Kulp v. Luzerne County

20 Pa. Super. 7 | Pa. Super. Ct. | 1902

Opinion by

BeayeR, J.,

Rule No. 130 of the courts of common pleas and quarter sessions of Luzerne county is as follows : “ In compliance with the provisions of the Act of February 12, A. D. 1863, entitled ‘ An act relating to the publication of legal notices in Luzerne County,’ the Luzerne Legal Register is designated as a weekly publication in which in compliance with the said act shall be published a concise and intelligible abstract of all legal notices required to be published in cases pending in or under process issued out of any of the courts of Luzerne county: provided that the price to be charged for advertising sheriff’s sales shall be $3.00 for one piece of land and $1.50 for each additional piece belonging to the same defendant; and it is further ordered that the trial, jury, argument and certiorari lists and lists of application for liquor licenses be published in the said Luzerne Legal Register.”

A similar rule in the orphans’ court was held to be valid in McGreevy v. Kulp, 126 Pa. 97.

The Act of February 12, 1863, P. L. 28, provides: “ That, in addition to the publication required by the existing laws of this commonwealth, the several courts of the county of Luzerne may, by rule of court, designate one legal publication,” etc.

The Act of July 30, 1897, P. L. 464, provides, among other things, in the 3rd section, which refers to the filing of the petition for license: “ And shall at the same time pay said clerk $5.00 for expenses connected therewith, and said clerk shall cause to be published two times in three newspapers designated by him, one of which may be printed in the German language, a list containing the names of all such applicants, their respective residences and the place for which application is made, and the cost of publication shall not exceed the usual rates charged by such newspapers. The first publicatiozi shall not be less than fifteen nor more than twezity-five days before the time fix.ed by the court; provided the amount to be paid for such advertisement shall not in the aggregate exceed the $5.00 provided izi this section to be paid bj’- such applicant for expenses.” It is to be noted that the publication provided for is ziot limited to three newspapers.

The 4th section of the sazne act provides: “ Section 1 of an act entitled ‘ An act to restrain and regulate the sale of vinorus and spirituous, malt or brewed liquors, or any admixture thereof, by wholesale,’ approved the 9th day of June Anno Domini one thousand eight hundred and ninety-one, and all other acts or parts of acts, general or special, inconsistent herewith, be and the same are hereby repealed.”

It is argued by the appellant that, under the provisions relating to publication and repeal as above quoted, the act of 1863, supra, is, by the general repealing clause and by necessary implication, repealed. We do not so regard it. The act of 1897 is not necessarily inconsistent with the act of 1863. The provision in the latter is for notice of publication in addition to the publications then required by existing laws and can be construed to be in addition to the publication which might thereafter be required by legal enactment, and this we take it is the correct legal construction, in the absence of a clause specifically repealing the act of 1863. It was so held in Kulp v. Luzerne County, 7 Kulp, 312, so far as the act of 1887 was concerned. The act of 1897, although containing a general repealing clause as to laws inconsistent therewith, does not in legal effect repeal the act of 1863 any more than did the act of 1887. We think the two acts can stand together, without inconsistency or repugnance and should be so construed.

It is alleged in the case stated, however : “ 4. Reese Lloyd, clerk of the courts, refused to designate the Luzerne Legal Register as a newspaper for publication of liquor license list for 1901 and refused to furnish a copy of said list for said paper, neither was there any special order from the court of quarter sessions or any county official directing publication in said paper.”

“5. George B. Kulp, proprieter of said paper, obtained said liquor license list from other publications and in an issue of the Luzerne Legal Register, bearing date February 1,1901, but not issued and circulated until February 4, 1901, published the said liquor license list. Said list was also published in an issue of said Luzerne Legal Register on February 8,1901.” It is also admitted in the first paragraph of the ease stated that “ February 18, 1891 (1901), was the first day of the session of the court fixed for hearing petitions for liquor licenses in Luzerne county for the current year.” It was not necessary for the clerk of the courts to designate the Luzerne Legal Register as a newspaper for the publication of liquor licenses, as that designation is made by the rule of court above quoted. His refusal to furnish the list, however, until it was too late to publish the notice, in accordance with the provisions of the rule of court was wholly arbitrary and would doubtless have been remedied at once upon application to the court. This refusal prevented the plaintiff from giving full fifteen days’ notice of the applications for liquor licenses, as is necessary in such publications as are required by law, but it is to be remembered that the notice published in the Luzerne Legal Register is in addition to notices required by law and must be such only as may be approved by the court, which must determine what is a compliance with its own rule. That the court regarded the published notice as a substantial compliance with its rule is evident from the judgment entered for the plaintiff on the case stated. We see nothing arbitrary or unreasonable in the action of the court, as the publication doubtless practically supplied the notice contemplated by the rule and answered its requirements. Upon a consideration of all the facts contained in the case stated, we see nothing erroneous in the judgment, and it is, therefore, affirmed.