230 Pa. 571 | Pa. | 1911
Lead Opinion
Opinion by
The appellant applied to the court of quarter sessions
At the time the appellant sold spirituous liquors he held in his hands a license to sell liquors, granted to him by the same court of quarter sessions that directed the jury to convict him of selling without a license. “But,” says that court, speaking of itself in its opinion sustaining the verdict-against him, “it certainly did not grant, and was not understood by the defendant to have granted, the Brooks license authorizing the sale of spirituous liquors.” It did, however, direct a license to issue to him to sell intoxicating liquors, and such license was issued to him by its clerk in pursuance of its decree, after he had paid to the commonwealth the fee fixed by the Brooks act for the privilege of selling vinous, spirituous, malt and brewed liquors. The authority of a court of quarter sessions to grant a liquor license rests solely upon legislative enactment, and, in the absence of statutory authority to grant it, no court can direct it to issue. The only act of assembly in existence authorizing the granting of a license at the time the court below granted one to the appellant was that of May 13, 1887, popularly known as the Brooks law. This is made too plain for discussion by the first section of the act, which provides “that it shall be unlawful to keep or maintain any house, room or place, hotel, inn or tavern, where any vinous, spirituous, malt or brewed liquors, or any admixture thereof, are sold by retail, except a license therefor shall have been previously obtained as hereinafter provided.” These last three words make it unlawful to conduct any retail liquor establishment unless
In view of the unambiguous declaration of the legislature that a license to sell intoxicating liquors must be obtained in accordance with the provisions of the act of 1887, we are constrained to say that we are utterly at a loss to understand how the learned trial judge below could have held that the license issued to the appellant had not been issued under that act. And yet that is what he held in his language quoted from the opinion denying a new trial and arrest of judgment. If the license was not issued under that act, it was not issued under any, and the court undertook to give to the appellant a privilege to sell liquors without the semblance of authority to do so; the license issued to him was utterly void and he was as guilty of a violation of the statute when he sold malt or brewed liquors under it as he was when he sold whisky. The court
We are not concerned on this appeal, involving grave consequences to the appellant, with what the court below intended to do, or with what it thought it had done. Our concern must be only as to what it actually did from the standpoint of the law. If it misunderstood the statute, and did what it now says it did not intend to do, the consequences of its misunderstanding are not to fall upon the head of the appellant. If it did not intend that he should have a license to sell spirituous liquors, its only course, as guided by the law, was to refuse him a license altogether, but, authorized by the law to grant him a license to sell liquors, it gave him one which, for the reasons stated, it is idle to say was not issued under the act of 1887, and, if issued under that act, the court below concedes that the appellant had a right to sell spirituous liquors.
The first nine clauses of the fifth section of the act of 1887 set out in detail just what must appear on the face of a petition for a license to sell liquors at retail. The appellant’s petition complied literally with these requirements, and what he set forth as to the kinds of liquors he proposed to sell had no proper place in it, for the statute did not call for this. It was, therefore, mere surplusage. As the act declares what shall be sold under a license, if the court shall grant it, the petition of the appellant ought not to have been considered as anything else than one for a retail license under the act of assembly, to be refused or
It may be that the appellant did not keep faith with the court, but he was not on trial for that; and it may be that his word was broken, but it was on a promise which the court had no power to exact from him, and for this he is not to go to prison as a convict. The offense charged is selling liquor without a license, and this in the face of a decree of a competent court granting him a license to sell, under which he sold what the statute authorized him to sell as the holder of a retail license. The record, reviewed from a judicial and logical standpoint, discloses a judgment radically wrong. The judgment of the Superior Court is reversed, as is that of the court below, and the defendant is discharged from his recognizance.
Dissenting Opinion
dissenting:
I cannot agree with the conclusion of the majority of the court that either the court of quarter sessions or the Superior Court erred in its disposition of this case. The opinions of these courts clearly vindicate the correctness of the judgment which they entered. The majority opinion, I submit, finds no support in any decision in this or any other jurisdiction; on the other hand, it is at variance with well-established legal principles universally recognized in the courts of this country and England.
James Spence, the defendant below and appellant here, was indicted in the court of quarter sessions of Chester county for selling vinous, spirituous, malt or brewed liq
It is conceded by the majority of the court that the appellant was properly convicted and sentenced, unless the license produced by him on the trial authorized him to make sale of spirituous liquors. He contends, and the majority of this court sustains the contention, that the license offered in evidence conferred upon him such authority. I agree that if the license authorized the sale of such liquors, the appellant was not guilty and the sentence or judgment of the quarter sessions was erroneous. The single question, therefore, upon which this case turns, is whether at the time the appellant sold the spirituous liquor he had a license issued by the court of quarter sessions of Chester county authorizing him to make the sale.
The facts of the case are not in dispute, and are clearly and comprehensively stated in the opinion of the learned trial judges dismissing the rule for a new trial and the motion in arrest of judgment. They may be briefly summarized: The appellant presented his petition to the court of
It will be observed from the statement of the undisputed
The position of the appellant, as stated in the printed argument of his counsel, is as follows: “An examination of the petition and of the court’s order thereon shows, however, that the court undertook to limit or restrict the license to the sale of vinous, malt and brewed liquors. Not the license, but this restriction, it is respectfully submitted, was void, and the licensee had the right to sell spirituous as well as malt and brewed liquors.” This contention of the appellant is sustained by the opinion of the majority of the court and is the reason for the judgment about to be entered reversing the Superior and trial courts.
The appellant was indicted and convicted under the Act of May 13, 1887, P. L. 108, which makes it unlawful to keep or maintain any house, etc., where vinous, spirituous, malt or brewed liquors or any admixture thereof are sold without a license therefor shall have been obtained from the court of quarter sessions, and imposes a penalty for selling without such license. It logically follows that when a person is indicted for selling vinous, spirituous, malt or brewed liquors in this state and it is shown on the trial that he has made sale of such liquors, his only justification and defense is a license issued to him by the court of quarter sessions of the county in which the liquors were sold. In such case it is sufficient to warrant a conviction that the commonwealth prove the defendant made sale of the liquors; and it need not go further and prove a negative by showing that he had no license authorizing him to make the sale. The burden is then shifted to the
The effect of the license offered by the appellant as a defense to the prosecution and which he claims authorized him to make sale of spirituous liquors may be considered from three view points: (a) the license was valid as granted, authorizing the licensee to sell vinous, malt or brewed liquors, but not spirituous liquors; (b) the license was wholly invalid and did not authorize the licensee to make sale of any liquors; (c) the license was valid and authorized the defendant to sell not only vinous, malt and brewed liquors, but also spirituous liquors. The last view is the one taken by the majority of the court', and on which it reverses the conviction of the appellant.
Was the license authorizing in terms the defendant to sell vinous, malt or brewed liquors valid? If so, it would not avail the defendant in this prosecution. It did not authorize him to sell spirituous liquors and hence could be
Was the license void and therefore conferred no authority upon the licensee to sell any liquors whatever? If this view should be entertained, it is obvious that it would not aid the appellant and prevent his conviction. To declare his license void is to sustain the appellant’s conviction of the crime charged against him in the indictment.
Was the license held by the appellant authorizing him to sell vinous, malt and brewed liquors valid and sufficient to authorize him to sell spirituous liquors? This question is answered in the affirmative by the majority of the court, but I submit that such a proposition is anomalous and has neither reason nor precedent to support it. It will be observed that the application of the appellant was for an eating house license, authorizing him to sell only vinous, malt and brewed liquors; that he was certified as a proper person to have an eating house license; that he filed a bond which was not conditioned as required by law to entitle him to receive a retail liquor license under the act of 1887; and that the license granted by the court was an eating house license and did not in terms authorize the sale of spirituous liquors. The learned judges of the quarter sessions did not intend to grant a liquor license under the Brooks High License Law or Act of May 13, 1887, P. L. 108. This is an uncontroverted fact as appears by the opinion of the quarter sessions wherein it is said: “We agree with counsel for the defendant that if this court had granted the Brooks license, it could not have imposed restrictions and conditions of its own making, and could
Let us assume, however, that the court had no authority •to grant the license which the appellant received and which did not authorize him to sell spirituous liquors, and that the license was granted under the act of 1887 authorizing the licensee to sell vinous, spirituous, malt and brewed liquors, and that the court imposed a limitation or restriction thereon by omitting the word “spirituous” from the license. Of course there is and can be no question that in terms the license issued to the appellant authorized him simply to sell vinous, malt and brewed liquors, and •that the word “spirituous” was not in the application for, nor in the decree granting, the license. Could such a license avail the appellant on an indictment for selling spirituous liquors without a license? Suppose the statute,
It has been distinctly ruled that on an indictment for selling liquor without a license it is no defense that the proper court had refused to grant a license, whether the refusal was rightful or wrongful: State v. Jamison, 23 Mo. 330; Com. v. Blackington, 41 Mass. 352; State v. Downer, 21 Wis. 274; East St. Louis v. Wider, 46 Ill. 351. That one executes the bond and tenders the fee does not give him the right to sell unless he secures a license: State v. Bach, 36 Minn. 234. That a defendant presents a proper petition, tenders a bond and possesses all the qualifications of a dramshop keeper is no defense to a prosecution for selling without a license, if the court fails to grant a license: State v. Huntley, 29 Mo. App. 278; and it is unlawful for a dealer to sell any other kinds of liquors than those mentioned in the license: Gersteman v. State, 35 Tex. Crim. R. 318; Lucio v. State, 35 Tex. Crim. R. 320.
But the allegation that the license court granted to the appellant a retail license under the act of 1887 and attempted to limit or restrict his sales to vinous, malt or brewed liquors is wholly without any foundation in fact or in law. A license to sell liquors is a mere privilege and
There is another and an absolutely controlling reason why it cannot legally be held that the appellant had a license to sell spirituous liquors, and that is that he had not complied with sec. 2 of the Act of April 24, 1901, P. L. 102, which requires that before any license for the sale of liquors is issued the applicant shall give a bond conditioned for the faithful observance of the laws relating to the selling and furnishing of vinous, spirituous, malt or brewed liquors and any admixture thereof. The word “spirituous” is omitted not only from the application and the license but also from the bond of the appellant. Even if the position of the majority of the court be correct that this court has the right by construction to insert the word “spirituous” in the license granted the appellant, it has no authority to change the condition of the bond by inserting the word therein so as to make it obligatory upon the sureties. The obligation of the surety in a bond of this or any other character is contractual, and the terms of the bond or contract cannot be changed even by an order of court without the consent of the surety. It, therefore, necessarily follows that if it be conceded the court granted and issued to the appellant a license to- sell spirituous as well as vinous, malt or brewed liquors and imposed a limitation or restriction thereon, the license was absolutely void and did not authorize him to sell spiritu
I would affirm the judgment of the Superior Court.
Dissenting Opinion
dissenting:
I am not able to agree with the conclusion reached by the majority of my brethren, that the court of quarter sessions granted to this appellant a license to sell liquor under the Brooks law. As the judge of the court of quar
The opinion of the court of quarter sessions shows the existence in Chester county of a local practice by which licenses have been granted to eating houses, which did not authorize the sale of spirituous liquors, but authorized only the sale of vinous, malt or brewed liquors. It is stated that “the defendant, who has for many years conducted an eating house in West Chester, after the passage of the Act of May 13, 1887, P. L. 108, annually applied for and received a license of the character above described, to sell vinous, malt and brewed liquors, as sanctioned by the old eating house license, until a few years ago, when having greatly improved his building, he asked for the retail liquor license of the act of 1887. Feeling as did Judge Futhey, that this license should be confined to the necessary hotels of the county and concluding that his house was not needed as a hotel, because of its proximity to existing hotels, and the absence of occasion for more, the court refused to grant this license, but under another and appropriate application granted him the other form of license. Such a license he continued to apply for and receive, and such a license he held, authorizing the sale only of vinous, malt and brewed liquors, at the time he was convicted. On the trial the proof was conclusive and unquestioned, that he sold spirituous liquor, what was substantially a low grade of whisky, very much richer in alcohol than any vinous, malt or brewed liquor, such a percentage as could not be produced by fermentation, but only by distillation. The jury were instructed that the defendant had no license to sell spirituous liquor, and that if he had done so, it was their duty to
Both in the court of quarter sessions and in the Superior Court the conviction was sustained upon the theory that if the so-called eating house license issued to appellant was valid, it did not pretend to give him any authority to sell spirituous liquors. If the license was invalid, then appellant had no license at all, and of course had no right to sell alcoholic liquors. It seems to me that this theory is more reasonable and logical, than that appearing in the majority opinion, which holds that because some kind of a license was issued to appellant, it must necessarily have been a license to sell liquors under the Brooks law. This theory cannot be sound. To quote again from the trial judge, "Surely, if one should ask for, and receive a written authorization from the court to sell cider and should pay the license fee prescribed for a Brooks retail license, it would not be contended that he had been granted the latter license.”
The court of quarter sessions erred in attempting to grant the so-called eating house license, but I cannot see that its mistake in that respect affords any basis for the conclusion that its action was equivalent to the grant, under the Brooks law, of a license to an applicant it deemed entirely unfit to receive such a license. The eating house license was simply void, as the present law confers no right to issue a license permitting the sale merely of vinous, malt or brewed liquor. There was in the Act of March 31, 1856, P. L. 200, and in the Act of April 20, 1858, P. L. 365, provision for the granting of licenses for the keeping of eating houses; but these licenses were to authorize the sale of no intoxicating liquors, except" domestic wines, malt and brewed liquors. Under these acts, it seems to have been the practice of various courts of quarter sessions to grant eating house licenses up to the time of the passage óf the Act of May 13, 1887, P. L. 108, known as the Brooks high license law. As instances of such licenses, see Gilbert's License, 2 Chest. Co. Rep. 269;
There is nothing in the law to authorize the issue of the so-called eating house licenses, and the attempt to issue such an one in this case was therefore void. But why should that ineffective action be vitalized by this court, by construing it to be the grant of a license under the Brooks law, thus giving to appellant something for which he did not apply, and which the court of quarter sessions considered him unfit to receive, and which, in the exercise of its proper discretion, it said it would not grant?
I would affirm the judgment of the Superior Court.
Stewart, J., concurs in this dissent.