23 Pa. Super. 622 | Pa. Super. Ct. | 1903
Opinion by
Thomas F. Fanning filed his petition and bond for a retail liquor license in due legal form. To this application a remonstrance was filed, which in substance set up the following: “ That the said premises were conveyed to the applicant by deed from Charles Schaffer and wife, the deed bearing date the first day of August, 1896, and contained the following special restrictions, to which the said applicant agreed, viz: “ Under and subject to the further restriction that the said lot of ground or any part thereof, and any building thereon erected, or to be erected, shall not be used or occupied in any way whatsoever for the manufacture, sale or storage of spirituous, vinous, or malt liquor from and after the 31th day of December, A. D. 1897, for all times thereafter forever.” The premises referred to in the above quotation are the same described in the petition for a license as No. 1521 Belmont avenue, Philadelphia. Upon hearing and consideration the court below, consisting’ of Judges Beitler and Barratt, refused to license the applicant by the following order: And now, May 21, 1903, it is ordered that the prayer of the petition be refused for the reason that, as set out in the opinion this day filed, we do not think that we should license a house on a lot in the title to which there is a restriction against its use as a saloon, and this notwithstanding the fact that the grantor making the reservation was not one of the remonstrants.” The learned counsel for the petitioner states the questions involved as follows: “ 1. Whether a license court has power to refuse a license to sell liquor at
From this order of the court refusing his license application, this appeal was taken and the assignments of error substantially raise the questions above quoted from the statement of questions involved by the counsel for the petitioner. The learned court below filed an opinion giving the reasons for the refusal of the license. It has been strongly contended before this court that the court of quarter sessions cannot refuse a license to a petitioner who complies with the forms of the law for any other than statutory reasons. We have considered this argument with some care, but cannot agree with the contention that the reason assigned by the court below was not a legal reason. We are not willing to say that the owner of land may not convey it with a covenant, restriction or condition, that no spirituous, malt or brewed liquors may thereafter be sold thereon. Nor are we willing to say as matter of law that it is the duty of the court of quarter sessions to grant a license to an applicant for the retailing of intoxicating drinks upon a lot of land conveyed to him by a deed in which there is a plain covenant that said lot of ground or any part thereof or any building thereon erected or to be erected shall not be used or occupied in any way whatever for the manufacture, sale or storage of spirituous, vinous or malt liquor for all times after a date named. It does not seem to us that the applicant had any right to expect the court below to grant him a license to do that which was a violation of the plain restriction or covenant contained in the deed for the premises upon which he desired to sell the intoxicating liquors. Indeed it might be argued that the applicant failed to show the court that he had possession of any place where he could lawfully engage in the retail liquor business because an examination of his title showed that he was plainly restricted from selling intoxicating liquors in any building erected on the land referred to or any part of it. It can hardly be contended that a court
It hardly seems necessary to cite authorities in support of the validity of a restriction in the deed like the one before us. In Cowell v. Colorado Springs Co., 100 U. S. 55, Mr. Justice Field delivering the opinion of the Supreme Court of the United States said': “The deed of conveyance stated that the consideration of its execution was $250, and an agreement between the par
, The very able argument of the counsel for the petitioner has not convinced us that the court erred in refusing to license the petitioner for the reasons given, by the court in the order and opinion. It has been frequently said by our Supreme Court that no man has a right to a license; that he only has the right to present his application to the court and whether or not he shall be licensed depends upon the discretion of the court exercised in a sound and judicial manner: Raudenbusch’s Petition, 120 Pa. 328. See opinion of Mr. Justice Paxson (p. 340) where he says the petitioner assumes “that he is entitled as a matter of right to a license, upon complying with the provisions of the act of 1887, in the absence of any allegation that he is an improper person to be so licensed. This is the fallacy which underlies his case, as well as the able argument of bis learned counsel. He has no such absolute right, nor has any other man in the commonwealth. ” When the petitioner accepted the deed for the premises at No. 1521 Belmont avenue with the restrictive covenant contained therein, that covenant became the law of the transaction so far as he is concerned, and he has no right to expect the court of quarter sessions of Philadelphia county to grant him a license to engage in a business which violates the said restrictive covenant.
The assignments of error are all dismissed and the order refusing the prayer of the petitioner is affirmed and his appeal is dismissed at his costs.