In re Nordstrom

18 A. 601, 127 Pa. 542, 1889 Pa. LEXIS 1148

• Court: Supreme Court of Pennsylvania
• Decided: October 28, 1889
• Docket: No. 181
• Status: Published

Opinion

Opinion,

Mr. Chief Justice Paxson :

This was a writ of alternative mandamus, directed to the judges of the Court of Quarter Sessions of Jefferson county, commanding them to show cause why they should not. grant a wholesale liquor license to the petitioner. His petition, as filed in the court below, sets forth, inter alia, “ That he is an applicant for a wholesale liquor license under the terms of the act of assembly of May 24, 1887; that his residence is Young township, in the county of Jefferson; that he is a citizen of the United States; that the place for which a license is desired was formerly a U. S. bonded warehouse, near the residence of the petitioner in said county, and that ■ the business to be conducted at said house is the sale of spirituous liquors by measure not less than one gallon, of his own manufacture,” etc.

The court below refused to grant the license prayed for and in answer to our writ made return, inter alia, (a) that the petitioner was not a distiller or manufacturer of spirituous liquors at the. time of the application, and had not been at any time since on or about February 24,1885, at or about which time his distillery was burned and had not been rebuilt, nor had any visible attempt been made to rebuild it; (5) that it was a prerequisite to the granting of a distillers’ license that the applicant should have had his distillery returned, classed and assessed agreeably to the provisions of the act of April 10, 1819, which had not been done; and (e) that the bond filed by the petitioner was not in conformity with law. Upon this point the return sets forth:

“ Obed II. Nordstrom filed a bond at the date of the filing of his application. It was presented for the approval of the court at the hearing. The bond appeared to have been signed, and sealed by Obed H. Nordstrom, Henry Ernst, T. Pantall and Jacob Iloch, in the order named. After the signing and sealing the name of T. Pantall appeared to have been erased. No note or explanation of this erasure appeared on the bond, nor was any evidence offered to explain it. This erasure, if made after the bond was signed by the other sureties, might have jeopardized a recovery. This was such an irregularity, when taken in connection with the original fact that T. Pan-tall appeared before a justice of the peace with the other sureties and was qualified to the sufficiency of the bond, and that his signature to the jurat was also erased, apparently after being signed by the justice, that the court, in the exercise of its judicial discretion refused to approve the bond.”

We do not think the court below was bound to approve such a bond as this. The commonwealth was entitled to a clean bond, one which upon its face did not require explanation. This bond was not so. Its mere appearance was suggestive of a law-suit. As the bond was not such as required by law, the petitioner had not complied with the statute, and ha was not entitled to the license he asked for. This renders it unnecessary to discuss the other matters, (a) and (5), previously raised by the return. We might well stop here, but there are public reasons, as will bo seen hereafter, why we should dispose of another and the main question presented by this record.

The learned judges make further return, in substance: That the second section of the act of May 24, 1887, only authorizes courts to grant licenses to distillers as was provided by existing laws; that by the existing laws in force at that time, the Courts of Quarter Sessions might in their discretion refuse to grant a wholesale license whenever in their judgment such license would be injurious to the public welfare, and that in the opinion of the court the conservation of the public peace and morals demanded the refusal of this license. The learned judges say in conclusion that they “ will cheerfully and promptly abide by and act upon such judgment, decree or order as your honorable court may see fit to make.”

The tone of this return is unexceptionable. There is a dignified statement of the law as the learned judges below understand it to be, without a trace of insubordination, or the assumption of superior wisdom. At the same time, they express an entire willingness to cheerfully follow o\ir rulings in case they are mistaken as to the law. This graceful submission to the authority of this court is the more to be commended, as it is in sharp contrast to the recent utterances of one or more of the Courts of Quarter Sessions in this state in dealing with the license question.

The learned judges of the court below were right in holding that the present case is not ruled by Pollard’s Case, or that of the Prospect Brewing Company, decided last June, and to be found in Weekly Notes of Cases of July 5th; [ante, pp. 507, 523.] Those cases were decided upon the local laws in force in the county of Allegheny and city of Philadelphia, which we held to be the “ existing laws ” referred to in the wholesale act of May 24,1887, P. L. 194. Subsequent reflection has satisfied us of the entire soundness of that ruling. Indeed, it would be difficult to construct even a plausible argument in support of the contrary view. The attempt to write into that act the provisions of the retail act of May 13th, was so palpably erroneous, and so wide a departure from every recognized principle for the interpretation of statutes, that no further discussion of it is necessary. Hence it follows logically that the granting of wholesale licenses must be regulated by the discretion which “ existing laws ” conferred upon the Court of Quarter Sessions, at the time of the passage of the act of May 24th. At that time, in Allegheny county and Philadelphia there was no discretion at all, beyond requiring that the applicant was a citizen of good moral character and temperate habits. The Court of Quarter Sessions had nothing to do with granting such licenses ; it was done by another officer, and the license was a matter of right upon payment of the fee. It is at least possible that when the legislature passed the wholesale act of May 24th, they overlooked the fact that licenses in Allegheny and Philadelphia were regulated by local laws having no application to the rest of the state, and that those local laws, and no other, were the only “ existing laws ” to which the act of May 24th could possibly apply. That those “ existing laws ” in the localities referred to, are a great evil and have been endured for years against the protest of thousands of the best citizens of those cities, is a fact as painfully clear to us as it is to any one. We do not make the law, however; we merely interpretor declare it. This particular law was the work of the people themselves, through their duly constituted representatives. In our decisions in the cases referred, to, we endeavored to declare what the law was so plainly and emphatically that the people could see exactly what they had done, and, if dissatisfied with their work, could amend the law through their legislature. We have no such power.

In Pollard’s Case, and the Prospect Brewing Case we decided what was before us and nothing more» If we had gone further and declared the law as applicable to the state outside of Allegheny county and Philadelphia, we would have decided it without a case before us, and without the aid of an argument. Our opinion would have been mere dictum, and would have bound no one, not oven ourselves. The wisdom of confining a decision to what is before the court, becomes daily more apparent with increased judicial experience. It never occurred to us that the professional, much less the judicial mind, could possibly construe a decision upon local laws, and which was therefore necessarily local, to have any application to the rest of the state where such local laws had no existence. In this, however, we were mistaken. We are informed that some judges throughout the state have felt themselves constrained by our decision to grant wholesale licenses, and, in one instance at least, a judge who thought our decision was general, refused a license by an act which was evidently meant for insubordination. The insubordination, however, was merely in intent, as the learned judge unconsciously followed our ruling and entered a lawful judgment without intending it. Several of the Quarter Sessions judges have, however, taken another and the correct view of this question. I have now before me a copy of the Weekly Notes of Cases for September 13,1889, in which I find carefully prepared opinions upon this question, by Judge Stewart of Franklin county and Judge Yerkes of Bucks county,

* in each of which, while following strictly in the line of our decisions in the Philadelphia and Allegheny cases, they yet hold that said decisions have no application to the rest of the state. This clearly appears from the elaborate and able opinion of Judge Stewart, a portion of which I will take the liberty of extracting. †

“It seems to have been assumed by the courts below [Quarter Sessions of Allegheny and Philadelphia], that by existing laws was meant the earlier act of May 13, 1887, which did unquestionably, by its very terms, commit the granting of licenses very largely to their discretion. Herein error was committed, for, as is clearly shown by the opinion of the Chief Justice, the two acts have no relation to each other whatever, the one being a restraining statute, while the other, relating to wholesale licenses, was enacted for the purpose of revenue solely. It is unnecessary to quote here at length the several reasons advanced to show that it could not have been the legislative intent that the earlier act of the 13th was to be read into the later act of 24th of May. It is enough to say that the whole purpose or scope of the argument of the court is to show that by the term ‘ under existing laws ’ was not meant the retail act of May 13, 1887, but such other laws as related to wholesale licenses and which remained unrepealed. In the Pollard Case, the existing law was the local act of 1872, relating to Allegheny county exclusively. In the Prospect Brewing Co. Case, the existing laws were those which related to the city of Philadelphia exclusively. And in neither case did the existing law vest any discretion in the Quarter Sessions court, where the qualification of the applicant was conceded. With this plain and explicit interpretation of the act of May 24th by the Supreme Court before us, we have but to determine what was the existing law in regard to wholesale licenses in Franklin county at that time. Certainly it was not the act of May 13th : that much has been settled beyond all dispute. It could not have been the act of 1872, which determined the Pollard Case ; for this act was local in its operations, being limited to Alleglieny county. Nor was it the law governing the granting of license in Philadelphia, under which the Prospect Brewing Co. Case was decided; for in Philadelphia, prior to the act of 1887, the courts had nothing to do with the granting of license to sell liquor, as we shall see further on. What, then, was the ‘ existing law ’ as applicable to Franklin county, and, indeed, the entire state, excepting those localities which were under the operation of special statutes ? ”

The learned judge then proceeds to discuss very clearly and at length the legislation upon this subject and comes to the conclusion that the “ existing law ” in Franklin county and throughout the state, excepting where interfered with by local statutes, was the act of March 22, 1867, P. L. 40. In this he was clearly right.* Our attention has not been called to any local law in force in Jefferson county, in regard to the granting of wholesale licenses. It follows that the general law of 1867 is in force there and is the “ existing law,” referred to in the act of May 24, 1887.

We do not think it necessary to discuss the act of 1867 at length. It places wholesale and retail licenses upon the same plane, and confers upon the Courts of Quarter Sessions the same discretion in granting or refusing a wholesale license as in the case of a retail license. It makes no distinction between them, lilis has been the uniform construction given to that act by the Courts of Quarter Sessions throughout the state for many years, with very rare exceptions if any. Even if we doubted the correctness of such construction, we would be loth to disturb a principle which had received the universal approval of so large a number of distinguished jurists. But so far from doubting it, the construction referred to was distinctly approved by this court in Reed’s App., 114 Pa. 452. This and some other cases were not referred to in Pollard’s Case and that of the Prospect Brewing Company, for the reason that they had no application: we were then considering the local acts in force in Allegheny county and the city of Philadelphia; not the act of 1867, which is a general law. This is too plain a matter to require further discussion.

While it is a delicate matter for this court to criticise the act of a co-ordinate department of the government, we mnst be permitted to say that in our judgment the law in regard to wholesale licenses contains some very serious defects. We need refer to but one, the provision that a wholesale dealer may sell by the quart. It seems a perversion of terms to call a person who sells liquor by the quart a wholesale dealer. It is practically a retail traffic and of the worst character. But we will not pursue the matter further. The whole subject is earnestly commended to the attention of the legislature.

The peremptory mandamus is refused.

Perhaps, McBride’s Application, 7 Pa. C. C. R. 77.

See Gordon’s Application, 7 Pa. C. O. R. 130.

See Gordon’s Application, 7 Pa. C. C. R. 130.