In re Pollard for License

[To bo reported.] 1. Tire granting of wholesale licenses being a matter specially committed to the Courts of Quarter Sessions by the act of May 24, 1887, P. L. 194, upon a writ of certiorari the Supreme Court may review the proceedings of such courts therein, so far as to see that they have kept within the limits of the powers conferred, and have exercised them in conformity with law. 2. The provision of the act of May 24, 1887, P. L. 194, that wholesale licenses to dealers, brewers, distillers, bottlers, etc., “shall be granted only by the Court of Quarter Sessions of the proper county, in such manner as is provided by existing laws,” does not confer upon such courts the discretionary powers conferred by the act of May 13, 1887, P. L. 108, relating to licenses to sell liquors by retail. 8. The retail license act of May 13, 1887, being an act to restrain and regulate the sale of liquors, and the wholesale license act of May 24, 1887, being an act providing for revenue, with no reference in the latter act to the provisions of the former, the “ existing laws ” referred to in the latter act are the existing laws in force in the proper county relating to the granting of wholesale licenses. 4. The existing law relating to the granting of wholesale licenses in Allegheny county is the act of April 3, 1872, P. L. 843, which, in respect of the qualifications of applicants, is unropealed by the act of May 24, 1887, P. L. 194, and imposes upon applicants no qualifications save that they must be citizens of the United States, of temperate habits, and of good moral character. 5. Wherefore, a petitioner for a wholesale license as a dealer, brewer, distiller, or bottler, etc., in said county, who has presented his application in due form and has complied with the requisites of the law, has prima facie a right to such license, and, in the absence of anything upon the record to impeach such right, the refusal of the court to grant it will be reversed. 6. If, however, a remonstrance is filed setting forth that the petitioner is disqualified, because not a citizen of the United States, or not of temperate habits, or not of good moral character, it is the duty of the court to hear the case, and, if the remonstrance is sustained by evidence, to refuse the license; and the refusal, on such grounds alone, is the exercise of a discretionary power which is not reviewable.

CBBTIOBABI TO THE COUBT OE QUABTEB SESSIONS OE ALLEGHENY COUNTY.* No. 121 October Term 1889, Snp. Ct. (W. D.); court below, No. 1230 March Term 1889, Q. S. On February 5, 1889, M. E. Pollard, widow of Thomas Pollard, deceased, filed her petition praying the court to grant her a license to sell liquors at wholesale, under the act of May 24, 1887, P. L. 194. The petition was in due form, under the rules in such cases, and set forth that the petitioner was a citizen of the United States; that she resided at the corner of Stanton and Euclid avenues, in the 19th ward, Pittsburgh, and had resided therein for four years; and that the place for which a license was desired was at No. 1044 Penn avenue, occupied the last year as a wholesale liquor store by the husband of the petitioner. A bond, in due form also, was filed with the petition. The rules in force relating to the granting of wholesale licenses, adopted January 21, 1888, were the following: “rule 6. “Wholesale dealers, brewers, distillers, rectifiers, compounders, storekeepers, agents and bottlers applying for license to transact business under the provisions of the act of assembly, approved May 24, 1887, shall in their petition conform to the requirements of the first, second, third, fourth and tenth paragraphs of section 5 of the act of assembly, approved 13th May, 1887, P. L. 109, 110. The petition shall also give the names of no less than two reputable resident freeholders of the county, who will be sureties on the bond of the applicant, and a statement that each of said two sureties is a bona fide owner of real estate in the county worth over and above all incumbrances the sum of two thousand dollars, and that it would sell for that much at public sale. “rule 7. “ The Rules of Court in relation to retail dealers shall apply to applications under the act of 24th May, 1887, as to time of filing petitions, advertisement thereof, and the date from which licenses shall run, and also as to petitions in favor of and remonstrances against tbe granting of a license; such applications will be heard on the first Monday of April in each year, and the hearing shall be continued for such length of time as may be necessary to dispose of all the applications.” An act of assembly entitled “ An act to regulate the sale of intoxicating liquors in the county of Allegheny,” approved April 3, 1872, P. L. 843, provided: “ Section 1. That all laws and parts of laws now in force, relative to the sale of vinous, spirituous, malt or brewed liquors, or any admixtures thereof, in the county of Allegheny, or any part thereof, be and the same are hereby repealed; and from and after the passage of this act it shall be unlawful to keep or maintain in said county any house, room or place where vinous, spirituous, malt or brewed liquors, or any admixtures thereof, are sold or drank, except as hereinafter provided: Provided, That this act shall not bo construed to repeal or affect any special law prohibiting the sale of intoxicating liquors, or prohibiting the granting of licenses, in any borough or township in Allegheny county. “ Section 2. The treasurer of said county shall, annually, upon payment to him of tbe license fees, and the receiving of the bond hereinafter mentioned, grant the license hereinafter specified to citizens of the United States, of temperate habits and good moral character, for the term of one year, to bo computed from either the first days of May, August, November or February following the date of the granting thereof: Provided, That in no instance shall a license be dated back of the time of its being issued, nor shall any liquors be allowed to be sold under said license, until the year for which the license issues shall have commenced.” The provisions of the act of May 24,1887, P. L. 194, entitled “An act providing for the licensing of wholesale dealers in intoxicating liquors,” are quoted in the opinion of the Supreme Court. On April 13, 1889, the petitioner and one of her salesmen were examined before the court, and testified to the amount of business done in the preceding year in the sale of whiskey and beer; that whiskey and beer were sold in barrels, casks, jugs, and in bottles put up in cases, and that sales were made to clubs and to dealers, in the city and other places. No objecfcion or remonstrance against the granting of the license prayed for was filed. On April 22, 1889, the petition was refused, the court, White, J., filing no opinion showing reasons therefor. On the same day, however, like petitions in due form accompanied by bonds also in due form, filed by a large number of other applicants including the L. H. Harris Drug Co., Joseph Fleming & Son, druggists, T. D. Casey & Co. and Joseph Einstein & Co., bottlers, without objection or remonstrance filed, were also refused, and the court, White, J., filed a general opinion relating to both retail and wholesale licenses, which in part was as follows: Unexpectedly and much against my will I was thrown into the license court this year and had to hold it alone. I felt the great responsibility, and knew how the court might be criticised and misrepresented. But a judge who shrinks from any duty, or is deterred from a faithful performance of it, from fear of personal consequences, is unworthy his office. At the beginning of the court and during its sittings, the Department of Public Safety of the city of Pittsburgh presented certain papers in open court complaining of numerous violations of.the law by brewers, wholesale and retail dealers, and calling upon the court to aid the department in suppressing these evils, and securing good municipal government. These papers, and the duty of the court under the law, required a searching and thorough examination of the applicants. Nor could they complain of this. The law requires certain qualifications in the applicants, and if they have had license, that they shall have observed all the laws on the subject. By their applications they assert in court that they possess these qualifications and have faithfully kept these laws. It is the right and duty of the court to give them a thorough cross-examination. The law requires that all applicants for retail license shall be citizens and men of “ temperate habits and good moral character; ” also that the court “ shall refuse the license when it is not necessary for the accommodation of the public and the entertainment of strangers and travelers.” This is the imperative mandate of the statute. The evils of intemperance and excessive drinking had become so great and widespread, that the pub-lie welfare required more stringent regulations on the subject. The acts of 1887 were passed to cheek these evils. The act in reference to distillers, brewers, wholesale dealers and bottlers, was before the legislature at the same time as the retail act, and should be construed in connection with it, both as parts of the new system; for in all these cases the -court is required to hear remonstrances and objections and exercise a sound discretion. If these acts are too stringent the remedy is with the legislature. The courts should administer them in their true intent and spirit. The court has no right to construe these acts in accordance with any personal views on the subject, or stretch them to meet any supposed public demand. As many applicants were refused, and some who had license last year, it is proper to state the grounds of the court’s action; not the reasons in each particular case, but classifying them under several general heads. Some were refused on one ground and some on several. RETAIL DEALERS. * * * * « * * * DISTILLERS AND BREWERS. The Department of Public Safety complained that distillers, brewers and wholesale dealers were habitually supplying liquors to unlicensed houses, and that while this continued it was impossible to suppress the illegal traffic. Some of the distillers, and most of the brewers and wholesale dealers, when closely pressed, had to admit that they had done so. Generally they were willing to confess the wrong and promise not to be guilty in the future. Those were granted license on that condition. But some claimed the right to sell to any persons who would pay, without inquiring or caring whether or not they were engaged in the illegal traffic. Of course, such were refused. One who sells to another to carry on an illegal business becomes a party to the unlawful act, and is just as guilty as the direct violator of the law. Another serious complaint against distillers, brewers and wholesale dealers was, that they were selling enormous quantities in jugs, small kegs and bottles, and delivering them late at night, and at improper and suspicious places. The jug trade is a new business. It started up after the license court of last year. It has been one of the greatest sources of drunkenness and trouble. Parties would get jugs or small kegs at the brewery, and taking them to a shanty, back yard or vacant lot, have a drunken frolic all night, and frequently this occurred with boys. That this kind of business shall cease, is also made a condition in the licenses now granted. If it continues, or the practice of selling to unlicensed houses, the license will be revoked. WHOLESALE DRUGGISTS. Retail druggists are not entitled to a license to sell liquors by wholesale. It is a totally distinct business. Nor are wholesale druggists, where the intention is to enter largely into the liquor business. But it may be a convenience to wholesale druggists to have a wholesale liquor license, when filling orders from retail drug stores in the country, or to furnish a quart or gallon of liquor occasionally for proper purposes in the city. But it should be merely incidental to their other business, and the amount sold be a small fraction of their total sales. When the liquor traffic, especially in bottles and jugs, becomes a main feature of their business, they should be refused license. On this principle the court has acted. WHOLESALE DEALERS. The retail dealers may sell not more than one quart, the wholesale dealers not less than one quart. This is the dividing line between the two classes of business. But the law means that the two shall be entirely different kinds of business. The main business of the retailer is drinks; the main business of the wholesaler, in large quantities, in bulle. When the retailer deals out extensively in bottles, pints or quarts, he is.perverting his legitimate business; when the wholesaler deals out extensively in single bottles, he is perverting his legitimate business. The most fruitful source of drunkenness and the greatest evil to boys and young men under age is the bottle trade. The examination of the applicants showed that many of the parties having a wholesale license did little more than a retail business in bottles. That the jug trade constituted a main feature of their business. Such a house is a greater evil than a retail house. It sells almost exclusively in the neighborhood. One man or boy buys a bottle or jug and half a dozen or a dozen get drunk on it. In liarmony. with the spirit of our present laws on the subject, the court has felt constrained to refuse many of these wholesale applicants who had license last year. Another fact was developed during the examinations; that in the past year many drinking clubs were started in different parts of the cities and larger boroughs. These are most disgraceful and demoralizing associations. The members themselves seem to have thought so, for they were generally-disguised under the name of a “ Literary ” or “ Musical ” society. This, however, is only a temporary evil, perhaps engendered by spiteful hostility to the stringent act of 1887. The clubs will soon die out. The had effects are already seen and felt. The members will soon get ashamed of them and abandon them. The existence of such clubs is no argument in favor of more licensed houses, for the members could all get enough drinks without them. It is rather an argument in favor of more stringent regulations, and for drawing a tighter rein on those wholesale dealers who furnish them the liquors. The bucket trade is a disgraceful business and also a great evil. It is not unlawful to sell a quart of beer or whiskey in a bucket. But when men, women and children are seen with buckets entering or coming from a saloon or liquor store, and carrying them along the streets to their homes, the sight is offensive and revolting to most persons, and is regarded as a sure sign that the persons are of a low class and the saloon or store one of the lowest and worst. There is an indecency about it that should not be tolerated. Some one lias said the poor man ought to have the privilege of carrying his liquor in his bucket, for be cannot, like tbe rich man, have it sent in a demijohn by the express wagon to his bouse. But every man should have a decent respect to public opinion. Stopping the indecent bucket trade will not prevent any poor man from getting what liquor be wants. BOTTLERS. Bottling is a distinct business under tbe law. A wholesale dealer has no right, under a wholesale license, to convert his house into a bottling establishment. Some who bad a wholesale license last year, did so, and are refus.ed this year. Small bottling houses are generally an evil in the locality. It is difficult to conduct the business in a legitimate manner. Selling single bottles at the house, or peddling them about the streets, and selling to anybody who calls, is apt to run into an illegitimate business, selling to improper persons. ******** On April 26,1889, Mrs. Pollard filed a petition for a rehearing upon her petition for license, and on May 9th, the petition for rehearing was refused. Thereupon the petitioner took this writ, specifying for error: 1. The court erred in refusing the application of Mary E. Pollard for a wholesale license. 2. The record showing that no objections were made or remonstrances filed to her application, the court erred in refusing the same. 8. So far as the record shows, Mary E. Pollard was entitled to a license to sell liquors at wholesale, and, therefore, the judgment of the court refusing her license is erroneous. 4. Mrs. Pollard being a citizen of the United States, and there being no intimation that she was either intemperate or of immoral character, the court below had no discretion, but were legally bound to grant her license on the record as it stood. Writs of certiorari were also taken by the L. H. Harris Drug Co., Joseph Fleming & Son, T. D. Casey & Co., Joseph Einstein & Co. and a number of others, upon like cases with that of M. E. Pollard, the assignments of error raising the same question, and all the cases were argued together.