dissenting:
I am not able to agree with the conclusion reached by the majority of my brethren, that the court of quarter sessions granted to this appellant a license to sell liquor under the Brooks law. As the judge of the court of quar*589ter sessions says, in his opinion filed in dismissing the motion for a new trial, “There was no appearance even, of a purpose to grant the defendant the Brooks license. The application on which his present license issued, states on the outside or back, that it is a petition for an eating house license, and inside reads that it is a petition for a license to sell vinous, malt and brewed liquors, and it is such a license and none other, that the court undertook to grant.”
The opinion of the court of quarter sessions shows the existence in Chester county of a local practice by which licenses have been granted to eating houses, which did not authorize the sale of spirituous liquors, but authorized only the sale of vinous, malt or brewed liquors. It is stated that “the defendant, who has for many years conducted an eating house in West Chester, after the passage of the Act of May 13, 1887, P. L. 108, annually applied for and received a license of the character above described, to sell vinous, malt and brewed liquors, as sanctioned by the old eating house license, until a few years ago, when having greatly improved his building, he asked for the retail liquor license of the act of 1887. Feeling as did Judge Futhey, that this license should be confined to the necessary hotels of the county and concluding that his house was not needed as a hotel, because of its proximity to existing hotels, and the absence of occasion for more, the court refused to grant this license, but under another and appropriate application granted him the other form of license. Such a license he continued to apply for and receive, and such a license he held, authorizing the sale only of vinous, malt and brewed liquors, at the time he was convicted. On the trial the proof was conclusive and unquestioned, that he sold spirituous liquor, what was substantially a low grade of whisky, very much richer in alcohol than any vinous, malt or brewed liquor, such a percentage as could not be produced by fermentation, but only by distillation. The jury were instructed that the defendant had no license to sell spirituous liquor, and that if he had done so, it was their duty to *590convict him.” Under these instructions, appellant was convicted.
Both in the court of quarter sessions and in the Superior Court the conviction was sustained upon the theory that if the so-called eating house license issued to appellant was valid, it did not pretend to give him any authority to sell spirituous liquors. If the license was invalid, then appellant had no license at all, and of course had no right to sell alcoholic liquors. It seems to me that this theory is more reasonable and logical, than that appearing in the majority opinion, which holds that because some kind of a license was issued to appellant, it must necessarily have been a license to sell liquors under the Brooks law. This theory cannot be sound. To quote again from the trial judge, "Surely, if one should ask for, and receive a written authorization from the court to sell cider and should pay the license fee prescribed for a Brooks retail license, it would not be contended that he had been granted the latter license.”
The court of quarter sessions erred in attempting to grant the so-called eating house license, but I cannot see that its mistake in that respect affords any basis for the conclusion that its action was equivalent to the grant, under the Brooks law, of a license to an applicant it deemed entirely unfit to receive such a license. The eating house license was simply void, as the present law confers no right to issue a license permitting the sale merely of vinous, malt or brewed liquor. There was in the Act of March 31, 1856, P. L. 200, and in the Act of April 20, 1858, P. L. 365, provision for the granting of licenses for the keeping of eating houses; but these licenses were to authorize the sale of no intoxicating liquors, except" domestic wines, malt and brewed liquors. Under these acts, it seems to have been the practice of various courts of quarter sessions to grant eating house licenses up to the time of the passage óf the Act of May 13, 1887, P. L. 108, known as the Brooks high license law. As instances of such licenses, see Gilbert's License, 2 Chest. Co. Rep. 269; *591King’s Application, 2 Pa. C. C. Rep. 17; Morris’s License, 2 Pa. C. C. Rep. 79. But the act of May 13, 1887, put an end to any authority to issue such eating house licenses, by the sweeping character of the prohibition in the first section, 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.”
There is nothing in the law to authorize the issue of the so-called eating house licenses, and the attempt to issue such an one in this case was therefore void. But why should that ineffective action be vitalized by this court, by construing it to be the grant of a license under the Brooks law, thus giving to appellant something for which he did not apply, and which the court of quarter sessions considered him unfit to receive, and which, in the exercise of its proper discretion, it said it would not grant?
I would affirm the judgment of the Superior Court.
Stewart, J., concurs in this dissent.