In re Lauck

2 Pa. Super. 53 | Pa. Super. Ct. | 1896

Opinion by

Rice, P. J.,

The preceedings in this case, as shown by the record, were entirely regular in form. The only question for our consideration is whether the record shows such a palpable and gross abuse of the discretionary power vested in the court below, as would justify a reversal of its action by an appellate tribunal, exercising the limited revisory jurisdiction given by the writ of certiorari. The order by the court below reads as follows : “ And now January 28th, 1896, after a hearing, a license is refused for the reasons indicated in the foregoing opinion.” Assuming for the purposes of the present discussion that this order brought upon the record the reasons assigned by the court in its written opinion, and made them subject to review, it must also be assumed that the conclusions of fact upon which those reasons are based and which moved the discretion of the court are correct. The evidence is not before us, and could not be considered if it were, because it is not part of the record. Briefly the facts as stated in the opinion are as follows : The owner of the distillery for which the license was asked is E. P. Huntsberger. He was granted a license in 1893. When he applied for a renewal of his license in 1894, it appeared that no liquors had been manufactured on the premises during the preceding year, and license was again granted to him only after the failure to operate the distillery had been fully explained by af6 davit and assurances were given that the present application was in good faith. In 1895 he again applied for a license, but it appearing that the place had not been operated as a distillery the court refused the license, saying inter alia: “ It appears that the confidence of the court has again been misplaced and we will in consequence not again intrust him with a license. An applicant is not entitled to a license for a distillery which does not distill.” If, on such a record as this, we may look into the opinion of the court to ascertain the reasons which moved it, we must take the opinion as a whole, and this history of what had occurred in preceding years is a part of it. When the present application came on for hearing, a remonstrance signed by four hundred persons residing in the vicinity was presented to the court, in winch it was suggested and alleged, amongst other things, that the court had no guarantee that the applicant would do otherwise than the former applicant did, and simply sell liquors by wholesale as did the other proprietors, and that this application was “ simply the attempt to wholesale liquors under the guise of a distiller’s license.” The court below could not, and evidently did not assume the truth of all the matters of fact alleged in the remonstrance, nor do we assume it. We refer to the allegations solely for the purpose of showing the propriety of an investigation as to other matters beyond the citizenship and character of the applicant. No case has yet decided that under the act of 1891, any citizen of the United States of temperate habits and good moral character is entitled as a matter of right to a distiller’s license for any place that he may see fit to designate, upon filing a regular petition and bond. A proper exercise of judicial discretion might under some circumstances warrant, if it did not require, an inquiry into the suit ableness (not the necessity) of the place, for the business. Was it then an arbitrary or unreasonable exercise of discretionary power, in view of the issue raised by the remonstrance, and the manner in which the place had been conducted by the owner, and former licensee of the premises, for the court to require satisfactory proof that the place could be and would be operated as a distillery, and to refuse a license because such proof was not furnished? We think not. A distiller’s license confers the privileges of a wholesaler so far as liquor manufactured by himself is concerned. He is not limited to sales to other dealers, but may sell in quantities not less than one gallon to any one. Having regard to the expressed purpose of the license laws, there is much the same reason for regulating his business, when he sells in such quantities, as for regulating that of the wholesaler. He may sell liquor of his own manufacture, in original packages of not less than forty gallons, without being licensed by the court, but, if he desires to sell in less quantities, he comes within the regulating and restraining provisions of the license laws and must apply to the court and must set forth in his application the particular place for which license is desired. The privileges conferred by a license being so nearly like those which an ordinary dealer has under a wholesale license, the legislature has seen fit to’place it in the discretionary power of the court to determine whether he shall have them. But he obtains them on less severe terms than are imposed on the wholesaler. He may have them without proving that his place is necessary for the accommodation of the public because he is a manufacturer: Gemas’ Appeal, 169 Pa. 43; Doberneck’s Appeal, 1 Pa. Superior Ct. 99.

Hence the court ought to be satisfied that the place for which license is desired is a genuine distillery, where the applicant can and will conduct the business of a manufacturer only, and not that of a wholesaler, under cover of a distiller’s license. The averments of the petition did not preclude inquiry as to those matters, and the conduct of the place by the owner and former licensee of the premises was pertinent thereto. This was not visiting the consequences of his derelictions and breach of faith with the court upon his lessee, the present applicant, but was a legitimate reason for a more rigid inquiry into the suitableness of the place, and the bona fides of the application than under other circumstances might have been required. We do not qualify anything that was said or decided in Doberneck’s Appeal. There the reasons for refusing the license were that (1) the place was not necessary; (2) that the applicant was not a resident of the county; (3) that the owner of the premises (the brother of the applicant) while holding a license some eight years before, had been convicted of a violation of the law. We hold that these were not legal and valid reasons for refusing a brewer’s license to the applicant. Here the license was refused, not because the owner and former licensee had violated the law, but because the court was not satisfied that the place could be and would be operated as a distillery. The failure of the owner to so operate it, although holding a license from the court, was a pertinent circumstance. The two cases are radically different.

Whether we would have reached the same conclusion that the' court below did, is not the question. The discretion, including the decision of questions of fact, is not vested with us but in the court of quarter sessions.

As we have had occasion to say in other cases, it never was intended that there should be an appeal from the discretion of that court to the discretion of the Supreme Court or of this court. The question for us is whether there was a clear abuse of discretion — a refusal of the license arbitrarily, and without reason, or for a reason which is clearty not a legal reason, and which ought not to have influenced the action of the court under the circumstances of the particular case. Notwithstanding the very earnest argument of the appellant’s counsel, we are not convinced that this is such a case. The order of January 28, refusing the license, was unconditional and final. An application for a rehearing is like a motion for a new trial, and a refusal thereof is not reviewable on appeal.

The specifications of eyror are overruled and the order is affirmed at the costs of the appellant.