McCabe's License

11 Pa. Super. 560 | Pa. Super. Ct. | 1899

Opinion bt

Rice, P. J.,

An appeal from an order transferring a liquor license from one place to another does not bring up the evidence given on the hearing. It does, however, bring up the petition, and if the reason alleged therein was insufficient to give the court jurisdiction to make the transfer, there can be no doubt of our jurisdiction to reverse and set aside the order. In such .a case there would be no room for presumption that the court transferred the license for a valid reason. The case is distinguishable from McKibbins’s License, ante, p. 421, on this ground. Nor do we entertain any doubt as to the right of the owner of the licensed premises to be heard in opposition to the proposed transfer, and, if unsuccessful in the court below, to appeal from the order. We have decided that one who was properly before the lower court as a remonstrant against the granting of a license and was heard by that tribunal might appeal from an invalid order directing a license to issue after the licensee had defaulted in payment of the license fee within the time prescribed by statute: Wacker’s License, 6 Pa. Superior Ct. 323. The appellant in the present case has an equal, if not a greater, interest in the proceeding, Umholtz’s License, 191 Pa. 177-181, and an equal right to be heard in opposition to the transfer of the license to another place. It should be observed, however, that our revisory jurisdiction is limited. It is confined to the inquiry whether the court has kept within the limits of its jurisdiction and proceeded with regularity according to law, and in the determination of that question we cannot have the aid of the evidence given on the hearing. We, therefore, cannot review the decision of the conrt below upon any question of fact. The court having granted the transfer prayed for, we must assume that all the material facts averred in the petition were established to the satisfaction of the court by competent proof, and that there were no countervailing facts to preclude the court from exercising its discretionary power to make the order complained of. See Roche’s Private Road, 10 Pa. Superior Ct. 87. The question then is, whether the facts averred in the petition were sufficient to give the court jurisdiction. The material averments are as follows: “ Your petitioner states that as his reason for his application for the- said transfer, there is a partial destruction of the building at No. 407 South 11th street, which he now occupies, in that the cellar of said premises is full of water for a great portion of the year, especially in the winter time, and that the roof leaks, all of which is detrimental to petitioner’s business and renders the premises unfit for occupancy for the purposes of a retail liquor saloon. That your petitioner has called the attention of the owner to the condition of the premises, and the board of health has declared it a nuisance, but the owner of the premises has refused to place the property in a tenantable condition.” Prior to the Act of July 15, 1897, P. L. 297, the court of quarter sessions had no jurisdiction to authorize the transfer of a liquor license from one place to another : Laib v. Hare, 163 Pa. 481. To prevent the hardships which sometimes resulted, the legislature provided that the court might transfer a license from one place to another within the same precinct, ward or borough, “in the event of a partial or complete destruction .... by fire or otherwise ” of the building occupied by the licensee. The appellant’s counsel argue, that, even admitting all the facts averred in the petition, there was no such partial “ destruction ” of the building as the legislature contemplated.

We agree with them, that the mere fact that the building has become untenantable for lack of ordinary repairs is not sufficient to give the court jurisdiction. Leakiness of the roof is a fair illustration of what would not be deemed a “ partial destruction ” of the building within the meaning of the act. But we are unable to go to the extent of holding that the word “ destruction ” must necessarily be construed as synonymous with “demolition,” “breaking up in parts,” “pulling down.” The act is to be given a reasonable construction, having regard to the purpose for which it was passed. It is not to be construed so liberally as to permit the transfer of licenses upon every trivial pretext, nor so strictly as to prevent the transfer in cases plainly within the mischief existing under the old law, the object had in view in the enactment of the new law and any recognized definition, 'etymological or popular, of the words. The meaning of words of a statute is found not so much in a strictly grammatical or etymological propriety of language as in the subject or in the occasion on which they are used and the object to be obtained: Endlich on Interpretation of Statutes, sec. 73. In the application of this familiar principle the term “ to destroy ” has on more than one occasion been construed to describe an act, which, while rendering useless for the purpose for which it was intended, did not literally demolish or annihilate the thing. A notable illustration is found in the case of United States v. Johns, 4 Dallas, 412. See also Evans’s Appeal, 58 Pa. 238, 244, and Jones v. R. R. Co., 151 Pa. 30, 46. Whether the condition of the cellar of the appellee’s house was permanent or temporary and easily remedied, was due to his negligence or to causes not within his control, and rendered the whole premises a nuisance and unfit for occupancy, were questions for the decision of the court below, and we express no opinion upon them. But if the proofs established all that was alleged in the petition, we are not prepared to say that the court had not jurisdiction, nor that there was any such plain abuse of discretion as would justify us in interfering.

The order is affirmed.