Indian Brewing Company's License

Telford, P. J., filed the following opinion: The applicant in this case is a corporation, and its unfitness to receive a license has been alleged by remonstrance filed, charging that the applicant by its — 184 — directors, officers and agents, has been guilty of violations of the law in the conduct of its business, which violations of law indicate its unfitness to receive a license to engage in the manufacture and sale of intoxicating liquors. The first charge alleges that it solicited orders for and delivered the products of the brewery in prohibited territory. At the hearing, evidence was submitted to the court which sustained the charge. In fact it was admitted by counsel and witnesses for the applicant that an agency was established at Strangford, a village in the township of Burrell, in this county, and that such agent solicited orders, collected the price and sent the same to the brewery. That the orders were there filled and delivered by the applicant to the Indiana Street Railway Co. to be by them carried to a point near Smith’s Station and Smith’s School House, in Burrell township. That at these points the beer was taken up by an employee of the brewery and delivered at the homes of customers in wagons marked with applicant’s license number, furnished by it for this use. From the brewery records in evidence, we are informed that between the dates of October 9 and November 6, 1913, 504 packages of beer and porter were sold and delivered in this prohibited territory through this agency. An Act was passed in 1867, P. L. 291, extending the provisions of the Act of March 27, 1866, P. L. 339, to Burrell township. This act provides as follows: “That from and after the passage of this act, no license shall be issued to any person or persons to sell spirituous, vinous, malt or brewed liquors for drinking purposes, within the limits of the boroughs of Leechburg and Apollo, in the county of Armstrong, and the borough of Coudersport, in the county of Potter, and the borough of Saltsburg, in the county of Indiana, and the borough of Duncannon and Penn Township, in the county of Perry, or within two miles of the same, in the counties — 185 — in which said boroughs are located,” which as we have stated,' was extended by the act of March 27, 1867, "To the township of Derry, in the county of Westmoreland and the borough of Blairsville, the township of Burrell, and the township of East Mahoning, in the county of Indiana, provided that the two-mile clause shall not apply to Derry township, in the county of Westmoreland and East Mahoning township, in the county of Indiana.” The applicant, while admitting the fact, defends upon the following ground: "That the act of 1891, under which the Brewery holds and applies for license, is general in its terms and permits the brewing company to deliver its product in Indiana County, and consequently in Burrell township; and this is not in conflict with the special act for Burrell township, as the Indian Brewing Company makes all its sales at its brewery in Indiana borough.” This position is not tenable. If the only act done by the brewing company was the filling of the orders as it came to it, and delivering the packages to a common carrier, it might be claimed that the sale was completed at the brewery, but when the applicant established an agency to take orders, collect money and remit the orders and money to the brewery, and when it had shipped goods billed to an employee by trolley freight into the prohibited territory and by their employee there again take up the packages within a prohibited territory and deliver them to the purchasers in that territory, the place of delivery is the place of sale.- The control of the brewery over the goods so delivered was surrendered only upon its delivery to the party who had ordered the product. So long as these prohibitory acts remain upon the statute books, the court has no power to grant licenses for the sale of intoxicating liquors therein, and the licensee is bound to take notice that such territory has been withdrawn from the operation of the license law. — 186 — We can only view this- act of the applicant as evidence of its unfitness. The same charge was made and supported by evidence at a former hearing, when license was refused. The township has been long since established; its boundaries are well known by many people, and if unknown to the officers of the applicant, the information might have been readily acquired upon inquiry. The second charge alleges: “That the applicant has made sales of intoxicating liquors to unlicensed persons in quantities beyond that possible for private consumption, thus knowingly encouraging the maintenance oí speakeasies.” In support of this allegation, the order sheets óf the applicant company were produced covering shipments for about two months, to three of its agencies, and about nine months to a fourth agency. In glancing through this evidence, we find more than 120 shipments, of from twenty to eighty pieces each, in eighths of cases on individual orders. The size and frequency of these individual orders invites investigation. For instance, there was delivered to A. Collisino, at Ernest, on November 6, 1913, twenty pieces; on the following day, November 7, twenty pieces, on the 13th, thirty pieces, on the 14th, twenty pieces, and on the 17th, forty pieces. To T. Collisino, at Ernest, November 21, twenty-five pieces, November 27, thirty pieces, on December 1, thirty pieces, and on December 4, thirty pieces. "... It is unreasonable to contend that this beer was for the personal use of the party who ordered it. If it was disposed of to boarders as the applicant contends, it could not be done legally, unless as a gratuity. Other shipments in large quantities appear to have been made, beyond that which could be used for individual consumption. Testimony was further offered to show that in two instances speakeasies had been supplied with beer. These speakeasies located in the bor — 187 — ough of Creekside, appear from the evidence to have been well known as such, and well patronized. The manager of the brewery denies knowledge of their existence, but the testimony of Mr. Biamonti, agent for that territory, was not presented. The remonstrant further presented evidence' that 100 or more cases or kegs of beer had been delivered to a society at Ernest, and the evidence further establishes the fact that this beer was sold. No effective investigation was made to ascertain the uses to be made of this large delivery. We further learn from the testimony of the president of the brewery, L. F. Sutter, that the applicant furnishes for weddings and christenings beer in quantities of from fifty to seventy-five pieces. He testifies as follows: “Q. What is your practice as to supplying beer for weddings and christenings; is there any limit, and if so, how much? A. Yes, sir. Q. What is your limit? A. We have on some occasions gotten together with the superintendent and fixed the limit for christenings and weddings. Q. When did you fix a limit for christenings or weddings? A. A long time ago. I think it was one or two years ago. Q. What was the limit fixed? A. I can’t recollect the amount we did fix; in one town the limit is seventy-five pieces for a wedding and fifty for a christening. Q. You have different amounts for different places? A. We always carry out the request of the superintendent at those places. If it was ten pieces and five, it would be carried out. Q. Then you are governed in that by the superintendent of the works? A. Yes, sir. The fact of the matter is we might say we are governed by any report that comes to us along the lines.” The custom at such weddings and christenings amongst the foreign population is well known, and the contributions of guests and the hospitable privileges that are extended in consideration therefor, constitute a palpable evasion of the license laws. — 188 — The president of the brewing company, when upon the witness stand, further stated upon examination as follows: “Q. What is your idea of the largest shipment that should be made to a private individual for his private use, a week? A. It would depend on the amount of people he would have in his house. There are houses among these foreigners, where I have made inquiry to find out about these shipments, and I found as high as twenty-one boarders in one house. I would say that as far as figures are concerned, and the use they make of it, that twenty-one boarders and the family besides, could possibly get away with 100 pieces a week, and possibly not be a bit drunk, or be any drunkenness about the house. They use it with their meals and all the time. Q. Do you, as manager of the brewery, permit as much as 100 pieces to be shipped to a particular individual? A. No, not that I ever knew of. Q. What would you say as to your list about the amount shipped to a particular individual? A. I would say it would be about forty or fifty pieces; that would be extreme. That would be an exception to permit that much to be shipped to a particular individual.” Our experience has led us to be fairly well informed about the method employed by breweries generally, in the distribution of their product. We had hoped that this brewery would be conducted in such a way as to do the least possible injury to the public, and whilst we believe that the practices here are less injurious to the .community than those common to some other jurisdictions, yet we feel that the standard which this applicant has adopted and under which it operates, is below that required by the law, and has been most injurious to the community. On December 19, 1913, preceding the filing of this application for license, the Indian Brewing Company, filed to No. 25, December Sessions, 1912, in the court of common pleas, a list of its. agents, twenty-seven in — 189 — number, all of whom with perhaps three exceptions, bear foreign names. The placing of the soliciting for orders and the delivery of the brewery products so largely in the hands of foreigners, so many of whom are unacquainted with our laws, and so little disposed to encourage moderation in distribution, must lead to frequent infractions of the law. It also appears that from an inspection of the application, that no affidavit has been filed as required by the Act of July 30, 1897, P. L. 464, sec. 1. Now, February 16, 1914, for reasons indicated in the foregoing opinion, this application is refused.