Commonwealth v. Joseph Kohnle Brewing Co. , 1896 Pa. Super. LEXIS 206 ( 1896 )

Opinion by

Rice, P. J.,

The act of June 9, 1891 (P. L. 257), provides, inter alia, that, “ upon sufficient cause being shown or proof being made to the said court that the party holding a license has violated any law of this commonwealth relating to the sale of liquors, the court of quarter sessions shall upon notice being given to the person so licensed, revoke said license.” In 1895 the appellant applied for, and was granted a “brewers license,” setting forth in the petition therefor that “ the particular place for which a license is desired is, No. 1721 and 1723 Buttonwood St., in the 15th ward of the city of Philadelphia.” The accompanying bond recited the fact that the company had filed its petition “ to manufacture and brew malt liquors at 1723 Buttonwood street.” After due notice and hearing, the court revoked the appellant’s license, setting forth upon the record the grounds of its action in the following order : “ And now, March 31, 1896, it appearing to the court that the Kohnle Brewing Co., manufactured beer, and delivered the same to their customers at 2209 N. Fifteenth street without a license, and also that they established an agency for the sale of the beer so made at 1723 Buttonwood street, and transmitted the orders for the beer there received to 2209 N. Fifteenth street, without a wholesale license, the above rule is made absolute, and their license to manufacture and sell beer at Buttonwood street is revoked.”

The appellate jurisdiction of this court in such a case is the same as, and no greater than, that exercised by the Supreme Court upon certiorari prior to the act of May 9, 1889 (P. L. 158): Colwyn v. Tarbotton, 1 Pa. Superior Ct. 179. As defined in Dolan’s Appeal, 108 Pa. 564, it is restricted to what appears upon the face of the record proper. If manifest error does not there appear, the order complained of must be affirmed. But if there is anything on the face of the record to show affirmatively that the court acted arbitrarily, and without cause, or that the cause shown was wholly insufficient, it would exhibit such an abuse of discretion, as would demand a reversal of the order.

The question fairly raised upon this record is whether a brewers’ license authorizes the licensee to have his brewery at; a place not mentioned in his petition or license, and to deliver beer to customers from such brewery, upon orders received at, and transmitted from, the place for which his license was granted. The contention of the appellant is that the act of 1891 does not attempt to regulate the manufacture of liquors, but only their sale, and hence the holder of a brewer’s license may brew beer at any place, and in any quantities, and so long as he does not sell the beer no statute of the commonwealth would be violated; but that the business of selling beer so manufactured can be conducted only under a license and at the place licensed. This seems plausible, but when applied to the present case the argument amounts to this: The appellant’s license is to sell beer at 1723 Buttonwood street, and so long as the orders of its customers are received and accepted, the accounts kept and payments made at that place, it makes no difference where the beer is manufactured, set apart and delivered. Following the argument out to its logical conclusion, the licensee can do what is said to have been done here, open and operate a brewery for the manufacture of beer for sale at a place for which license was refused, provided he keeps an office for the direction of the business at the place for which license was granted. We are unable to approve this construction of the act of 1891. The business of a brewer includes the manufacture and sale of beer, and certainly since 1849, if not before, the state has licensed and taxed this business. By the 31st sec. of the act of April 10, 1849 (P. L. 576), the appraisers of mercantile taxes were required to make annual returns to the county treasurer of the number of distilleries and breweries within their respective counties, specifying the name of the owner or proprietor of each, and the number of gallons distilled, brewed, etc., per annum. They were taxed according to their annual sales. Section 33 made it an indictable offense “to carry on any such distillery or brewery without a license.” By the license law of March 31, 1856 (P. L. 200), the tax was doubled, and section 34 made it a misdemeanor for any person engaged in the sale or manufacture of liquor to employ or permit any intemperate person to assist in such manufacture or sale. The rates were again changed by the act of April 20, 1858 (P. L. 365), but both acts speak of the license as a brewery or distillery license, an entirely different thing and obtained in a different way from a wholesale license. But it was held in Britton v. Commonwealth, 105 Pa. 311, that a distiller of whisky who had paid the annual county tax for a distiller’s license, might sell the whisky manufactured by him in quantities not less than one gallon at any one place within the county, other than at his distillery. The reasons which led the court to this conclusion, at least so far as they applied to the case of a brewer, were clearly stated by Justice Clark, and we may profitably quote from his opinion to show the changes that have been made by the act of 1891. “ The license of a distiller under the provisions of the several acts of assembly referred to appears to confer a privilege to be exercised within the proper county. He is appraised, taxed and licensed, in the same manner as a vender of merchandise, upon the return of the mercantile appraiser, and the license thus obtained secures the privilege not only to manufacture, but to sell the product; there is no requirement expressed in the statute that this sale shall be conducted at the precise place of manufacture. The applicant for a distiller’s license is not required, as a licensed retailer is, in an application to set forth the particular place in which his business is proposed to be conducted, or to designate the building with its adaptations to the particular purpose of the license. The business like that of a vender of merchandise is open to all who may choose to engage in it upon compliance with the law. There is nothing expressed in the statute, or in the form of license prescribed by law, or in the form of procedure to obtain it, which restricts the business to any particular place or to any subdivision of the county.” The changes effected by the acts of 1887 and 1891 are, that a person desiring to conduct the business of a brewer, that is to-manufacture beer for sale, and to sell the beer thus manufactured by him, must apply to the court for a license and must, set forth in his application “ the particular place for which a license is desired.”

The advertisement which the clerk is required to publish must designate “ the place for which application is made.”' The license which issues to him authorizes him to conduct the-business of a brewer, as above defined, at the place designated in his petition. He may obtain the license, it is true, without, proof “ that the place to be licensed is necessary for the accommodation of the public”-Doberneck’s Appeal, 1 Pa. Superior Ct. 99; Gemas’ License 169 Pa. 43—but not without designating the place. The act of 1891 is not merely a taxing law, but is, as its title indicates, an act “ to restrain and regulate the sale of vinous, spirituous, malt or brewed liquors, or any admixture-thereof by wholesale.” Wholesale dealers, brewers, distillers, etc., are required “ to pay for each separate store, brewery, distillery, etc., an annual license.” Strictly speaking, the license-is not granted to the place but to the person; and so far as the law is a police measure, the purpose is, as the appellant’s counsel argues, to regulate the sale, and the penal provisions, of the act of 1887 are directed against unlawful sales. But in licensing brewers as a separate class of dealers, who, it is to be-remembered, may sell to consumers as well as to other dealers,, the law wisely provides that the owner must have a license for each separate brewery. In a sense this is a regulation of the manufacture of beer, because if the product cannot be sold breweries will not be established. The act deals with the-manufacture of beer for sale, as a constituent part of the business of a brewer, and an enactment requiring him to take out a license for each separate brewery where beer is manufactured, for sale and sold is fairly within the scope of the title of the act. It is a legitimate method of regulating the sale by that class of wholesale dealers to which brewers belong. We can-add nothing profitably to what the learned judge below has. said upon this feature of the case. It is no answer to say that the place where the business of a brewer is conducted is not a matter of importance provided he sells only the product of' one brewery. Under the law the public have a right to know the place where the business is to be conducted, and to be heard in opposition to the granting of the license. Citizens.living in the vicinity of the place on N. Fifteenth street might have no personal motives for objecting to the granting of a license to a man to carry on the business of a brewer on Buttonwood street, but would object if they knew that the brewTery was to be located in their vicinity. True they might- not. be heard to object that the place was not necessary, but, knowing the place, they might object upon other valid grounds.. The statutory provisions requiring the place to be designated, would be of little if any value, if under a license for that place-that portion of the business in which the public is chiefly interested and which the law was chiefly intended to regulate,., namely the manufacture and delivery of the beer to customers,. could be carried on at any place in the county that the licensee might select.

It would not be difficult nor out of place to show the mischievous consequences which would follow from such a construction of the law, but it is unnecessary. Under a fair construction of the law, with reference to the purpose of its enactment, as well as under the construction which the appellant put on it, in its application, this license was for its brewery at 1723 Buttonwood street. This was the place for which the license was asked and granted. The license conferred the privilege to sell the product of that brewery, not of anjr brewery, nor beer bought of other'brewers or dealers. It had no license for its brewery on N. Fifteenth street. These were two distinct and separate breweries, not parts of a single plant. Surely it cannot be contended that the appellant could sell the product of both breweries under one license, and if it could not do that, it could not transfer the license from one to the other, at pleasure. It is not necessary in this case to say that the mere manufacture of beer at N. Fifteenth street was a penal offense, or that the appellant could not do that without a license. The facts stated in the decree are that beer was manufactured there for sale, and that the sales were consummated there by setting it apart, and delivering it to customers.

If the appellant had had no license, it could hardly be denied that although the orders for the beer were taken elsewhere, the unlawful act was consummated at the place where the beer was manufactured and delivered. We think it was none the less unlawful because the defendant ceased to manufacture beer at the place for which it obtained license.

We find no error in the record and the order is affirmed.

Note. A petition for a special allocatur was applied for to and refused by the Supreme Court on May 18, 1896.