Baker v. Kirschnek

• Decision Date: 07 January 1935
• Docket Number: 343
• Citation: 317 Pa. 225,176 A. 489
• Parties: Baker et al., Appellants, v. Kirschnek et al
• Court: Pennsylvania Supreme Court

176 A. 489

317 Pa. 225

Baker et al., Appellants, v. Kirschnek et al

No. 343

Supreme Court of Pennsylvania

January 7, 1935

Argued November 27, 1934 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal, No. 343, Jan. T., 1934, by plaintiffs, from decree of C.P. Delaware Co., Dec. T., 1933, No. 423 (the appeal was taken to the Superior Court as of Oct. T., 1934, No. 333, and certified by that court to the Supreme Court), in case of Warren A. Baker et al. v. John Kirschnek et al. Decree affirmed.

Bill in equity.

Preliminary objections sustained, and order entered dismissing bill for failure to amend.

The facts are stated in the opinion of the lower court, FRONEFIELD, P.J., as follows:

It was said by Justice MITCHELL in Com. v. Moir, 199 Pa. 534, that "Municipal corporations are agents of the State, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed and the extent of their powers determined by the legislature and subject to change, repeal or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers or even their corporate existence. This is the universal rule of constitutional law and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania."

The right of the Borough of Media to retain in its charter that, "It shall not be lawful for any person to sell vinous, spirituous or other intoxicating liquor within its limits," is now being questioned, by the legislative Act of November 29, 1933, No. 4, by which act the Commonwealth claims the right to maintain and operate through its Liquor Control Board, a Pennsylvania liquor store within the limits of said borough.

To undertake to prevent establishing and operating such a store, six residents and taxpayers of said borough filed their bill in equity, against the Liquor Control Board, the owner of the property proposed to be leased by the board, and against the secretary of the department of property and supplies of the Commonwealth of Pennsylvania, averring that the plaintiffs are residents and taxpayers in the Borough of Media; that the borough was incorporated by a local or special act of assembly of this Commonwealth approved March 11, 1850, P.L. 1851, page 778, entitled "An act to incorporate the Borough of Media in the County of Delaware . . ."; that section 34 of said act provides that "It shall not be lawful for any person or persons to vend or sell vinous, spirituous or other intoxicating liquors within the limits of said borough except for medicinal purposes and for use in the arts"; that John Kirschnek, one of the defendants, is the owner of a brick building and lot of land situate on the southerly side of State Street, and known as 210 West State Street; that Kirschnek has granted to the defendant John L. Hanna, who is secretary of the department of property and supplies in this Commonwealth, an option to lease within thirty days the said premises for one year with an option for an additional term for the use of the Pennsylvania Liquor Control Board for the establishment and operation of a Pennsylvania Liquor Store for the sale of alcoholic beverages pursuant to Act No. 4 of said Commonwealth approved November 29, 1933; that the lease has not been executed; that the alcoholic beverages to be sold by the said Act No. 4 are vinous, spirituous and other intoxicating liquors, the vending of which within said borough is prohibited by said section 34 of the said special act; that defendants claim the right to sell by virtue of the said Act No. 4; that the said Act No. 4 does not repeal section 34 of the Act of March 11, 1850, and in that respect is unconstitutional because the notice of repeal is not expressed in the title; that it is an attempt to amend a local or special law and that the sale of such liquor on said premises will be a menace to the morals, health, happiness and safety of the residents and taxpayers of said borough and to the persons visiting therein, to transact business, and to attend the courts of the county, and will require an increase in police protection and impose burdens upon the taxpayers of said borough, and that the other defendants comprise the Pennsylvania Liquor Control Board.

The bill prays for an injunction restraining the defendants from entering into a lease for said premises for the sale of alcoholic beverages; from establishing on said premises a liquor store and from selling upon said premises alcoholic beverages and to declare Act No. 4 to be unconstitutional in so far as it is intended to repeal said section 34 of the act approved March 11, 1850.

To this bill the defendants filed preliminary objections averring that under Act No. 4 approved November 29, 1933, liquor may be sold on the premises by the Commonwealth acting through the Liquor Control Board. The Commonwealth of Pennsylvania is not a person within the meaning of section 34 of the Act of 1850; that section 802 of the Act of 1933 expressly repeals all acts, including local and special acts, inconsistent with Act No. 4: the Act of 1850 is subject to alteration, amendment or repeal by the General Assembly and Act No. 4 expressly gives notice without exception that it authorizes the operation, etc., of state stores for the sale of alcoholic beverages not for consumption on the premises.

The questions for consideration are:

1. Is the Commonwealth a person within the meaning of the Act of 1850?

2. Is the repeal clause of the Act of 1933 unconstitutional because of its failure to express in the title of the act the subject of repeal and the attempt to amend a local or special law?

The special act incorporating the Borough of Media provides, "It shall not be lawful for any person or persons to vend or sell vinous, spirituous, or other intoxicating liquors within the limits of said borough, except for medical purposes and for the use in the arts; and it shall not be lawful for the court of quarter sessions to grant any license or licenses therefor to any inn or tavern within said borough.

"If any person or persons shall within said borough vend or sell, or cause to be vended or sold, any vinous, spirituous or other intoxicating liquors to any persons (except as provided for in this section), such person or persons so vending or selling shall be liable to indictment, and on conviction thereof shall forfeit and pay for every such offense a sum not less than twenty nor more than one hundred dollars, at the discretion of the court."

The act approved the 29th of November, 1933, is "An act to regulate and restrain the sale, importation and use of certain alcoholic beverages; conferring powers and imposing duties upon the Pennsylvania Liquor Control Board, the department of public instruction, other officers of the state government, courts and district attorneys; authorizing the establishment and operation of state stores for the sale of such beverages not for consumption on the premises, and the granting of licenses, subject to local option, to sell such beverages for consumption on the premises; forbidding importation or bringing of such beverages into the State except as herein provided; prohibiting certain sales or practices in connection with, and transactions in such beverages by licensees and others; making disposition of the receipts from state stores and of license fees; and imposing penalties."

The act itself is deemed to be an exercise of the police power for the protection of the public welfare, health, peace and morals of the people and to prohibit forever the open saloon. The purpose of the act, except as otherwise expressly provided, is to prohibit transactions in liquor which shall take place in the Commonwealth except by and under the control of the Liquor Control Board. The Liquor Control Board has the power and duty to buy, import, possess for sale and sell liquor, under the provisions of the act: to determine the municipalities and the location therein, within which stores for the sale of liquor shall be established: to grant and issue liquor licenses: to lease and equip buildings acquired; to define the powers of the employees and fix their salary; to determine the nature, form and capacity of liquor containers and to do all things necessary to carry out the provisions of the act. The board may make such regulations as are necessary to carry out the provisions of the act and for the equipment and management of the stores, etc.: the duties of the employees; the purchase of liquors; the classes and variety of the liquor to be sold: issuing of price lists; sealing and labeling the liquors; issuing of licenses and the depositing of the receipts; the board shall establish and operate the stores: select the officers and employees. The act also provides when sales may be made at the liquor stores: the stock to be kept: to whom the stores may sell and in what kind of a package: and under what condition may liquors be sold.

The act then provides that the act approved the 27th day of March, 1923 (P.L. 34), entitled, etc., "and all other acts and parts of acts, including special or local acts inconsistent herewith are hereby repealed."

1. The defendants contend that the Commonwealth may sell liquor under the special act because it is not a "person" within the meaning of the Act of 1850.

"In the construction of statutes, the terms or language thereof are to be taken and understood according to their ordinary and usual signification, as they are generally understood among mankind, unless it should appear from the context and other parts of the statute, to have been intended otherwise and if so, the intention of the legislature, whatever it may be, ought to prevail." ...