer justice to the parties without the assurance that we have their whole case before us. Finding no error in the record and it not being clear that there was any abuse of discretion the order is affirmed.