Appeal, No. 72 | Pa. Super. Ct. | Jul 16, 1896
Opinion by
Appellants presented their petition for a bottler’s license, under the act of June 9, 1891, to which a remonstrance was filed, and the following decree made: “ And now, April 4, 1896, on motion of petitioner and after hearing in open court, it is ordered that the prayer of the petitioner be refused.”
The single specification of error is, “ the court erred in refusing the license of George W. Kerns & Brother to sell liquor at wholesale as bottlers.” We are asked to reverse the decree of the court below, and award a writ of mandamus requiring the judges to grant this license.
This power is not doubtful as shown by the many cases decided by the appellate courts of this state within the past year. In Thomas’ Appeal, 169 Pa. Ill, a wholesale liquor license case, the refusal was based upon the court’s acquaintance as an individual with the district and that the house was not necessary. This decree was affirmed. “ It is true it was the individual opinion of the judge, upon which this action was taken, but we have so many times held that such opinion may be the basis of decision that we regard the subject as settled, and do not deem it necessary to review the cases or to change them: ” Gross’s License, 161 Pa. 344" court="Pa." date_filed="1894-04-30" href="https://app.midpage.ai/document/grosss-license-6242224?utm_source=webapp" opinion_id="6242224">161 Pa. 344; Mead’s License, 161 Pa. 375" court="Pa." date_filed="1894-04-30" href="https://app.midpage.ai/document/meads-license-6242232?utm_source=webapp" opinion_id="6242232">161 Pa. 375; Am. Brewing Co. License, 161 Pa. 378" court="Pa." date_filed="1894-04-30" href="https://app.midpage.ai/document/american-brewing-companys-license-6242233?utm_source=webapp" opinion_id="6242233">161 Pa. 378; Kelminski’s Appeal, 164 Pa. 231" court="Pa." date_filed="1894-10-01" href="https://app.midpage.ai/document/kelminskis-license-6242514?utm_source=webapp" opinion_id="6242514">164 Pa. 231.
It is not necessary for the court below to file an opinion giving the reason for refusal: Toole’s Appeal, 90 Pa. 376" court="Pa." date_filed="1879-06-09" href="https://app.midpage.ai/document/tooles-appeal-6236184?utm_source=webapp" opinion_id="6236184">90 Pa. 376; Quinton’s Appeal, 169 Pa. 115" court="Pa." date_filed="1895-06-03" href="https://app.midpage.ai/document/quintons-license-6243062?utm_source=webapp" opinion_id="6243062">169 Pa. 115. But if the court put upon record a reason manifestly inadequate, and there is no other ground for refusing, it will be noticed and reversed, as in Gemas’ Appeal, 169 Pa. 43" court="Pa." date_filed="1895-05-30" href="https://app.midpage.ai/document/gemass-license-6243049?utm_source=webapp" opinion_id="6243049">169 Pa. 43; Doberneck’s Appeal, 1 Pa. Super. 99" court="Pa. Super. Ct." date_filed="1896-01-15" href="https://app.midpage.ai/document/george-l-dobernecks-appeal-6271473?utm_source=webapp" opinion_id="6271473">1 Pa. Superior Ct. 99. But where there has been a judicial hearing and a refusal for a legal reason, the reviewing court will not assume to discuss the correctness of the result reached by the court below, as was said in Gross’ Appeal, 161 Pa. 344" court="Pa." date_filed="1894-04-30" href="https://app.midpage.ai/document/grosss-license-6242224?utm_source=webapp" opinion_id="6242224">161 Pa. 344.
In a case of a brewer’s application it was said: the office of a mandamus is to require the performance of a judicial function, not to regulate the mental processes of a judge. If he refuses or neglects to hear, we may enjoin upon him the performance of that duty; but when he has heard and decided, we cannot require him, unless in extreme cases, to lay his modes of reasoning and his moral standards before us that we may reverse his
Tbe petitioners bad a judicial hearing before two judges. A remonstrance suggesting a valid objection was filed, and on the record there is nothing to warrant this court in reversing the decree entered: Collarn’s Petition, 134 Pa. 551" court="Pa." date_filed="1890-05-05" href="https://app.midpage.ai/document/in-re-collarn-6239909?utm_source=webapp" opinion_id="6239909">134 Pa. 551.
As was said in Gross’ License, 161 Pa. 344" court="Pa." date_filed="1894-04-30" href="https://app.midpage.ai/document/grosss-license-6242224?utm_source=webapp" opinion_id="6242224">161 Pa. 344, “ While, in these cases, the justices of the quarter sessions do not always set out on the record the reasons for their decrees, it is going very far to assume from that fact alone that they are made without lawful reasons. We can comprehend how a man’s conscience may condemn as wrong a law of the land; but that sort of a conscience, so tender as to withhold approval of a law, yet which voluntarily takes an oath to administer it according to its true intent and meaning, and then deliberately violates it, is beyond our comprehension. We will not assume without incontrovertible evidence of record that there is such an one.”
It is urged that as this application is for a bottler’s license, , the rules given do not apply, because, they with distillers are expressly exempted from adducing proof, that the place to be licensed is necessary for the accommodation of the public, by the fifth paragraph of section 4 of the act of June 9,1891, P. L. 257, and that fact is not to be considered in disposing of their applications, as in Gemas’ License, 169 Pa. 43. In that case the license was refused by the lower court “ as unnecessary for the accommodation of the public,” and in reversing, the Supreme Court say, “We are of opinion that the only reason assigned for a refusal of the license was not a valid reason under the statute in the case of a distiller; and unless there is other ground for refusing it, which does not appear, the license should be granted.”
And in the opinion: — “ The judgment of tire court as to the personal fitness of the applicant, involves considerations of residence, citizenship, interest in other places where liquor is made or sold, conduct in regard to previous license, etc. applying equally to all kinds of licenses asked for.”
Appellant’s argument does not cover the case. Every fact required by the act, must be determined as true before the appellant is entitled to the license; and if after a hearing the judge is satisfied, that one or more of the material averments
The decree is affirmed and appeal dismissed at the cost of appellant.