226 Pa. 56 | Pa. | 1909
Lead Opinion
Opinion by
The appellant brewing company, a domestic corporation, was refused a license on the sole ground of the applicant being an unfit corporation to be licensed. The learned judge of the quarter sessions filed an opinion in which the reason for refusing the license and the character of the weight of the evidence relied on to sustain the order of refusal are clearly stated. This opinion in its entirety is as follows, to wit: "At the hearing of this application there were presented petitions favoring the application and remonstrances against the granting of the license, by reason of the unfitness of the applicant. The petitions filed contained the names of about three thousand residents of the county and the remonstrances the names of about five thousand residents of the county entitled to the court’s consideration. Of the remonstrants about two thousand were men and three thousand, women. From an examination of these petitions and remonstrances, having due regard to the number and character of the petitioners and remonstrants, we find that the weight of the evidence rests with the remonstrants and that the unfitness of the applicant is established by the weight of the evidence. Whenever in the opinion of the court this fact should be found from the evidence, the statute under which the application is made requires that the license shall be refused.”
An examination of the opinion shows that the question of fitness was determined at the hearing upon the record made up by the application, the additional petitions favoring the license and the remonstrances filed against the granting of it. The record thus made up forms the pleadings in the case and is now properly before this court for review: Brewing Com
Again the learned judge who passed upon the application in the opinion above quoted states in substance that the
The learned Superior Court in reviewing this case suggested that the language of the opinion permits the presumption that other evidence besides the remonstrances may have been considered in determining the propriety of granting the application. We do not so read or understand the language used. No one can read the opinion and give reasonable interpretation to its meaning without concluding the learned judge who wrote it meant what he said and said what he meant. He has specifically, stated the evidence upon which he relied and has given the reason which moved him to refuse the application, and we are not at liberty to presume he intended something else. When on appeal there is a reversal the form of the order is within the power and discretion of the appellate court reviewing the case. It may be a procedendo as in Pollard’s Petition, 127 Pa. 507, and in Johnson’s License, 156 Pa. 322; or it may be a positive direction that the license be issued as in Donoghue’s License, 5 Pa. Superior Ct. 18, and Distiller’s License, 6 Pa. Superior Ct. 92; or in exceptional cases mandamus may he to compel the granting, as in Prospect Brewing Company’s Petition, 127 Pa. 523.
Order reversed and license directed to issue. Costs of appeal to this court to be paid by appellees and in the courts below to be paid as there ordered.
Dissenting Opinion
dissenting”.
This was an application by the Indian Brewing Company to the court of quarter sessions of Indiana county for a brewer’s license for the year 1909. The application was filed in November, 1908. Additional petitions were filed in support of the application and remonstrances were filed against it. The court of quarter sessions gave the parties a hearing at the time fixed by the rules of court in February, 1909, and after dué consideration of the petitions and remonstrances and other matters required to be considered by the court, the learned judge of the quarter sessions refused the license. An appeal was taken from his decision to the Superior Court and by the unanimous judgment of that court the order of the quarter sessions refusing the license was affirmed. A petition of the brewing company was then presented to Mr. Justice Elkin of this court at chambers in Indiana and he entered the following order: “And now, July 30, 1909, appeal with certiorari allowed as prayed for.” The case was argued on October 12 in this court, and by a bare majority of its members the order of the quarter sessions refusing the license, as well as the decree of the Superior Court affirming the quarter sessions, are to be reversed, and a peremptory order made by this court directing the quarter sessions to issue the license. An opinion has been prepared by Mr. Justice Elkin to be handed down expressing the views of the four members of this court who concur therein.
The application was for a brewer’s license in the town of Indiana, Indiana county, under the Act of assembly approved June 9,1891, P. L. 257, entitled, “An act to restrain and regulate the sale of vinous, spirituous, malt or brewed liquors, or any admixture thereof, by wholesale.” The petition and supplemental petitions accompanying the application were signed by 3,090 persons, purporting to be residents of Indiana county, and averred “that said Indian Brewing Company is a fit corporation to which such license should be granted.” Remonstrances were filed against the granting of the license and were signed by 5,191 persons, purporting to be residents
It will be observed that the learned quarter sessions court heard and regularly disposed of the question on which the right of the applicant to have a license depended, viz., whether the applicant was a fit person or corporation to be granted a
An appeal was taken to the Superior Court, as we have seen, and the order of the quarter sessions was affirmed by a unanimous court in an opinion filed by Henderson, J., in which he points out that the action of the quarter sessions court in refusing the license is clearly sustained by all the cases on the subject both in the Superior Court and the Supreme Court of this state. The first sentence of the opinion says: “None of the features of this case distinguish it in a material way from Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649; Reynoldsville Distilling Co.’s License, 34 Pa. Superior Ct. 269; and American Brewing Co.’s License, 161 Pa. 378.”
Before considering the opinion on which the majority of this court reverses the two lower courts, we will notice the statutes regulating applications for brewers’ licenses and some of the decisions construing those statutes. As has been noted, this application was made under the act of June 9, 1891. The sixth section of the act provides as follows: “The court of quarter sessions shall hear petitions from residents of the county, in addition to that of the applicant, in favor of and remonstrances against the application for such license, and in all cases shall refuse the same whenever in the opinion of the
Numerous decisions have been rendered by this court and the Superior Court, construing this act of assembly and the prior acts relating to the subject. They are all in accord, and there is no difficulty whatever in determining from them the proper construction of the act. In Gemas’s License, 169 Pa. 43, in which the application was made under the act of 1891, this court, speaking by Mitchell, J., said (p. 46): “the judgment of the court (of quarter sessions) 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.” It may be well to suggest here that it is the duty of the quarter sessions in passing upon a license application to consider not only the voters but also all citizens, male or female, who sign the remonstrance. This is distinctly ruled by this court in Reed’s App., 114 Pa. 452, an application for a wholesale liquor license. It is there said (p. 463): “The act does not require that either the petitioners or remonstrants should be voters; it is enough that they be citizens, whether male or female, hence, it is a mistake to pass over women, and count only voters.”
The duty of the court of quarter sessions in granting or re
The duty of the quarter sessions and its discretion in granting licenses under the act of 1891 is discussed at length by the late Mr. Justice Dean in Gross’s License, 161 Pa. 344. He says, inter alia (p. 347): “If the court has in a lawful manner performed the duty imposed upon it, it is not our business to inquire whether it has made a mistake in its conclusions of fact. Whether the same facts induce in our minds the same belief as in that of the court below, as to the character of the applicant or other material averments, is wholly immaterial; it is the discretion of the court of quarter sessions, not ours, that the law requires. ... If the record shows the decree was had after hearing at a time fixed by rule or standing order, the presumption is, the decree is judicial and not arbitrary, and this presumption is not rebutted by an argument from evidence that the court ought to have reached a different conclusion.” There is the same discretion in the court of quarter sessions in granting or refusing a wholesale license as in the case of a retail license; Nordstrom’s Petition, 127 Pa. 542, 553. The judge is not bound to set out legal reasons for his action in refusing a license; he is only bound to have them: Gross’s License, 161 Pa. 344.
In the light of the above decisions of this court and the conceded facts of the case let us examine the opinion of the majority of the court in the present case. Justice Elkin says: “There is thus presented (to this court) for determination the narrow question, Does the weight of the evidence gathered from the petitions and remonstrances furnish a legal reason for refusing the license? The only averment contained in the remonstrance is that the applicant is not a 'fit corporation’ to be licensed and upon this naked averment, more numerously signed by persons who objected to the granting of the license than by those who favored it, the learned judge found that the
The majority opinion concedes that the wholesale liquor license act of 1891 applies to corporations, and suggests that the “ question raised by this record is in what manner ought these words (fit persons) be made applicable to a corporation seeking a license. ... A corporation has no personal attributes and must be judged-by its corporate acts. In the present case the only averment in the remonstrances upon which the court based its finding is that the applicant is not a ‘fit corporation’ to be licensed. This is clearly not sufficient.” The finding of the quarter sessions is: “That the unfitness of
The parties objecting to the license were required to aver in the remonstrance simply the unfitness of the applicant, and such is the uniform practice throughout the commonwealth. The sixth section of the Act of June 9, 1891, P. L. 257, provides that the quarter sessions shall not grant the license if the applicant is not a fit person. It is wholly immaterial why he is not a fit person, and if the remonstrants on the hearing convince the court that for any reason he is unfit, then the act prohibits the granting of the license. For aught we know, the quarter sessions found that this corporation had violated many of the laws of the commonwealth regulating the sale of intoxicating liquors. Specific charges were filed to that effect by reputable members of the bar of Indiana county in behalf of the remonstrants, and we must assume that these or other illegal acts, making the applicant unfit, were established to the satisfaction of the court. As pointed out above, our decisions all hold that the judge has the right to act on facts affecting the fitness of the applicant which are within his own knowledge. He therefore had before him in considering this application the fact that he had refused this same applicant a license during the previous year, because it was shown to his satis
The order to be entered by the majority of the court is clearly erroneous. It is as follows: “Order reversed and license directed to issue.” This court assumes the functions, and proposes to exercise the powers, of the court of quarter sessions in disposing of the application for the license. It undertakes to pass upon the fitness of the corporation.when, as we have seen, it does not and cannot legally-have before it any evidence on the subject. The case is being considered here upon a writ of certiorari, which brings up simply the record, and the evidence, including the petitions and remonstrances, are no part of the record for the purpose of determining the fitness of the applicant. Notwithstanding these facts, the majority of the court enters a mandatory order on the quarter sessions to issue the license, instead of awarding a procedendo requiring that court to again hear and determine the applicant’s right to the- license. This, I submit, is manifest error and is without a single precedent in the courts of this state to support it. On the other hand, it is condemned by all our authorities.
Johnson’s License, 156 Pa. 322, was an application for a distiller’s license under the act of 1891. The license was refused by the quarter sessions without filing an opinion, and the applicant appealed to this court. The appeal was sustained,
The same mode of procedure was observed in Gemas’s License, 169 Pa. 43, which was also an application for a distiller’s license under the act of June 9, 1891. The quarter sessions, without filing an opinion, refused the application and the applicant appealed to this court. The order of the quarter sessions was reversed, this court holding that the reason assigned in the order by the quarter sessions was not a valid one. This court, however, did not direct the court below to issue the license, but entered the decree: “Judgment reversed and procedendo awarded.” By this order the application was again remanded to the quarter sessions, which had the authority to again consider and determine the right of the applicant to his license. In concluding the opinion Mr. Justice Mitchell says (p. 46): “We are of opinion therefore 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.” Whether there was “other ground” for refusing it was a matter submitted by this court for the consideration and decision of the quarter sessions.
I regard the ruling of the majority of the court as an entire departure from all the adjudicated decisions of both appellate courts of this commonwealth. It practically annuls the act of assembly, and denies the right to grant licenses by the court of quarter sessions, the only tribunal invested by the laws of the
I object to granting this license because the members of this court have no authority to usurp the functions of the quarter sessions and determine the fitness of the applicant from their own knowledge of the facts or from facts otherwise obtained; because the quarter sessions of Indiana county was compelled to refuse a similar application by this corporation the previous year on the ground that it was guilty of seven distinct offenses against the liquor laws of the commonwealth; and because 5,000 reputable citizens of Indiana county where the applicant proposes to manufacture and sell its liquors, declare the Indian Brewing Company unfit to have a license, and the correctness of their judgment is confirmed by the court of quarter sessions of the county, the only legal tribunal under the laws of the state having authority to determine the question.
I would affirm the order of the court of quarter sessions refusing the license and also the judgment of the Superior Court affirming that order.
Dissenting Opinion
dissenting:
If it certainly appeared in the opinion of the learned judge that in determining the unfitness of the applicant, he was governed only by the numbers on one side and the other of the petitioners and remonstrants, we would agree that this was a wholly erroneous way of reaching a decision and a reversal would be called for. But we think the opinion warrants a fair inference that he had regard as well to other evidence. What that evidence was, is not set out in the opinion, nor was it necessary that it should be, but that he had other evidence before him we think is clearly implied in what he says.
We would affirm the judgment of the Superior Court, and the order of the court of quarter sessions.