In re the Prospect Brewing Co.

17 A. 1090, 127 Pa. 523, 1889 Pa. LEXIS 1146

• Court: Supreme Court of Pennsylvania
• Decided: June 28, 1889
• Docket: No. 000
• 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 Philadelphia holding the license court, commanding them to show cause why they should not grant the petitioner a brewers’ license. The petition upon which the alternative writ was allowed sets forth, inter alia, that the Prospect Brewing Company is a corporation duly chartered under the laws of this state for the purpose of the brewing of all kinds of malt liquors and the sale thereof; that the capital stock of said corporation is $200,000, which has been fully paid up; that its business plant, consisting of real estate, apparatus, utensils, and other property, is of the value of $630,000; that “the annual product of the brewery of the petitioner, the said company, is very considerable, consisting of about thirty-five thousand four hundred barrels, of.which quantity about two million bottles are bottled for domestic consumption and export, the same being distributed by exportation to Canada, Mexico, Porto Rico, Rio Janeiro, Buenos Ayres, Montevideo, and through the United States, by means of agents in San Francisco, California; Savannah, Ga.; Charleston, S. C.; Charlotte, Raleigh, N. C.; Jacksonville, Fla.; Norfolk, Richmond, Ya.; Baltimore, Md.; Camden, Newark, Sea Isle, Atlantic City, N. J.; Boston, Mass.; and somewhat less than one third of the whole product is sold and consumed in the city of Philadelphia. The said company employs seventy workmen and employees, with an annual wage-list of $54,000; that for several years last past it has been licensed as a brewer, including the year 1888; that the petitioner filed its application to the Court of Quarter Sessions of the county of Philadelphia for a renewal of its license for the year beginning the first day of June, 1889, under the provisions of the act of May 24, 1887, entitled ‘ An act providing for the licensing of wholesale dealers in intoxicating liquors; ’.....that upon the seventh, eighth, and ninth days of May, 1889, a hearing was had upon the said petition, and no remonstrance or objection, so far as is known to your petitioners, or as appears by entries and records of the said court, was presented or made by any one to tbe granting of tbe said license.” The petition then proceeds to narrate at some length an inquiry which occurred in court upon the hearing as to one of petitioner’s employees having sold an article of drink called ambrosia, which appears to have been a light form of beer. We need not give this at length as it is of very little importance, and is referred to hereafter in connection with the return to the writ.

The underlying principle of this case, that is, the right of a brewer or wholesale dealer to a license, has been fully considered and decided, In re Application of Mary E. Pollard for a wholesale license. That was a certiorari to the Quarter Sessions of Allegheny county, and the opinion is now filed with this case. I do not propose to re-argue the questions there decided. I shall refer to them merely to state the points and rulings involved. We there held that in granting licenses to wholesale dealers, bottlers, and brewers under the act of May 24,1887, P. L. 194, the Court of Quarter Sessions has not the large discretion conferred upon it by the retail act of May 13, 1887, P. L. 108; that the discretion conferred by the wholesale act is a qualified, limited discretion, and is confined to the inquiry whether the applicant for a wholesale license is a citizen of the United States, of temperate habits, and of good moral character. As no remonstrance or objection appeared upon the record of that case, alleging that the petitioner was disqualified for either of the reasons above stated, we reversed the order of the court below refusing a license, as we also did a number of other like cases submitted at the same time. It scarcely needs an argument to show the propriety of this ruling. If the record does not disclose the reason for the refusal, it would be impossible to review the action of the court below, either upon a writ of certiorari or other process, no matter how illegal or even arbitrary the action of the court might be, or how vast the interests which are thus stricken down. As to such matters a Quarter Sessions judge would sit as absolute a despot as the emperor of China.

In the case in hand, the value of the brewery, with its stock, fixtures, etc., was, as before stated, $630,000. The refusal of a license leaves the plant and stock comparatively worthless. The former is of little use for any other purpose, while the latter cannot be sold without a violation of law. Under such circumstances it is but reasonable that tlie action of the court should be in such shape as to he reviewable here, and to show that the refusal of the license was the exercise of a sound judicial discretion expressly authorized by law. It follows from what lias been said that bad this case been brought here upon a writ of certiorari it would necessarily have been reversed. In this respect it differs widely from an application for a retail license, and the reason is, that in the latter instance the discretionary powers of the court are much broader; the license may be refused not only because tbe court regards the applicant as an unfit person to sell liquor, or, if fit, that his house is not needed in the particular neighborhood for the accommodation of strangers and travelers. The present ease, however, is here upon an application for a mandamus, which involves considerations not referred to in Pollard’s Case.

It is perhaps unfortunate that in cases of so much magnitude, involving very large pecuniary interests, no orderly mode of practice has been prescribed by the act of assembly or adopted by the courts. The licensing of wholesale dealers has heretofore been regarded so much as a matter of course, that but very few eases have reached this court under prior acts of assembly. In tbe meagre reports of the one or two cases which have reached us, it is difficult to gather tbe facts, and tbe Per Curiam opinions fail to show that the distinction between wholesale and retail dealers bas ever been called to om attention. We do not find anywhere any allusion to the proper mode of procedure in the matter of applications for a wholesale license. This is the first case that has come up under the act of May 24, 1887, and a careful examination of said act leads us to tbe conclusion, as we have decided in Pollard’s Case, that in the absence of any remonstrance or objection upon tbe record, it is the duty of the court to grant a wholesale license, and the objection must be limited to tbe three disqualifications already alluded to.

As a matter of practice such remonstrance or objection should be in writing and placed upon the record. In such case, the action of the court below can be reviewed here in an orderly manner. When a remonstrance is filed, it forms, with the petition, the pleadings in the case. There is then an issue of fact before the court, to be decided as in other cases upon the evidence. If the evidence sustains the remonstrance, it is the plain duty of the court to refuse license. That would Be the exercise of a lawful judicial discretion with which this court would hesitate to interfere. When the application of the petitioner came up for consideration in the court below, there was neither remonstrance nor objection upon the record against the granting of the license. There was no issue before the court. There was no disputed question of fact for it to decide, and the act of May 24, 1887, does not confer upon the Court of Quarter Sessions the powers of a roving commission to inquire as to matters not properly before the court, and in no way connected with the petitioner’s right to a brewer’s license. As there was no issue'before the court, it follows necessarily that there could have been no legal trial, and as there were no disputed questions of fact, there could have been no valid findings of fact. We might well, therefore, without more, discard the entire return of the learned judges of the Quarter Sessions to the writ of alternative mandamus. That we may not seem wanting in respect to them, I will proceed to its consideration. And, first, I will refer briefly to the principles of law which govern the return to such writs.

There is no form of pleading known to the law in which greater certainty is required than in a return to a writ of mandamus. It requires not only the greatest possible certainty; not merely certainty to a common intent, or certainty to a certain intent in general, but certainty to the greatest possible intent; or, as it is sometimes called, certainty to a certain intent in every particular: King v. Mayor, 1 Lord Raym. 559 ; Bacon’s Abr. Mandamus, 1 K.; Rex v. Liverpool, 2 Burr. 731 ; Tapping on Mandamus, 393 ; Harwood v. Marshall, 10 Md. 452 ; Reichenbach v. Ruddach, 121 Pa. 18 ; Commonwealth v. Commissioners, 37 Pa. 237 ; Rex v. Malden, 2 Salk. 431. The reason for this strictness is, that at the common law the return could not be traversed. However that may be now, in some cases, the rule is practically the same in the present instance. We all agree that we are bound by the return to the writ, and that if it discloses a sufficient ground to refuse the license we can go no further. It follows that the common law rule as to the certainty of the return must be applied.

Keeping this in view, and. also the fact that the objections to the petitioner’s application must be confined to the questions of (1) citizenship, (2) temperate habits, and (3) good moral character, I will briefly consider this return.

As preliminary the judges say:

“ Before deciding said application said court deemed it to be its duty to determine whether the applicants were citizens of the United States, of temperate habits, of good moral character, and fit persons to receive a license.”

The first three matters wer.e proper subjects of inquiry; if there was objection made upon either of these grounds, it was the plain duty of the court to hoar the evidence and decide. As to the part of the return 1 have italicized, it was a matter with which the court below had nothing to do in the case of an applicant for a wholesale license.

They have nothing to do with it because the act of May 24th confers no such power upon them. It is incorporating into the wholesale act a provision of the retail act. The key to the whole difficulty may perhaps be found in this assumption of a discretion in wholesale licenses which is not found in the law, and is applicable only to the case of retailers. The fitness of a man to have a wholesale license depends upon his possessing the three qualifications before mentioned, not upon the opinion of the court upon other matters outside of them.

It appears that at the hearing in the court below the main question was as to the manufacture and sale of a mild form of beer called ambrosia, and upon the petition for the writ of alternative mandamus, the petitioner sets out at some length the testimony that was given in regard to it, with the names of the witnesses; from which it appeared that the alcoholic strength of the said beer was from one and a quarter to one and three quarters per cent only; that Dr. Henry Leffmann was thou called as a witness by the court, who testified to having examined ambrosia chemically and corroborated the evidence of the petitioner as to its alcoholic strength. Much more was alleged in the petition to which it is unnecessary to refer. To this matter the court below makes return:

“The statement of testimony made in the petition of the relators is incomplete, inaccurate and misleading.”

This return under all the authorities is clearly insufficient.

See Reichenbach v. Ruddach, supra. In what respect was it inaccurate or misleading? Conceding that the respondents were not required to return the evidence, yet if they attempt to negative an averment in the petition by their return, it must be done with the certainty required in this form of pleading.

The return then further states :

“ The court did find from the evidence, that during the year of its license then about to expire, the said company, through its chief executive officers who had been charged with the conduct of its business, had caused to be brewed an intoxicating malt liquor for the purpose of selling the same to unlicensed dealers in the city of Philadelphia, to be by the latter again sold in this city in violation of the laws of the commonwealth; that said intoxicating malt liquor thus brewed by said company had been sold by it to numerous unlicensed dealers in the expectation that the same would be sold by them in this city in violation of law; that through its said officers said company, by false representations as to the character of said liquor, had induced divers unlicensed dealers to purchase the same from it; and that said liquor thus purchased had been sold in the city of Philadelphia by said unlicensed dealers.”

It is to be observed that this return is entirely outside of the case. It has no bearing upon either of the three qualifications required for a wholesale dealer, and at best refers to a rambling inquiry not properly before the court. The license which the company held authorized them to manufacture and sell beer to any person who was willing to buy, licensed or unlicensed, and it must not be forgotten that the particular beer referred to was ambrosia, which as appears by the averments in the petition, and not specifically contradicted in the return, contains only a little over one per cent of alcohol. The return is, moreover, vague and uncertain ; we are not told what false representations were made by the company in regard to the character of the beer, and mere adjectives are entirely out of place in a return to a writ of alternative mandamus. Nor does this portion of the return allege a violation of any law of this commonwealth. I have dwelt upon it at greater length than was necessary, for the reason that it had evidently much to do with the action of the court below.

The return then proceeds:

“ The court did find (a) that the said company had conducted its business during the year then expiring in violation of law. It did further find (6) that said company was not a fit person to receive the license applied for; and (c) that so far as it was possible for a corporation to possess any moral character, it did not possess a good moral character.”

There are three subjects referred to in this portion of the return, and for convenience I have divided them. As to the first, (a) what law has the company violated in the conduct of its business ? The return does not inform us. Instead of facts we are given a mere conclusion of law. The averment is so vague that it has no force whatever. In regard to the second branch, (5) I have already said that the fitness of the company to receive a license is not in the discretion of the court below, unless from one of the three causes of disqualification before mentioned. A return generally that the applicant is not a fit person to receive a brewers’ license, without specifying for what cause, is bad for uncertainty, and is, moreover, evasive. The return does say, however, (e) that “ so far as it was possible for a corporation to possess any moral character, it did not possess a good moral character.”

It is difficult to treat this proposition seriously. Yet it is the only matter in this return which even gives color of legality to the refusal of this license. That a corporation, an invisible, intangible thing, an artificial being created by the law, can have a character of any kind, is a novel proposition. That the learned judges below so regarded it, is evident by the qualification in their return. But the corporation has officers and a board of directors. If the court below had found upon evidence and so returned, that said officers and directors were not men of good moral character, I apprehend the return would have been sufficient. At the same time, I doubt whether any one of the learned judges of the court below would have been willing to put his name to a return that the officers and di rectors of this corporation were respectively men of bad moral character. The return that the corporation has not a good moral character is insensible.

There is nothing else in the return which requires comment; our conclusion is that it sets forth no valid reason why the petitioner should not be licensed.

The former writ was alternative. The writ of peremptory-mandamus is now awarded. It • will probably be found unnecessary to issue it.