Sparrow's Petition

• Decision Date: 03 November 1890
• Citation: 138 Pa. 116
• Parties: PETITION OF GEORGE E. SPARROW.
• Court: Pennsylvania Supreme Court

138 Pa. 116

PETITION OF GEORGE E. SPARROW.

Supreme Court of Pennsylvania.

Argued October 14, 1890.

Decided November 3, 1890.

Before PAXSON, C. J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL, JJ.

FOR A MANDAMUS TO THE COURT OF QUARTER SESSIONS OF MERCER COUNTY.

No. 100 October Term 1890, Sup. Ct.

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Mr. William Henry Lex (with him Mr. A. F. Henlein, Mr. E. P. Gillespie and Mr. A. J. Gillespie), for the petitioner:

1. In attempting to decide as to the necessity of sales of liquors, the Court of Quarter Sessions exceeded its powers and failed to exercise the discretion vested in it by the act of assembly. The interpretation which it put upon § 7, act of May 13, 1887, P. L. 108, seems to be based upon the idea that the statute has in view only the regulating and restraining of the sales of intoxicating liquors, and has no purpose affecting the right of any one to keep a house for the entertainment of the public; that is, that the act of 1887 is a step in advance of all previous retail license laws, and that such a license is not necessarily connected with the keeping of a hotel or an eating house. Such a construction of the law is not tenable. "The whole theory upon which retailers are licensed, and it is the theory of the law, is that they are needed for the public accommodation, to provide places where strangers and travelers may rest and procure needed refreshment:" Pollard's Petition, 127 Pa. 507.

2. The provisions of § 7 of the act of 1887, are copied almost verbatim from § 1, act of March 22, 1867, P. L. 40, as will appear by a comparison of the two acts. The act of 1867 has been clearly construed by this court, in Schlaudecker v. Marshall, 72 Pa. 200, as requiring the license court to ascertain, inter alia, the necessity of the applicant's house for the accommodation of the public, as a hotel or as an eating house. Under that ruling the application should have been granted in this case, upon the facts found by the court. The dictum of this court in Reed's App., 114 Pa. 452, does not, and was not intended to overrule Schlaudecker v. Marshall, supra. In the Reed case, the application was for a wholesale license, in which there is no actual distinction between the necessity of the license and the necessity of the place. The question raised here was not considered, and it is not possible that a well-considered case like Schlaudecker v. Marshall, would be reversed or modified by a dictum in a per curiam decision.

3. The act of May 13, 1887, was not intended to abolish the sale of liquors, but merely to curb and license the same. In passing a law to restrain and regulate such sales, the legislature has decided the question of their necessity, for the legislators would not have stultified themselves by passing a law to license sales which are unnecessary. It is absurd to say that sales might be necessary in some places and not in others, for whatever is required to accommodate the public and entertain strangers and travelers in one place, is equally necessary in all others. If a hotel is required for that purpose, the question whether or not the citizens of the district in which it happens to be situated, think, as a matter of morality or expediency, that the sale of liquors is unnecessary, is beside the case, for the legislature has already determined that question in passing the law. The interpretation which has been put upon the act in this case, makes it a local option law, broader than the local option act of March 27, 1872, P. L. 49, since it permits the citizens of the district to determine what particular houses shall have license. This the legislature never intended.

OPINION, Mr. CHIEF JUSTICE PAXSON:

This was a writ of alternative mandamus directed to the honorable president judge of the Court of Quarter Sessions of Mercer county, requiring him to show cause why he should not grant a license to sell liquor at retail to George E. Sparrow, the petitioner. To the alternative writ, the learned judge makes a very full return, setting forth, inter alia:

(a) "That the said applicant is a citizen of the United States and of this commonwealth, of temperate habits and of good moral character.

(b) "That the National Hotel for which said license was prayed, was then and still is a good hotel and necessary for the accommodation of the public and the entertainment of strangers and travelers.

(c) "That the borough of Greenville, where the said hotel is located, has a population of nearly four thousand persons; and there was then and is now no licensed house in said borough, or within twelve miles of it.

(d) "That remonstrances were filed against said application, wherein it was alleged that said license was not a matter of public necessity; that said license was not necessary for the accommodation of the public and the entertainment of strangers and travelers; and that the granting of said license would be detrimental to the public good and an injury instead of a benefit to that community.

(e) "That these remonstrances were signed by eight hundred and seventy citizens of said borough of Greenville, of whom two hundred and seventeen were males, and six hundred fifty-three were females, and all of whom were above the age of twenty-one years.

(f) "That additional petitions, asking that said license be granted, were likewise filed, wherein it was alleged that such license was necessary for the accommodation of the public, and the entertainment of strangers and travelers, and that the applicant was a fit person to whom to grant such license. That said additional petitions were signed by five hundred and ninety-two citizens of the said borough, of whom four hundred and seventy-one were...