Appeal of Polish Falcons

Lencher, J., To correct any mistaken impressions as to the meaning of our order granting new liquor licenses in the cases above entitled, we make plain herewith the developments which led to those orders. Since last September appeals from orders of the Liquor Control Board in Allegheny County have been filed here in our court under the provisions of the acts of assembly approved May 27, 1943, P. L. 688, 694. Most of the appeals concern suspensions of liquor licenses, and these are the first cases in which we could isolate the sole question considered from other possible reasons that could move the Liquor Control Board to refuse to grant a new club liquor license. No court in Pennsylvania questions the Liquor Control Board’s discretionary power to refuse applications for new club liquor licenses. The sole question before us concerns only the board’s claim to have no power at all to grant a new club liquor license so long as the retail liquor license quota, hotels excluded, is exceeded. The issue has appeared repeatedly in the courts of our Commonwealth. It was deemed wise for us to determine whether all of us could agree to sustain the legal inter — 15 — pretation contended for by the Liquor Control Board. The question concerns language which first clearly exempts new club liquor licenses from the quotas, and then seems to deny clubs the exemption first created. Inevitably the proposition must include this general consideration: Does a club — athletic, recreational, political, fraternal — which maintains a bar and sells liquor to its members fall within the quota fixed for retail liquor licenses for public restaurant and eating places? Confronted With that question, all other issues being admittedly out of the case, Judge Hoban of Lackawanna County on July 17, 1940, reversed the refusal of the Pennsylvania Liquor Control Board to grant a new liquor license to a club. Interpreting the language of the Liquor License Quota Act of June 24, 1939, P. L. 806, hereinafter quoted, he held that the population restriction set up in the act as to the granting of retail liquor licenses cannot include new liquor licenses to clubs. On appeal to the Superior Court of Pennsylvania, that appellate tribunal, without a dissenting opinion in the case of the Lithuanian Beneficial Association’s Club Liquor License Case, 142 Pa. Superior Ct. 556, held that its only province under the law was to determine whether courts below had jurisdiction and whether the proceedings were regular. This was in line with previous declarations of the appellate courts that, if there was no uniformity of decisions on this important question, that was something for the legislature to care for: McGettigan’s Liquor License Case, 131 Pa. Superior Ct. 280, 286. The same question, again unattended by any other problems, came before President Judge Hughes — now Justice Hughes of our Supreme Court — and Judge Burnside of Washington County in B. P. O. E. of Monongahela’s License, 43 D. & C. 457, and the same conclusion was reached, the quota there, too, being “the only thing that prevents the issuance of this license”. Decisions to the contrary will be found. In Appeal of Legion Home As — 16 — sociation of Danville, 48 D. & C. 123, Kreisher, P. J., reviews 45 cases on the question, finding that 21 cases in Pennsylvania sustained the Liquor Control Board’s automatic refusal — without citing any other reason— to grant a new club liquor license once the quota is exceeded, while 24 opinions studied by him held to our interpretation, to wit, that the Quota Act does not apply to applications for new club liquor licenses. The cases above entitled were specially placed upon the argument list. We heard the narrow question argued, then heard the evidence de novo, testimony being presented only by the appellant clubs. Their evidence was uncontradicted and the Liquor Control Board presented no testimony. The purposes and personnel of each club were highly recommended by citizens appearing before us. The title of the Liquor License Quota Act of 1939, reads as follows: “An act limiting the number of licenses for the retail sale of liquor, malt or brewed beverages, or malt and brewed beverages,, to be issued by the Pennsylvania Liquor Control Board; defining hotels, and prescribing the accommodations required of hotels in certain municipalities.” “No licenses shall hereafter be granted by the Pennsylvania Liquor Control Board for the retail sale of malt or brewed beverages ... in excess of one of such licenses, of any class, for each one thousand inhabitants or fraction thereof, in any municipality, exclusive of licenses granted to hotels, as defined in this act, and clubs. . . . Nothing contained in this section shall be construed as denying the right to the Pennsylvania Liquor Control Board to renew or to transfer existing retail licenses of any class, notwithstanding that the number of such licensed placesfin a municipality shall exceed the limitation hereinbefore prescribed; but where such number exceeds the limitation prescribed by this act, no new license, except for hotels as defined in this act, shall be granted so long as said limitation is exceeded”; sec. 2. — 17 — Clearly clubs are specifically excluded from the quota in the first sentence of section 2. But the word “clubs” disappears in the last part of the section providing that “where such number exceeds the limitation prescribed in this act, no license except for hotels as defined in this act shall be granted therein so long as said limitation is exceeded”. It should be first observed that if club licenses are included within its provisions this act would have to be held unconstitutional as to clubs, the title being clearly defective and in contradiction of article III, sec. 3, of our Constitution. The word “club” does not appear in the title, and indeed is not defined anywhere in this act. In the Liquor Control Act of June 16, 1937, P. L. 1762, a club is defined as “any reputable group of individuals associated together not for profit for legitimate purposes of mutual benefit, entertainment, fellowship or lawful convenience, having some primary interest and activity to which the sale of liquor shall only be secondary . . .” This definition is substantially the same as in the Beverage License Law of June 16, 1937, P. L. 1827. In Appeal of Thomas P. Lambert Post No. 2540, V. F. W., 49 D. & C. 281, President Judge Shull of Monroe County finds the act to exclude clubs from the quota, and emphasizes that “the particular effect of including club licenses within the quota provision would be to prevent issuance of any such license for an indefinite number of years, in view of the fact that the statute itself had placed an artificial value on restaurant licenses which would result in the perpetual continuance of existing licenses of that class. ... If the statute should be so construed, then it would be unconstitutional insofar as club licenses were concerned because the title failed to disclose any such purpose”. Indeed, some judges, having considered this definition of clubs above given, have gone so far as to doubt that new club liquor licenses could ever have been in18 eluded within the operation of the Quota Act of 1939, even had the word “clubs” never appeared in the first sentence of section 2. See In re License of I. B. P. O. E. of W., John F. Moorland Lodge No. 801, 42 D. & C. 222, 228. Without passing on that question, we believe the affirmative appearance of the word “clubs” clearly creates an exception, and takes them out of the quota. We are not free to treat the word “clubs” as surplus-age; to do so would violate the fundamental rule that, in construing a statute, it is not possible to treat language therein as mere surplusage unless no other construction is reasonably possible: West v. Lysle et al., 302 Pa. 147; Reinbold v. Commonwealth, 319 Pa. 33. Judge Hoban says in the Lithuanian case referred to above: “. . . if the Legislature decided to limit the number of licenses to be issued to clubs, it could have said so in very plain language, just as it did in the case of retail restaurant licenses. Not having said so, and having in one part of the act said specifically that clubs were to be exempted from license limitation, we are of the opinion that the legislature clearly meant that no restriction was to be placed on the issue of liquor licenses for bona fide clubs otherwise meeting the test of law and regulations.” There is no attempt in section 1 to define the different types of licenses except to define the one .word “hotels” and to classify hotels in general according to sleeping accommodations. The restriction includes both beer and liquor licenses. The legislature clearly intended to exempt clubs and hotels from any and all types of populations. From the title and the context, the words “in excess of one of such licenses of any class, for each 1,000 inhabitants or fraction thereof” refer to the two classes of licenses, liquor licenses under the liquor act, and beverage licenses under the beverage act, and mean that the quota is to be calculated on the — 19 — total of said two classes: In re License of I. B. P. O. E. of W., John F. Moorland Lodge No. 801, 42 D. & C. 222, 227. This interpretation excluding clubs from the Quota Act is supported by the application of some of the provisions of sections 51 and 52 of the Statutory Construction Act of May 28, 1937, P. L. 1019, providing that where words used by the legislature are not explicit we may determine the legislative intent by considering, inter alia, the necessity for the law, the mischief to be remedied, the possible injustice, inconvenience, and common sense of each possible interpretation and any contemporaneous legislative history. As to need for new legislation, the Liquor Control Board, before the Liquor License Quota Act of 1939, had — and to this day has — broad power in its discretion to refuse the issuance of new club liquor licenses — power it did not have as to restaurants and other eating places. But there was growing up an overabundance of restaurants and eating places under the mandatory provisions relating to the issuance of liquor licenses for them. Section 403 of the Liquor.Control Act of 1937, P. L. 1762, provides that, while the Liquor Control Board may in its discretion grant and issue a liquor license to a club, it shall issue a license to a hotel or restaurant once the applicant fulfills the formal legal requirements. And so, too, as to licenses for eating places, while in the case of a club the board may in its absolute discretion issue a retail dispenser’s license, section 6 of the Beverage License Law of 1937, P. L. 1827, provides that it shall, in the case of any restaurant or hotel seeking a license, issue it so long as the board is satisfied with the truth of the statements in the application. Restaurants and eating places piled up in even greater numbers, because under the provisions of sections 403 and 408 of the Liquor Control Act of 1937, P. L. 1762, the board has no discretion in granting or refusing the transfer of a liquor license in the case of restaurants and eat — 20 — ing places where all the statutory requirements have been met. The duty of the board to transfer is mandatory once the applicant complies with certain specific conditions laid out in the act, the board being given discretion to refuse the transfer only in certain exceptional situations, such as locations within 300 feet of a church. Some decisions denying the board’s mandatory duty to transfer liquor licenses for restaurants and eating places do, indeed, exist: In re Transfer of Liquor License, 46 D. & C. 93. But the majority of the opinions make the transfer mandatory: Larkin’s License, 35 D. & C. 684; Popp’s License, 41 D. & C. 500. It would seem settled now that the transfer should be denied only because of so basic a matter as a covenant in a deed or other serious restriction running with land: Cheris’ Liquor License, 127 Pa. Superior Ct. 355. We hold no briefs for the evils that can grow out of the administration of club liquor licenses. But that must not blind us to the plain intent of the law. The mischief against which the Quota Act of 1939 is directed is clearly the public restaurant and public eating places, which by 1939 had already become so numerous in some localities as to make it difficult for some of them to operate a profitable establishment, so numerous as to create vicious social evils in the grinding competition that came with so great a number of them. The other possible interpretation, placing clubs within the retaii license quota, may well achieve an absurd result. It is one of the presumptions provided by the Statutory Construction Act, supra, that our legislature does not intend absurd results. As Judge Hoban said in his opinion in the Lithuanian Association case: “It [meaning the act of assembly] is workable so long as the number of retail restaurant licenses does not fall below the authorized number contemplated in the restriction of the act. But suppose that the number of retail restaurant licenses falls below the authorized number by just one license. There would then be noth — 21 — ing to prevent a hundred clubs in any municipality from applying for and receiving licenses so long as in the meantime a new restaurant liquor license was not issued to bring the number up to the authorized quota.” And an able jurist who holds a contrary view as to the technical legal question involved, Judge Sheely, in Appeal of the Harrisburg Country Club, no. 342, January sessions, 1942, of Dauphin County, sees this absurd possibility, and says, “we do agree with the appellant that the statute causes what may be termed as an absurd condition . . . There may be any number of club licenses issued so long as the quota is not filled. But when the quota is filled or exceeded, no club license may thereafter be issued even though there are no club licenses outstanding in the municipality . . . This is a legislative problem”. That one beverage license in excess of the quota, including clubs, in a restaurant or eating place conducted at a place or in a manner offensive to the sensibilities of some of its neighbors, should for an undetermined number of years bar respectable members of a private club from getting a liquor license is a result absurd and unreasonable. Such a result was not the intention of the legislature. The contemporary legislative history supports the interpretation that clubs are not within the Liquor License Quota Act of 1939. We are assured by members of the General Assembly for that session, including our colleague, Judge L. Kenneth Harkins, that the legislature clearly intended to exclude clubs from the quota. The Statutory Construction Act of May 28, 1937, P. L. 1019, art. IY, sec. 51, gives us the right to consider such contemporaneous legislative history where the legislative intention is not easily ascertained from the provisions of a bill, this being merely declaratory of existing laws: Miles’ Estate, 272 Pa; 329; Orlosky v. Haskell, 304 Pa. 57. We have examined copies of House Bill 1337 (printer’s no. 426), the Quota Act originally — 22 — introduced, printer’s no. 672, which was the bill as re-reported from the House Committee on Liquor Control and passed by the House, and printer’s no. 947, Senate reprint, which was the bill amended by the Senate and passed by the Senate, and then we have looked at the report of the conference committee on House Bill 1337, printer’s no. 997. It is significant to note that the words “and clubs” do not first appear at all after the clause “exclusive of licenses granted to hotels as defined ,in this act,” — an amazing omission in the bill largely aimed — so say our friends who thought clubs are within the retail quota — at club mischief. In these printer’s copies we saw the words “and clubs” appear for the first time after the clause “exclusive of licenses granted to hotels as defined in this act” in the conference committee report. A search of the 1939 legislative session minutes shows that the conference committee met, acted, printed this report, and the act passed in the closing moments of the last day of the session, to wit, May 29,1939, when, as everyone knows, the utmost confusion exists in the General Assembly. Undoubtedly the conference committee intended to, and thought that it had, eliminated clubs completely from the quota restrictions, or else the words “and clubs” would never have been added there at all for the first time to the hotel exception in the conference report. There has obviously been no necessity for reenacting a phrase specially exempting clubs from the quota; but it might certainly have strengthened the opposing view had the legislature reenacted the broad provision that where “such number exceeds the limitation prescribed, no new licenses shall be granted except to hotels so long as such limitation is exceeded”. The legislature never did. Without this sweeping declaration omitting clubs, there would never have been a possible chance to begin arguing that new liquor licenses for clubs are within the retail sales quota. The specific phrase, adding “and clubs” to the hotel exceptions, should prevail unless — 23 — another provision had later been enacted, or the legislature otherwise made it manifest that so sweeping a general provision was intended to prevail. See Cammie v. I. T. E. Circuit Breaker Co. et al., 151 Pa. Superior Ct. 246, 252. If the club exemption needed legislative emphasis, it received it — and our interpretation is strengthened by the fact — when in the session of 1941 the legislature did pass an act amending the Quota Act of 1939, and once again even more clearly excluded clubs from the quota this time, using the phrase “legitimate purpose clubs”. Of course, there are obvious similarities in the purchase for money by a club member of liquor at the bar of his club. But it is an absurd and far-fetched conclusion that this similarity wipes out the basic differences between a club — primarily organized for athletic, recreational, political, or social purposes, and a commercial eating place which sells liquor for a profit only. Of course, we should bear down with all force on the one-man club and all other club evils. But because these evils exist we ought not to forget the wide public interests frequently served by many fraternities, lodges, ex-service men’s posts, and other clubs. When decently conducted clubs — the overwhelming number of them are decent — offer to members beverages in alcoholic form, they make this offer under circumstances which extend in addition to the liquor — a secondary consideration — such relaxation, entertainment, fellowship and shared backgrounds as cannot possibly be obtained in commercial restaurants and public eating places patronized by the public generally, where, as Judge Wilson aptly points out in the Moorland Lodge Case, 42 D. & C. 222, 231, club members “will find none of the things they desire”. As to language that may be difficult to interpret, the legislature by the provisions of the Statutory Construction Act, supra, prefers to advance a public interest rather than a purely private and commercial interest. — 24 — This technical and narrow issue finds us divided, with the result that some of our colleagues will sustain automatic refusal by the Liquor Control Board of any and all applications for new club liquor licenses on the sole theory that the board has no power to grant them when the general retail liquor quota is exceeded. It would have been clearer had the amended act of 1941, hereinbefore mentioned, been approved by the Governor. He vetoed it with an ambiguous statement which does not make clear — if it be important — what his own interpretation of the amendment was. Those of us who believe that clubs are not within the quota act are not disposed to grant new club liquor licenses indiscriminately, recognize the Liquor Control Board’s wide discretion in refusing applications for new club liquor licenses, and will continue to respect reasons assigned for that refusal when properly and lawfully presented in evidence before us. Order of court And now, to wit, March 16, 1944, the appeal above entitled having come on for hearing de novo, the witnesses were sworn in open court, their testimony taken, and after full and careful consideration thereof, the order of the Pennsylvania, Liquor Control Board of November 24, 1943, is reversed, and the board is ordered and directed to issue the license applied for by the appellant on October 1, 1943; the appellant to pay the costs.