Cambria County Liquor Licenses

Opinion by Porter, J., These seventeen separate appeals are from orders refusing to grant the several appellants, respectively, license to sell liquor, some of them at wholesale and others at retail. They present the same questions and may be properly disposed of by one opinion. The final order which in each of the appeals is assigned for error was in this form: “Now, May 3rd, 1921, after full hear — 36 — ing and upon due consideration, .all applications for liquor license for the year 1921, are, for the reasons above given, refused, and the clerk of the court is directed to mark each and all of said license applications, both wholesale and retail......‘Refused.’” The final order of the court thus directly refers to the reasons given for the refusal of the applications, in the opinions filed by the judges of the court. The opinion filed by the president judge discloses that he was convinced that the licenses prayed for by some of the applicants ought to be granted, although the opinion does not indicate what particular application, but that in the opinion of Judge Evans, the additional law judge, there was no necessity for the granting of any of the liquor licenses prayed for, which resulted, because of the division of opinion, in the refusal of all the applications. We do not deem it necessary to discuss the question which might seem to arise out of the failure of the opinion of the president judge to indicate the applications with regard to the disposal of which he differed from the conclusion arrived at by Judge Evans. It may be that, viewed technically, no particular appellant is in position to assert that the judges of the court below were not in full agreement as to the refusal of his application upon the ground of necessity. Let it be assumed that all the applications were refused, upon the grounds disclosed by the opinion of Judge Evans, the additional law judge, of the court below. It must be kept in mind that the extent to which we may go in considering the opinion of the court is limited to the ascertainment of the grounds upon which it based its decision. If the reason set forth is a legal reason, the order must be affirmed; if, on the contrary, the reason is not a legal reason the order will be set aside by the appellate court as being an abuse of discretion and, therefore, not according to law: Venango County Liquor Licenses, 58 Pa. Superior Ct. 277. We have carefully considered the opinion of Judge Evans, which — 37 — clearly discloses that he had personally endeavored to ascertain the conditions existing among the license dealers in liquors in the County of Cambria and the existence or absence of any necessity for the granting of any license to sell such liquors as, under the laws of the United States, any person to whom a license might be granted could lawfully sell. The closing paragraph of his opinion thus clearly states the ground upon which he based his judgment that these applications should be refused, viz: “We are, therefore, of the opinion that under the facts as they appear to us there is no necessity for the granting of any liquor license in the County of Cambria.” We must, therefore, accept the conclusion that the applications were refused because, in the opinion of the court, the several licenses were not necessary for the accommodation of the public. The duty of determining the question of the necessity for a license is by the law imposed upon the judges of the court of quarter sessions. The mere fact that there is no remonstrance on the records of the court, nothing but the averments in the petition for license, does not relieve the court of the duty to hear and determine. The averments of fact contained in the petition must at the time fixed be heard and considered. The court may hear oral testimony, or may of its own knowledge of the material facts refuse the application: Gross’s License, 161 Pa. 346; Shearer’s License, 26 Pa. Superior Ct. 34; Empire Brewing Co.’s License, 47 Pa. Superior Ct. 548. “An investigation of this question has no particular bearing upon the petitioner’s fitness for a license to sell liquor; it is a general one, with which he has no more legal concern than any other citizens of the ward. The question is one of public concern; the petitioner is no party to it in the sense that persons are parties to private litigation...... The law of the land......has imposed the duty upon the court of ascertaining the instances in which licenses shall be granted. In order to perform this duty properly, the act of assembly has provided means by which — 38 — 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. The mere appearances of an applicant for license, when he comes to the bar of the court, may be sufficient to satisfy the judge that he is not a fit person to keep a public house. The judge is not bound to grant a license to a man whom he knows to be a drunkard or a thief, or has actual knowledge that his house is not necessary for the public accommodation” : Raudenbusch’s Petition, 120 Pa. 341. “It may, and sometimes very properly does, act of its own knowledge obtained from observation of the applicant and acquaintance with the district”: Kelminski’s License, 164 Pa. 231. “The record shows that the case was heard, considered and decided by the learned court below, and that the license was refused on the ground that in the opinion of the court it was not necessary. It is true it was the individual opinion of the judge upon which this action was taken, but we have so many times held that such opinion may be the basis of decision that we regard the subject as settled, and do not deem it necessary to review the cases or to change them”: Thomas’s License, 169 Pa. 111. The reason given by the learned judge for the refusal of the applications with which we are now dealing was a valid one, a finding of fact, concerning a question upon which the court was by the statute required to pass. The evidence upon which that finding was based is not before us, and it is not our province to determine its weight. In determining the question of the necessity for these licenses it was entirely proper for the court below to consider the fact that under the act of Congress, commonly called the Volstead Act, it would not be lawful for any person to whom a license issued to sell liquors containing one-half of one per cent or more of alcohol by volume. The Constitution of the United States, article VI, thus provides: “This Constitution, and the laws of — 39 — the United States which shall be made in pursuance thereof;......shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” It may here be observed that the Act of the General Assembly of this Commonwealth, approved May 5, 1921, after these applications were refused by the court below, expressly recognizes the paramount authority of the acts of Congress passed pursuant to and in the enforcement of the Eighteenth Amendment of the Constitution of the United States. There was, therefore, no abuse of discretion in the action of the court below in notifying all applicants that they would at the hearing of their applications “be required to appear before the court and submit to an examination upon any matters bearing upon the necessity for the license, fitness of the applicant, including the inquiry as to whether or not there had been any violation of the liquor laws of this State by the applicant, and that in this inquiry was included the question as to whether or not the applicant had violated the provisions of the Volstead Act.” When the court so caused all applicants to be notified there were one hundred and seventy-six applications pending for licenses to sell liquors at retail or wholesale, but when the time for hearing arrived only forty-five of those applicants were willing to go into a hearing and submit to an examination by the court as to the manner in which they had conducted their business under the licenses for the preceding year. The other applicants, through their counsel, advised the court that they declined to submit to the examination. Had the court refused the applications without a hearing, to which the applicants were entitled, under the provisions of the statute, such action would have been a manifest abuse of discretion. But when the court afforded the applicants an opportunity for hearing, at the time fixed by standing order or rule of court, that was all that it was required to do, and it might have properly — 40 — refused the applications of all those who refused to go into a hearing. The fact that some of these appellants had been licensed during the preceding year did not give them standing to have their licenses renewed from year to year. The statute gives the court jurisdiction to grant license for one year and no more. The grant or refusal of an application for liquor license, after full hearing and consideration of all the matters that the court may consider, does not make the question of necessity res adjudicata upon the hearing of the application of the same person for the same premises in a subsequent year. Such a previous grant or refusal, in some circumstances, ought to have little, if any, weight in determination of the application before the court, although it is proper for the court, in the exercise of a sound judicial discretion, to consider it in connection with all the other relevant facts established at the hearing or known to the court: Reznor Hotel Co.’s License, 34 Pa. Superior Ct. 525. We find no abuse of discretion in the manner in which the court below conducted the hearings, nor in the conclusion at which it arrived. The order of the court below, in each of these appeals, is affirmed and the appeal dismissed at the cost of the respective appellants.