In re Pollard for License

17 A. 1087, 127 Pa. 507, 1889 Pa. LEXIS 1145

Opinion

pollakd’s petition.

Opinion,

Mr. Chief Justice Paxson:

- The plaintiff in error presented her petition to the Court of Quarter Sessions of Allegheny county, praying for a license to sell liquors at wholesale at No 1044 Penn avenue, in said city. The petition was in proper form, and it was not denied that she had complied with all the requirements of the law. Upon the hearing of her petition, there was no remonstrance or oh jection to the granting of her license, or to the form of her petition or bond. The court below refused her appli cation, and also declined to grant a rehearing. The record, which has been brought up by the writ of certiorari, fails to disclose any remonstrance filed or objection made to her application. Under such circumstances is the case reviewable here ?

We decided in Raudenbusch’s Petition, 120 Pa. 828, that the granting of a license to sell liquor at retail, under the act of May 18, 1887, P. L. 108, was within the discretion of the Quarter Sessions, and not reviewable upon certiorari. The court below applied the doctrine of that case to applications for licenses, made under the act of May 24, 1887, P. L. 194, “ providing for the licensing of wholesale dealers in intoxicating liquors.” The narrow question presented for our consideration is, whether under the act relating to wholesale licenses, the court has the same discretion to grant or refuse a license as it has under the prior act relating to retail licenses.

It requires but a glance at the two acts to see that their ob jeet is essentially different. The retail act of May 13th was intended to restrain the sale of - liquors. This clearly appears in its title, which reads: “ An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof.” This was the construction placed upon that act in Itaudenbusch’s Petition, supra. The act of May 24, providing for wholesale licenses was a revenue act. There is not a word in it to indicate any intention of restraining the sale of liquor. The second and third sections of said act are as follows:

“ Section 2. Licenses shall be granted only by the Court of Quarter Sessions of the proper county, in such manner as is provided by existing laws, and shall be for one year from a date fixed by rule or standing order of said court: the said court shall fix by rule or standing order a time at which applications for said licenses shall be heard, at which time all persons applying or making objections to applications for licenses may be heard by evidence, petition, remonstrance, or counsel: Provided, That for the present year licenses may be granted under previous laws at any session fixed by said court, not later than June 30th. Provided, further, That it shall not be lawful for any rectifier, compounder, wholesale dealer, storekeeper, agent or bottler to sell in less quantities than one quart, and distillers, brewers, and manufacturers shall not sell in less quantities than one gallon.

“Section 3. That all bottlers within the commonwealth shall be required to procure license from the Court of Quarter Sessions of the respective counties in which they are located, in the manner provided for in the second section of this act, for which they shall pay the sum of two hundred dollars in cities of the first, second, and third classes, one hundred dollars in all other cities, boroughs and townships: Provided, That no bottler shall be permitted to sell spirituous, vinous, malt, or brewed liquors to be drank upon the premises where sold, nor at any place provided by such seller for such purpose.”

There are two things to be noticed in the second section above quoted. They are (a) that licenses shall be granted by the Court of Quarter Sessions, in such manner as is provided by existing laws, and (5) that applications for licenses may be heard by evidence, petition, remonstrance, or counsel. From the latter proposition it may be argued with some force that the court has a discretion in the matter of wholesale licenses. For of what use would it be to hear an application by “ evidence, petition, remonstrance, or counsel,” unless the court has the power to decide, that is, to grant or refuse such application. All this is conceded. The court has a discretion in such cases; it will be our purpose to define the character of that discretion and its extent.

As preliminary to the discussion of this point, it is proper to refer to that portion of the second section (a), which provides that licenses shall be granted by the court, “ in such manner as is provided by existing laws.” What existing laws are here referred to ? Clearly, the existing laws in regard to wholesale licenses. I know that the opinion has prevailed in some quarters that the effect of these words is to read into the wholesale act several sections of the previous retail act. This construction is so palpably erroneous that it would be a waste of time to discuss it. There is no reference in the one act to the other. The act in force in the county of Allegheny in May, 1887, in regard to wholesale licenses, was the special or local law of April 8, 1872, P. L. 843, applicable to Allegheny county only, which provides, inter alia, that “ The treasurer of said county shall, annually, upon payment to him of the license fees, and the receiving of the bond hereinafter mentioned, grant the licenses hereinafter specified, to citizens of the United States of temperate habits and good moral character,” etc. The act of May 24, 1887, contains no repealing clause. The act of 1872 is not repealed in express terms or by necessary implication, so far as regards wholesale licenses, excepting to the extent that the one act is supplied by the other. Thus, the act of 1887 declares that wholesale licenses shall be granted by the Court of Quarter Sessions, instead of by the county treasurer; it provides for a hearing by the court of applications for such licenses; makes a different classification of venders and fixes a different rate to be paid. But it imposes no qualifications upon applicants for wholesale licenses; it does not even require that they shall be citizens of the United States, or that they shall be persons of temperate habits, or of good moral character. Where are we to look for these qualifications ? Certainly not in the retail act, which has nothing whatever to do with it, but in the existing laws in regard to wholesale licenses, to wit, the act of 18X2. There is nothing in the act of 1872, which as before observed is a local act, applicable only to the county of Allegheny, to indicate that any qualification was requisite for a wholesale dealer than those above mentioned; or, that any discretion existed in the Court of Quarter Sessions to refuse such license, except for cause, and such cause must relate to one of three things, viz.: citizenship, character, or sobriety. It follows that a citizen of the United States, of temperate habits and good character, who presents his application for a wholesale license in due form, and who has complied with the requisites of the law, has prima facie a right to such license. In the absence of anything upon the record to impeach such right, it is the duty of the court to grant it. If a remonstrance is filed setting forth that the applicant is disqualified for either of the three causes above stated, it is the duty of the court to hear the case, and if the remonstrance is sustained by evidence, to refuse a license. Such case is not reviewable here, for the reason that it would be a proper exercise of the discretion conferred upon the court by the act of May 24, 1887. But the discretion goes no further. It does not extend to an arbitrary refusal of a license. I use the word arbitrary in no offensive sense, but to indicate the refusal of a wholesale license for reasons other than those above indicated. The learned judge below has performed a thankless and most unpleasant duty, and we are satisfied he has done so without fear or favoritism. But we are compelled to differ from him in our construction of the act of assembly referred to.

An extended argument is not needed to show that the discretion conferred upon the court by the retail act of 1887, does not extend to the wholesale act. A few words upon this subject, however, may be appropriately added. As before observed, the object and leading thought in the former act was to restrain and regulate the sale of liquor; that is to say, to restrain its sale to the consumer. It was for such reason that a large discretion was conferred upon the Quarter Sessions. If we contrast the second section, above quoted, of the wholesale act, with the seventh section of the retail act, the difference between them is palpable. The said seventh section is as follows:

“The said Court of Quarter Sessions shall hear petitions from residents of the ward, borough or township, in addition to that of the applicant, in favor of [and] remonstrances against the application for such license,‘and in all cases shall refuse the same whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers or travelers, or that the applicant or applicants is or are not fit persons to whom such license should bo granted, and, upon sufficient cause being shown or proof being made to the said court that the party holding a license has violated any law of this commonwealth relating to the sale of liquors, the Court of Quarter Sessions shall, upon notice being given to the person so licensed, revoke the said license.”

We cannot incorporate or read into the wholesale act the above section of the retail act, for the reason that we are not clothed with legislative powers. Moreover, it is inapplicable to wholesale licenses. What has the court to do with the question whether a particular wholesale license is “ necessary for the accommodation of the public and entertainment of strangers or travelers ? ” In the case of a retail license the court may well inquire, indeed it is its duty to do so, whether the public accommodation in the particular ward, street or block, requires that the applicant shall be licensed. The whole theory upon which retailors are licensed, and it is the theory of the law, is that they are needed for the public accommodation, to provide places where strangers and travelers may rest, and procure needed refreshments. Hence it may very well be, as was said in Raudenbusch’s Petition, supra, that “ if a ward has one hundred public houses, where only fifty are required by the public wants, it is plain that fifty houses must be denied license, although every one of the applicants is a worthy man and keeps a respectable house, an,d although there be neither remonstrance nor objection on the score of want of fitness.” None of this reasoning applies to a wholesale license. It is not granted for the convenience of a particular neighborhood, nor for the accommodation of strangers or travelers. Nor does it matter where the place of business is located. If all the wholesale liquor houses in Pittsburgh were in a single block, it would make no difference, and would be no objection to tbeir being licensed. Tbeir business is not confined to any particular locality; on tbe contrary, it is general, and we may fairly infer from the knowledge of trade which every intelligent man possesses, that but a small portion of the sales of a wholesale house is confined to the city or place in which it is located. How then would it be possible for a judge to intelligently exercise a discretion as to the need of a wholesale house in a particular location ? The power to close up large establishments, such as breweries, distilleries, and wholesale liquor houses, when perhaps hundreds of thousands of dollars are invested therein, is too vast to be exercised by any man or any court, excepting upon the clearest grant of legislative authority. It cannot be dene upon mere implication.

We are in no doubt as to our power to revise the proceedings below upon this writ. This court possesses and exercises the powers of the King’s Bench, and it was said of them by the late Justice Sharswood, in Commissioners’ App., 57 Pa. 452: “It is beyond all question that under these extensive powers, this court is authorized to examine and review the proceedings of the Court of Quarter Sessions in any matter specially committed to it by statute, so far as to inquire and determine the extent and limits of its power and the regularity of its exercise. It is equally clear that the proper mode of asserting this jurisdiction is by bringing the record of its proceedings before us for inspection by writ of certiorari.” And it was held by the Court of Errors and Appeals of New York, in the People v. Citizens’ Gas Light Co., 39 N. Y. 81, in speaking of the writ of certiorari, that “ its office extends unquestionably to the review of all questions of jurisdiction, power, and authority of the inferior tribunals to do the acts complained of, and all questions of regularity in the proceedings; that is, all questions whether the inferior tribunal has kept within the boundaries prescribed for it by the express terms of the statute law, or by the well settled principles of the common law.”

The granting of wholesale licenses is a matter specially committed by act of assembly to the Courts of Quarter Sessions. Upon the writ of certiorari we may review their proceedings so far as to see whether they have kept within the limits of the powers thus conferred, and have exercised them in conformity with law. We are of opinion that those powers have been exceeded in this instance, and that upon the face of this record the petitioner was entitled to her license.

The order of the court below refusing it is reversed, and a procedendo awarded.

L. Harris Drug Co.’s Petition.

Joseph: Fleming & Son’s Petition.

T. D. Casey & Son’s Petition.

Opinion,

Mr. Chief Justice Paxson :

These cases are upon all fours with Pollard’s Case, just decided. We need not repeat what was there said.

The order refusing a license in each of the above cases is reversed, and a procedendo awarded.

Joseph Einstein & Co.’s Petition, et al.

These eases were all applications for a bottler’s license, under the act of May 24, 1887. As we are unable to distinguish them in principle from Pollard’s Case, just decided,

The order refusing such license is reversed in each case, and a procedendo awarded.