Foreman's License

20 Pa. Super. 98 | Pa. Super. Ct. | 1902

Pee Curiam,

The proceedings in this case in the court below are not to be commended for formality. Greater attention should be given to that. We think, however, that the order of which the appellant complains may fairly be interpreted as a definite refusal of the license. If it is not, it is not a final order, and no appeal lies. The presumption from the record is, that the petitioner was accorded a full hearing, that the court gave due consideration to the evidence and had due regard to the number and character of the petitioners for and against the application, and that the judge who concluded that the license should not be granted was influenced by a legal reason. As to the presumptions on appeal in such proceedings, we refer to several decisions of this court reported in Quinn’s License, 11 Pa. Superior Ct. 554, et seq., and the cases therein cited. Where the court consists of two judges and both sit at the hearing, the application must necessarily fail if they cannot agree as to the necessity for the license or as to any other essential. It is not within our province to decide who was right. The burden was on the applicant to convince the court, as it was constituted, of the necessity for the license and of his qualifications, and having failed in this, the decision is as conclusive, so far as his right to a license is concerned, as if the judges had agreed. Unless the court saw fit in its discretion to order a rehearing, the decision, like the Scotch verdict “ not proven,” was an end of the proceeding. No statute and no rule of the common law required the judge to break the tie by retiring from the bench, or required the court to order a rehearing before an outside judge. Nor can we say that there was any abuse of discretion in not pursuing either of these courses, especially in a matter where the judges may take into consideration their personal knowledge of the applicant and of the necessities of the community. See Kelminski’s License, 164 Pa. 281, and cases therein cited.

All the assignments of error are overruled and the order is affirmed.