Schlaudecker v. Marshall

• Decision Date: 06 January 1873
• Citation: 72 Pa. 200
• Parties: Schlaudecker <I>versus</I> Marshall <I>et al.</I>
• Court: Pennsylvania Supreme Court

72 Pa. 200

Schlaudecker versus Marshall et al.

Supreme Court of Pennsylvania.

October 24, 1872.

January 6, 1873.

October 24th 1872.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Erie county: of October and November Term 1872, No. 114 J. Ross Thompson (with whom were C. P. Biddle and G. A. Allen), for plaintiff in error, referred to the above-cited Acts of Assembly; Acts of April 20th 1858; April 14th 1859, Pamph. L. 653, 2 Br. Purd. 943, pl. 15, 16; April 10th 1849, Pamph. L. 574. The words "shall" or "may" are to be construed imperatively; Attorney-General v. Lock, 3 Atk. 164; Turnpike v. Miller, 5 Johns. Ch. 101; Minor v. Bank, 1 Peters 64.

F. P. Longstreet (with whom was S. P. Longstreet), for defendants in error, referred to the same Acts of Assembly.

The opinion of the court was delivered, January 6th 1873, by AGNEW, J.

In the court below this case was a rule for a mandamus to compel the board of licensers of the city of Erie to grant a license to the plaintiff in error to keep an eating-house.

The rule was discharged, and hence this writ of error. The real question in the case is upon the nature and extent of the discretion to be exercised by the board of licensers in granting or refusing licenses for eating-houses. It arises under the Act of 10th May 1871, P. L. 728, giving to the board "the same power and authority to grant licenses in the said city of Erie as the Court of Quarter Sessions by law now has." The requirements of the application for the license are governed by the 8th section of the Act of 31st March 1856, P. L. 201. See section 2d, Act 10th 1871. But the power and authority of the board in acting on the application are to be ascertained by the state of the law as to the Court of Quarter Sessions, at the date of the Act of 1871. This involves an attentive examination of the legislation of the state for a series of years, a subject of no small difficulty, owing to the fluctuations in the legislature as the temperance or liquor interests prevailed.

The initial point of modern legislation on the subject of licenses may very properly be said to be the Act of 11th March 1834, P. L. 117, reported by the revisers of the code as the result of all the then existing laws, together with their own modifications and amendments. The discretion conferred upon the Court of Quarter Sessions by this act will be stated hereafter, when we come to the reviving Act of 14th April 1859, P. L. 653. For twenty-one years the Act of 1834 remained without material change. In 1855, the temperance reform movement prevailing in the legislature, the Act of 14th April 1855, entitled "An Act to restrain the sale of intoxicating liquors," was passed, P. L. 255. This act was nearly prohibitory in its terms, and in derision was called the "Jug Law." It lasted but a year and was overthrown by the Act of 31st March 1856, P. L. 200, entitled "An Act to regulate the sale of intoxicating liquors," an act passed through the influence of what was then known as the "Liquor League." The Act of 1856 was considerably modified by the Act of 20th April 1858, P. L. 365, and the two, with a few alterations since adopted, form the basis of the present system of licenses for the sale of intoxicating liquors.

Under the Act of 1856 the discretion of the court in granting licenses differed somewhat, but not greatly, from that given by the Act of 1834, and was regulated by the sixth section, which required the court to fix by rule or standing order a time at which applications for license should be heard, and when all persons applying or making objections might be heard by evidence, petition, remonstrance or counsel. This provision was essentially changed by the sixth section of the Act of 1858, which made the granting of the license mandatory "to citizens of the United States of temperate habits and good moral character, whenever the requirements of the laws on the subject are complied with by any such applicant, to sell the liquor aforesaid for one entire year from the date of his license: Provided, That nothing herein contained shall prohibit the court from hearing other evidence than that presented by the applicant for license: And provided further, That after hearing the evidence as aforesaid, the court, board of licensers or commissioners shall grant or refuse a license to such applicant in accordance with the evidence."

This act took away the discretion which the courts had exercised under the Acts of 1834 and 1856, and made it a matter of legal judgment on the evidence. The temperance movement rallying again effectuated the passage of the Act of 14th April 1859, P. L. 653, in these words: "That it shall be lawful for the several Courts of Quarter Sessions of this Commonwealth to hear petitions, in addition to that of the applicant, in favor of and remonstrance against the application of any person applying to either of them for a license to keep a hotel, inn or tavern, and thereupon to refuse the same, whenever, in the opinion of said court, such inn, hotel or tavern is not necessary for the accommodation of the public and entertainment of strangers and travellers. And so much of the sixth section of the Act of Assembly relating to the sale of intoxicating liquors, passed the 20th day of April, A. D. 1858, as is inconsistent herewith, is hereby repealed: Provided, That the several Courts of Quarter Sessions empowered to grant licenses shall have and exercise such discretion, and no other, in regard to the necessity of inns and taverns, as is given to said courts by the act relative to inns, approved 11th March 1834." Thus the discretion of the courts upon the necessity of inns and taverns was turned back upon the Act of 1834, the first section of which merely empowered the court to grant such licenses. The third section provided that "no court shall license any inn or tavern which shall not be necessary to accommodate the public and entertain strangers and travellers." The fifth section further enacted that "no court shall license any person to keep an inn or tavern unless from the petitions and certificate or from their own knowledge or upon evidence sought for and obtained, they shall be satisfied of the fitness of the person applying and the sufficiency of the accommodations as aforesaid." The fourth section had provided that no court shall grant a license unless upon a...