In re Blumenthal

Supreme Court of Pennsylvania

In re Blumenthal

18 A. 395, 125 Pa. 412, 1889 Pa. LEXIS 732

CourtSupreme Court of Pennsylvania

DecidedApril 8, 1889

StatusPublished

Cited by21 cases

This text of 18 A. 395 (In re Blumenthal) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Blumenthal, 18 A. 395, 125 Pa. 412, 1889 Pa. LEXIS 732 (Pa. 1889).

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Opinion

Opinion,

Mu. Chief Justice Paxson :

This was a petition for an alternative mandamus to the judges of the Court of Quarter Sessions of Philadelphia county, to show cause why they should not grant to the petitioner a transfer of the license of Moses Blumenthal, to sell spirituous and other liquors at the Philadelphia City Hotel. The petition was presented to us at Pittsburgh at the last October term, and was dismissed. No opinion was filed, as we supposed the grounds of our refusal of the writ were sufficiently obvious. We have since then been urged to indicate the reasons for our action, on the ground that there is great doubt and conflict of opinion as to the law and the basis of our decision. In deference to the urgency of this request we will indicate very briefly our views on the question raised by the petition.

While it is true, as was said in Raudenbusch’s Petition, 120 Pa. 328, that “ neither the petitioner nor any other person in this state has any property in the right to sell liquors,” yet it is also true that when the state grants a license to a man for that purpose, the latter acquires a privilege to sell liquors for a specified time, for which he has paid the commonwealth a valuable consideration. The privilege, however, is personal, and is not assignable, nor does it go to the personal representatives in case of death. It follows, therefore, that a license cannot be transferred, unless expressly authorized by act of assembly and in the mode therein prescribed.

The act of 1887, by which the issue of licenses to sell liquor is now' regulated, makes no reference to transfers, and they are therefore still governed by the act of April 20, 1858, section 7, P. L. 366. That act provides that “ if the party licensed shall die, remove, or cease to keep such house, his, her, or their license may be transferred by the authority granting the .same .....on compliance with the requisitions of the laws in all respects, except publication, which shall not in such case be required.” The requisitions of the laws under this act permitted a certain discretion, to the authority granting or refus[416]*416ing licenses, and this discretion, now vested in the courts, though still a legal discretion, depending on the law, and not on the individual opinions of the judges, is considerably enlarged by the act of 1887.

The petitioner sets out in her petition that she has complied with all the requisitions of the laws except publication, and that she has had a hearing before the judges of the Quarter Sessions. That is all this court could secure for her on the writ that she asks. She was entitled to a hearing, and if she had been denied that, it could be secured to her by mandamus, but there the remedy ends. The judgment to be pronounced as a result of the hearing, is for the Court of Quarter Sessions, not for us. It is not necessary to further repeat what we have already said in Raudenbusch’s Case. The court below had the power, under the act of 1858, to transfer this license, but it was a matter of discretion and not reviewable here. For the reasons above given the petition was

Dismissed.

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Opinion,

Mu. Chief Justice Paxson :

This was a petition for an alternative mandamus to the judges of the Court of Quarter Sessions of Philadelphia county, to show cause why they should not grant to the petitioner a transfer of the license of Moses Blumenthal, to sell spirituous and other liquors at the Philadelphia City Hotel. The petition was presented to us at Pittsburgh at the last October term, and was dismissed. No opinion was filed, as we supposed the grounds of our refusal of the writ were sufficiently obvious. We have since then been urged to indicate the reasons for our action, on the ground that there is great doubt and conflict of opinion as to the law and the basis of our decision. In deference to the urgency of this request we will indicate very briefly our views on the question raised by the petition.

While it is true, as was said in Raudenbusch’s Petition, 120 Pa. 328, that “ neither the petitioner nor any other person in this state has any property in the right to sell liquors,” yet it is also true that when the state grants a license to a man for that purpose, the latter acquires a privilege to sell liquors for a specified time, for which he has paid the commonwealth a valuable consideration. The privilege, however, is personal, and is not assignable, nor does it go to the personal representatives in case of death. It follows, therefore, that a license cannot be transferred, unless expressly authorized by act of assembly and in the mode therein prescribed.

The act of 1887, by which the issue of licenses to sell liquor is now' regulated, makes no reference to transfers, and they are therefore still governed by the act of April 20, 1858, section 7, P. L. 366. That act provides that “ if the party licensed shall die, remove, or cease to keep such house, his, her, or their license may be transferred by the authority granting the .same .....on compliance with the requisitions of the laws in all respects, except publication, which shall not in such case be required.” The requisitions of the laws under this act permitted a certain discretion, to the authority granting or refus[416]*416ing licenses, and this discretion, now vested in the courts, though still a legal discretion, depending on the law, and not on the individual opinions of the judges, is considerably enlarged by the act of 1887.

The petitioner sets out in her petition that she has complied with all the requisitions of the laws except publication, and that she has had a hearing before the judges of the Quarter Sessions. That is all this court could secure for her on the writ that she asks. She was entitled to a hearing, and if she had been denied that, it could be secured to her by mandamus, but there the remedy ends. The judgment to be pronounced as a result of the hearing, is for the Court of Quarter Sessions, not for us. It is not necessary to further repeat what we have already said in Raudenbusch’s Case. The court below had the power, under the act of 1858, to transfer this license, but it was a matter of discretion and not reviewable here. For the reasons above given the petition was

Dismissed.

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Bluebook (online)

18 A. 395, 125 Pa. 412, 1889 Pa. LEXIS 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-blumenthal-pa-1889.

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