70 A.2d 708 | Pa. Super. Ct. | 1949
Argued November 21, 1949. The Liquor Control Board refused to renew Walter H. Whitford's restaurant liquor license, and he appealed to the court below which, first, dismissed his appeal but, upon reconsideration, reversed the board and directed it to renew the license. The board brought the case here.
The facts have been stipulated. In May 1947 Whitford requested the board to furnish information "relative to the quota and present number of beer and liquor licensed establishments of the boroughs of Chinchilla, Clark Summit, and Dalton all of which are situated in Lackawanna County." The board advised him that the quota for Clark Summit was filled but that there were vacancies in "both Dalton Borough and Abington Township (in which the town of Chinchilla is located)." Whitford applied for and the board issued a license for the *50 year beginning August 1, 1948 for premises which he described as located in Abington Township. Both he and the board were mistaken. Chinchilla is not a borough and it is located inSouth Abington Township, not Abington Township. The board discovered the mistake when the treasurer of Abington Township returned the license fee which the law required the board to remit to the township in which the licensed place is located and informed the board that Whitford's place was in South Abington Township. The number of licenses in South Abington Township exceeded the quota at the time Whitford's license was issued, and the board refused to renew his license in 1949.
The Quota Law of June 24, 1939, P. L. 806, § 2,
The learned court below found justification for its decision in the Act of May 20, 1949, P. L. 1551, § 2, which in part provides: "In considering the renewal of a license, the board shall not refuse any such renewal on the basis of the proprietyof the original issuance or any *51 prior renewal of such license." (Emphasis added.) The court suggested: "Perhaps a rather fine point of distinction may be drawn between `propriety' and `illegality' as it affects the initial issue of this license", and concluded "that the language of the Act includes the situation presented by the case at Bar." That is to say, it found that "propriety" and "legality" were virtually synonymous, and that the legislative prohibition against reconsideration of propriety includes a command to ignore illegality.
There is a world of difference between propriety andlegality. It is scarcely credible that the legislature would use "propriety" when it meant "legality", for the terms are practically antithetical. Certainly the 1947 legislature knew the difference, and employed the two words in their proper sense in the same sentence. The Borough Code of July 10, 1947, P. L. 1621, § 23, 53 P. S. § 12900, provides: "In cases of ordinances effecting annexation of territory . . . the court shall have jurisdiction to review the propriety as well as thelegality of the ordinance." (Emphasis added.) See Irwin BoroughAnnexation Case (No. 1),
So that the boundaries of this decision may be clearly marked, we emphasize the statement that the board may correctits own errors of law. This decision does not reach the question which apparently interested and influenced the court below. We disclaim any intention of deciding the applicability of the quoted provision of the Act of 1949 to club liquor licenses issued by the board in response to orders of courts in jurisdictions where (before Goodwill Fire Co. Liquor LicenseCase,
Appellee's remaining contentions may be almost summarily dismissed. Res judicata does not generally apply to the orders of administrative agencies, Perkasie Sewer Co. v. Pa. P. U. C.,
Order reversed at appellee's costs. *53