Rauch v. Commonwealth
| Decision Date | 12 October 1875 |
| Parties | Rauch <I>versus</I> Commonwealth. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Writs of error to the Court of Quarter Sessions of Blair county: Of May Term 1875, No. 18, 19 and 86. The three writs were argued together.
S. S. Blair (with whom was F. P. Tierney), for plaintiffs in error.—The Act of March 31st 1856, sect. 3, Pamph. L. 200, 1 Br. Purd. 176, pl. 4, authorizes the sale of beer in quantities not less than five gallons. The Act of March 27th 1866, sect. 1, Pamph. L. 332, authorizes brewers in Blair county to sell liquor of their own manufacture by the cask or barrel. To authorize imprisonment it should have been charged in the indictment that the offence charged was a second offence: 3 Whart. Crim. Law sect. 3418; Smith v. Commonwealth, 14 S. & R. 69; Reg. v. Page, 9 C. & P. 756; Plumley v. Commonwealth, 2 Metcalf 408.
A. S. Landis (with whom was J. F. Millikin, District-Attorney), for Commonwealth, defendant in error.—The Act of 1872 was of a general character, and the vote on license was a public notorious act; the court might, therefore, judicially notice them ex motû suo: 1 Greenl. Ev. sect. 4.
These three cases will be considered together.
The plaintiffs in error rest their case on the right of Frederick W. Rauch to sell beer as a licensed brewer, under the Act of 7th of March 1866, Pamph. L. 332. This defence is common to two of the indictments, and is set out in special pleas. But his right to a brewer's license was not derived from the Act of 1866. The proviso in the first section of the act only saved the right from the prohibition of the act, and thus enabled him to resort to former laws to obtain the license. Hence, the true question is whether the right to a brewer's license, under former laws, was repealed by the Local Option Act of 1872, and its supplement of 1873, Pamph. L. 1872, p. 49; Pamph. L. 1873, p. 39. This has been settled by the decision of this court in the case of the Commonwealth v. Muller, (opinion by Justice Mercur, Legal Intel., March 6th 1874, p. 78.) By the express terms of the third section of the Act of 27th of March 1872, and the seventh section of the Act of 6th of March 1873, licenses for the sale of malt as well as of other intoxicating liquors were forbidden in every county in which the law went into operation. Nor is the right to the license saved by the proviso, that the act should not be construed to repeal or affect any special law prohibiting the sale of intoxicating liquors or forbidding the granting of licenses. The saving is of special prohibitory laws, but Rauch claims his license as not prohibited at all. His claim rests not on the Act of 1866, but on the former laws providing for licenses to brewers. These former laws are repealed by the Local Option Law wherever it operates.
It is contended, however, that the Act of 1872 not being pleaded or replied the court ought not to have noticed it. But the court having noticed it, the real question is whether it committed error in so doing? The court having acted under the law, clearly it acted according to law, and it cannot be error when a court acts according to law. But I have no doubt the court was right in taking notice of it. The Act of 1872 is a general law, applicable to the whole state; the election under it is to be governed by the general election laws; the result is to be duly certified and returned to the clerk of the Court of Quarter Sessions; the certificate must be laid before the judges of the Court of Quarter Sessions at the first meeting of the court after the election, and filed of record, and the judges are then to be governed by the result of the vote upon the question of granting licenses, and must, therefore, take judicial cognisance of the right to have a license. Thus, by the very terms of the law, the court is bound to know judicially whether the treasurer could grant a valid brewers' license after the result of the vote had been judicially ascertained. Besides, on general principles, a court will take judicial notice of many things which are public in their effects or relations, as seen in Mr. Greenleaf's Treatise on Evidence, § 4, vol. 1. "In fine (says he), courts will take notice of whatever ought to be generally...
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