Commonwealth v. Spence

Opinion by

Mb. Justice Bbown,

The appellant applied to the court of quarter sessions *572of Chester county for a license to sell liquors. His petition was for a license “to sell vinous, malt and brewed liquors by retail,” and it was granted as prayed for. During the year for which it was issued he sold spirituous liquors, and, having been indicted for selling without a license in violation of the Act of May 13, 1887, P. L. 108, was convicted and sentenced to pay a fine and undergo imprisonment. On appeal to the Superior Court, his conviction was sustained: Com. v. Spence, 43 Pa. Superior Ct. 7.

At the time the appellant sold spirituous liquors he held in his hands a license to sell liquors, granted to him by the same court of quarter sessions that directed the jury to convict him of selling without a license. “But,” says that court, speaking of itself in its opinion sustaining the verdict-against him, “it certainly did not grant, and was not understood by the defendant to have granted, the Brooks license authorizing the sale of spirituous liquors.” It did, however, direct a license to issue to him to sell intoxicating liquors, and such license was issued to him by its clerk in pursuance of its decree, after he had paid to the commonwealth the fee fixed by the Brooks act for the privilege of selling vinous, spirituous, malt and brewed liquors. The authority of a court of quarter sessions to grant a liquor license rests solely upon legislative enactment, and, in the absence of statutory authority to grant it, no court can direct it to issue. The only act of assembly in existence authorizing the granting of a license at the time the court below granted one to the appellant was that of May 13, 1887, popularly known as the Brooks law. This is made too plain for discussion by the first section of the act, which provides “that it shall be unlawful to keep or maintain any house, room or place, hotel, inn or tavern, where any vinous, spirituous, malt or brewed liquors, or any admixture thereof, are sold by retail, except a license therefor shall have been previously obtained as hereinafter provided.” These last three words make it unlawful to conduct any retail liquor establishment unless *573a license is first obtained under the act of 1887, thereby excluding and virtually repealing all prior methods of granting licenses. The eighth section provides that all persons licensed to sell at retail any vinous, spirituous, malt or brewed liquors, or any admixture thereof, in any house, room or place, hotel, inn or tavern, shall be classified for the purpose of fixing the license fee to be paid by a retailer, whose privilege, no matter in which class he may be, is to sell spirituous as well as vinous, malt and brewed liquors. This change in the law was at once generally recognized by the judges of the courts of quarter sessions throughout the state, and, so far as we are informed, the attempt to grant licenses other than as authorized by the act of 1887 has long since ceased, except in one or two counties. The county of Chester is one of these, and the judges of its court of quarter sessions seem to recognize the absence of any power under the present statute to grant eating house licenses, but make excuse for granting them that they but followed a custom established by a former member of the court. But where did he get any authority to grant such a license? It was not his province, but a purely legislative function, to determine what kind of a license may be issued for the sale of liquors.

In view of the unambiguous declaration of the legislature that a license to sell intoxicating liquors must be obtained in accordance with the provisions of the act of 1887, we are constrained to say that we are utterly at a loss to understand how the learned trial judge below could have held that the license issued to the appellant had not been issued under that act. And yet that is what he held in his language quoted from the opinion denying a new trial and arrest of judgment. If the license was not issued under that act, it was not issued under any, and the court undertook to give to the appellant a privilege to sell liquors without the semblance of authority to do so; the license issued to him was utterly void and he was as guilty of a violation of the statute when he sold malt or brewed liquors under it as he was when he sold whisky. The court *574surely never could have intended this, but it is the position into which the commonwealth is driven in asking that the judgment be affirmed. The appellant either had or had not a license. If he had one, it could have been issued to him only under the act of 1887. This certainly ought not to be questioned, and the court below concedes that if it was issued under that act, his right under it was to •sell spirituous liquors. This unavoidable concession is found in the following words in the opinion of the court •refusing a new trial: “We agree with counsel for defendant that if this court had granted the Brooks license, it could not have imposed restrictions and conditions of its own making, could not have denied the right given by it, to sell spirituous liquors. We also acquiesce in the proposition that if it appeared that the court had intended to grant the Brooks license, the fact that its decree or order, following the petition as it does, omits the word 'spirituous’ would not prejudice the defendant, for the extent of ■privilege granted would be controlled by the law under which the decree was made,' and with which it would, in such case, have been intended to accord.” A direct authority in support of this manifestly correct view is Bres-lin’s Case, 32 N. Y. 210. In issuing a license in that case the board of excise undertook to prohibit the licensee from -selling to his guests intoxicating liquors to be used with their meals on Sunday. The statute gave him the right to so sell, and,- in deciding that the restriction which the board undertook to place upon the license issued by it was void, the court said: “A critical examination, assisted by the deliberate and mature consideration and comparison of the act of 1857 (chap. 628) and the several amendments thereof, suggested by the argument at the General Term, demonstrated that the power of the board of excise is limited to the granting or refusing of licenses. If the license be granted, the statutes regulate the rights acquired by it, the restrictions to be observed and the punishment for each violation of its provisions: It cannot, therefore, either enlarge or diminish, these rights and obli*575gations, or interfere with them in any way. The officers composing it cannot insert in the license a limitation, restriction or condition which is repugnant to the statute; but if they do so, it is void, and hence the clause in the relators’ license absolutely prohibiting the sale of liquor upon certain days named in it, is, as the result of our construction and interpretation of the statute, unauthorized and nugatory.” And so here, the power of the court below was limited to granting or refusing the license, and, having granted it, the restriction placed upon the holder of it as to the kinds of liquors he could sell under it was “unauthorized and nugatory.”

We are not concerned on this appeal, involving grave consequences to the appellant, with what the court below intended to do, or with what it thought it had done. Our concern must be only as to what it actually did from the standpoint of the law. If it misunderstood the statute, and did what it now says it did not intend to do, the consequences of its misunderstanding are not to fall upon the head of the appellant. If it did not intend that he should have a license to sell spirituous liquors, its only course, as guided by the law, was to refuse him a license altogether, but, authorized by the law to grant him a license to sell liquors, it gave him one which, for the reasons stated, it is idle to say was not issued under the act of 1887, and, if issued under that act, the court below concedes that the appellant had a right to sell spirituous liquors.

The first nine clauses of the fifth section of the act of 1887 set out in detail just what must appear on the face of a petition for a license to sell liquors at retail. The appellant’s petition complied literally with these requirements, and what he set forth as to the kinds of liquors he proposed to sell had no proper place in it, for the statute did not call for this. It was, therefore, mere surplusage. As the act declares what shall be sold under a license, if the court shall grant it, the petition of the appellant ought not to have been considered as anything else than one for a retail license under the act of assembly, to be refused or *576granted by the court with such restrictions only upon the right to sell as are fixed by the act. Every jurisdictional averment required by it appeared upon the face of the petition. In this connection it may be proper to note that the court below seems to attach some importance to the fact that the petition was indorsed as one for “an eating house license.” This indorsement was no part of the petition, for a rule governing all pleadings and court proceedings is that captions and indorsements are no parts of the paper: Jackson et al. v. Ashton, 8 Peters, 148; In re Gor-man, 15 Am. Bank. Rep. 587.

It may be that the appellant did not keep faith with the court, but he was not on trial for that; and it may be that his word was broken, but it was on a promise which the court had no power to exact from him, and for this he is not to go to prison as a convict. The offense charged is selling liquor without a license, and this in the face of a decree of a competent court granting him a license to sell, under which he sold what the statute authorized him to sell as the holder of a retail license. The record, reviewed from a judicial and logical standpoint, discloses a judgment radically wrong. The judgment of the Superior Court is reversed, as is that of the court below, and the defendant is discharged from his recognizance.