Petition of Sparrow

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. (5) “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 communitju (e) “ That these remonstrances were signed by eight hundred and seventy citizens of said borough of Greenville, of [123] 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 males and one hundred and twenty-one females, and all of whom were above the age of twenty-one years. (g~) “ That, thereupon, your respondent, representing the Court of Quarter Sessions of the Peace, in and for the county of Mercer, having due regard to the number and character of the petitioners for and against such application, considered that the clear preponderance was in favor of the remonstrants and against the petitioners ; and, therefore, determining that the license prayed for was not necessary for the accommodation of the public and entertainment of strangers or travelers, refused to grant the same. Qi) “ The respondent respectfully states that he is of opinion that, notwithstanding all the facts favorable to complainant’s application above set forth, the preponderance of the remonstrants against, over the petitioners for said license, was of itself a sufficient ground for concluding that the same was not a matter of public necessity, and therefore a just and lawful ground for refusing to grant it; and that this opinion is based upon our acts of assembly as interpreted by your honorable Court.” It would have been sufficient for the learned judge below to have returned that he had considered the petitions and the remonstrances, and that, in the exercise of his discretion, he had refused the license. His return is very full, however, and he has placed upon the record all the facts bearing upon this application. It presents a case differing in many respects from any we have had before us, and we may assume that he made such return in order to enable us to apply the law to the peculiar facts of the case. [124] We have decided repeatedly, in language too plain to be misunderstood, that the granting of a license to sell liquor by retail rests in the sound discretion of the court below. In Reed’s App., 114 Pa. 452, we said: “ The action of the court in granting the license complained of, is something that we cannot review, that being a matter of discretion, though we are satisfied that there was a misapprehension of the intent of the act of 22d March, 1867.” In the late case of Rauden-busch’s Petition, 120 Pa. 328, in alluding to this discretion we said: “ It has been exercised by that court (Quarter Sessions),, almost time out of mind, and the power has again and again been affirmed by this court. This discretion, however, is a legal discretion, to be exercised wisely and not arbitrarily. A judge who refuses all'applications for license, unless for cause shown, errs as widely as the judge who grants all applications. In either case, it is not the exercise of judicial discretion, but of arbitrary power. The law of the land has decided that licenses shall be granted to some extent, and has imposed the duty upon the court of ascertaining the instances in which the license shall be granted. In order to perform this duty properly, the act of assembly has provided means by which the conscience of the court may be informed as to the facts; it may hear petitions, remonstrances, or witnesses, and we have no doubt the court, may, in some instances, act of its own knowledge.” ■ In Schlaudecker v. Marshall,.72 Pa. 200, Mr. Justice Ag-NEW, in referring to the same subject, said: “Whether any or all licenses should be granted, is a legislative, not a judicial question. Courts sit to administer the law fairly, as it is given to them, and not to make or repeal it. The law of the land has determined that licenses shall exist, and has imposed upon the court the duty of ascertaining the proper instances in which the license shall be granted, and therefore has given it to the court to decide upon each case' as it arises in due course of law. The act of deciding is judicial, and not arbitrary or wilful. The discretion vested in the court is, therefore, a sound judicial discretion; and, to be a rightful judgment, it must be exercised in the particular case and upon the facts and circumstances before the court, and after they have been heard and duly considered: in other words, to be exercised upon the merits of each case, according to the rule [125] given by tbe act of assembly. To say that I will grant no license to any one, or that I will grant it to every one, is not to decide judicially on the merits of the case, but to determine beforehand without a hearing, or else to disregard what has been heard,- it is to be determined not according to law, but outside of law, and it is not a legal judgment, but the exercise of an arbitrary will.” I have given these copious extracts from tbe opinions of this court to emphasize the fact that the law not only gives to the judges of the Court of Quarter Sessions the discretion of granting or refusing licenses, but also requires such discretion to be exercised in a sound judicial manner, and also casts upon them the responsibility. That responsibility they cannot evade by throwing it upon the remonstrants, or upon this court. To refuse a license, because, in the mind of the judge, there is a belief that licenses should not be granted at all as a matter of policy, is to make law, not to administer it. The judge to whom an application is made may inform his conscience in the manner before pointed out. He may hear remonstrances, and it is his duty to give them due weight; but, after all, the responsibility rests with him, and he must exercise his own judgment and discretion in the light which such aids have furnished. In the case in hand, there appears to have been an unusual effort, both for and against the application. The number of remonstrants considerably exceeds that of tbe petitioners. This is all very well, so far as it is addressed to the discretion of the court. The result is not conclusive upon him. Otherwise, we would have local option without the sanction of an act of assembly, yet enforced by the judiciary. In the case in hand, the learned judge has undoubtedly attached great weight to the remonstrances. He does not appear, however, to have wholly substituted the judgment of the remonstrants for his own. The most that can be said is that they were of sufficient weight to convince him that the license was not a matter of public necessity. In the view we take of the case, this was not an abuse of discretion. We are not called upon to say whether it was exercised wisely. Mandamus refused.