Pittsburg Brewing Company's Brewer's License , 12 Pa. Super. 176 ( 1899 )

Per Curiam,

The six judges who heard this appeal being equally divided in opinion the order is affirmed.

Opinion' by

Smith, J.,

December 13,1899:

It is unnecessary to consider the specifications relating to offers of evidence. These offers form no part of the record, and are not before us. The findings of fact by the court below are beyond review by us. The only question to be determined here is whether, in law, the court had authority to make th& decree. The denial of this authority, by the appellant, rests on the contention that the court cannot legally grant a brewer’s license if the applicant is interested in another brewery in the same county, and further, that the power to grant a brewer’s license is taken away from the court of quarter sessions and given to the state treasurer by the Act of July 80, 1897, P. L. 464.

In none of the legislation on this subject is there express prohibition of a license under the circumstances here existing, nor express provision for it. The appellant, however, contends that a prohibition is implied in the following clauses of the petition required of the applicant by the Act of June 9, 1891, P. L. 257 :

“6. That none of the applicants are in any manner pecuniarily interested in the profits of the business conducted at any other place in said county where any of said liquors are sold or kept for sale, excepting those engaged or interested in the distilling or brewing business, who shall not be debarred from obtaining a wholesale dealer’s license under this act by reason of their interest in any distilling or brewing business.

“7. That none of the applicants are in any manner pecuniarily interested in the profits of the business conducted at any other place in said county where any of said liquors are sold or kept for sale, but the ownership of stock in an incorporated company distilling or brewing said liquors shall not debar the owner thereof from obtaining a license under this act.”

In construing these clauses, we must consider their purpose, the mischief at which they are aimed and the remedy which they provide, .and, to carry out the legislative intent, so construe them as to suppress the mischief and advance the remedy. Not infrequently, to give full effect to a remedial provision, a broader or a narrower significance must be imputed to the statutory language than its ordinary meaning would imply. As was said by the Supreme Court in Umholtz’s License, 191 Pa. 177, “ All legislation, especially that which relates to proceedings in the courts, is of a broader and more comprehensive scope, and is couched in more generic language, than is employed in the drafting of private contracts, and requires an interpretation conformable to its general purpose. Thus statutes are to be so construed as best to effectuate the intention of the legislature, though such construction may seem contrary to the letter.”

Previous to the passage of this act, the retail liquor traffic was largely promoted by the practice, on the part of brewers, of supplying the means for opening eating houses, and sharing in the profits. In not a few instances, brewers owned and conducted eating houses, and to permit this the Act of April 20, 1858, P. L. 365, contained a proviso that the act should not be construed to prevent a brewer, otherwise qualified, from receiving an eating house license. This artificial stimulus to the retail traffic was the mischief which the clauses quoted were designed to remedy. To this end, with certain exceptions, they restrict the licenses for which they provide to persons not “pecuniarily interested in the profits of the business conducted at any other place in said county where any of said liquors are sold or kept for sale.” The exceptions permit a distiller or brewer to obtain a wholesale dealer’s license, and an owner of stock in a distilling or brewing company to obtain any license provided for by the act.

We regard the restrictive terms of the act of 1891, however, as limited to places where liquors are “ sold or kept for sale,” as distinguished from places where they are manufactured. Had the intention been to include the latter, we might fairly expect it to be clearly stated, and it could have been readily and fully expressed by the use of the word “ manufactured,” preceding the word “ sold.” The omission of even this word is significant. Places where liquors are retailed alone fall within the mischief which these clauses were designed to remedy. This is recognized in the exception permitting wholesale licenses to brewers and distillers. The obvious purpose was to cut up by the roots the manufacturer’s interest in the retail traffic. The interest of a manufacturer in more than one manufactory in no way interferes with this purpose, so long as an interest in retail sales is denied him. There is an obvious recognition of this in the exceptions to the seventh clause. By any other construction of the restrictive language of the act and its exceptions, every stockholder in a licensed brewing company may have also a license for a separate brewery, distillery, wholesale, bottling', rectifying or compounding establishment, while the entire body of stockholders, in their corporate capacity, cannot have a license for a second brewery. In our view, a situation so anomalous, and so devoid of effect on the mischief to be remedied, cannot have been within the legislative intent.

The effect of .the act of 1897 remains to be considered. The 1st section of this act provides that “ All wholesale dealers, brewers, distillers, rectifiers, compounders, bottlers, storekeepers, or agents, having stores or offices within this commonwealth, dealing in intoxicating liquors, either spirituous, vinous, malt or brewed, shall pay for the use of the commonwealth, for each separate store, brewery, distillery, rectifying, compounding or bottling establishment or agency, an annual license fee,” etc. It is contended by the appellee that in thus requiring an annual license fee for “ each separate store, brewery,” etc., the act gives a right to as many separate breweries as the court may think proper to license.

Whether this language, viewing it only as here employed, is used to distinguish merely the separate classes of establishments to be licensed and the separate establishments of different applicants, or separate establishments of a single applicant, or both, does not, indeed, readily appear. A comparison, however, with previous enactments on the same subject, and with the same language used elsewhere in the same act, will assist in reaching a conclusion. The Act of April 10,1849, P. L. 570, sec. 31, providing for the licensing of distilleries and breweries, directed a classification on the basis of annual sales, and required “ all distillers and brewers to pay annually, for the use of the commonwealth, for their respective licenses,” the fees therein fixed. Through all modifications of the law on this subject, until 1887, this language remained unaltered, and during that period it was assumed, in practice, that it authorized but one license to an applicant. The Act of May 24,1887, P. L. 194, however, introduced a change of phraseology, which was followed in the acts of 1891 and 1897, and which, the appellee contends, authorizes more than one brewery license to the same applicant. Instead of following the act of 1849, in requiring all brewers, distillers, etc., to “ pay for their respective licenses ” the specified fees, the later acts provide that they shall pay an annual license fee “ for each separate store, brewery,” etc. It is not to be presumed that this change was made unadvisedly, or without purpose; and its only conceivable purpose is to express the legislative intent that as many separate licenses may be granted to any applicant as to the court may seem proper. But whatever meaning may be attributed to this language as it appears in the first sections of the acts of 1887 and 1891, we are to construe it as it is employed in the act of 1897, by which those sections are repealed or superseded. The first section of this act opens with the provision already quoted, for an annual license fee for, inter alia, “ each separate brewery.” It next fixes a classification. It then provides that any brewer, upon paying the requisite fee into the state treasury, shall be licensed by the state treasurer to sell his product to licensed dealers only, in quantities not below a specified minimum, and further that “any individual, firm or corporation, operating more than one brewery, shall pay for each separate brewery so operated ” the license fee required by the act. Neither here nor elsewhere in the act is there express permission to operate more than one brewery. But such permission is necessarily implied in the requirement of the license fee for “ each separate brewery ” operated by any individual, firm or corporation; and, in law, what is thus implied is as much a part of the statute as what is expressed: Chester v. The Bank, 9 Pa. Superior Ct. 517. This provision is also in direct line with the like requirement in the first paragraph of the section, and the like effect must be given to it wherever it occurs. It is a familiar rule of construction that when the same language is used more than once in a statute, particularly in the same section, in relation to the same subject-matter, the presumption is that a uniform meaning is intended. In the sense in which the words “ each separate brewery ” are used in the latter part of this section, we have a legislative interpretation of the meaning intended by them, and their construction in the preceding part of the section is fixed by the meaning which the legislature has thus clearly given them. As they unquestionably authorize the state treasurer to issue more than one brewery license to the same person, they must be understood as also authorizing the court of quarter sessions to grant more than one. The act neither expressly nor impliedly forbids the holding at the same time of a license from the state treasurer and a license from the court. If both may be legally held, it cannot be material which is first obtained; and in such case an interest in the business conducted under the former is no bar to the latter. If they cannot be thus held, the brewer who receives a license from the court forfeits it by talcing a license from the treasurer. The legislature certainly pould not have intended to impose such a penalty for an act which it express^ •authorized. Construing the act of 1897 as authorizing the same person to hold both licenses, it substantially abolishes the prohibition implied in the act of 1891; leaving, indeed, but the merest shred of it, since the great bulk of sales is to licensed -•dealers. To construe these acts as permitting an applicant to receive a license from the court, while conducting business •under as many treasurer’s licenses as he may choose to take out, but forbidding him a second license by the court on the ground of interest in a business conducted elsewhere, is an adherence to shadow rather than substance.

Thus our conclusion is (1) that an interest in a brewery is not within the purview of the clauses of the petition required by the act of 1891 relative to other places where liquors “ are •sold or kept for sale; ” (2) that however these clauses may be •construed, the act of 1897 authorizes the grant of more than one brewery license to the same person by the court of quarter .sessions, and to this extent repeals them if they are inconsistent with this provision of the latter act.

The contention that the act of 1897 takes away the jurisdicr -tion of the quarter sessions in the granting of brewery licenses, .and vests it wholly in the state treasurer, is without foundation. The acts of 1887 and 1891 expressly declare that “licenses .shall be granted only by the court of quarter sessions of the proper county.” This jurisdiction can be taken away only by •express terms or necessary implication. There is nothing in the terms of the act of 1897, or in any implication arising from them, which can be construed as taking it away. The two acts differ materially as to procedure, and radically as to the scope of the license to be granted. The authority given the state treasurer, by the act of 1897, to issue a qualified license, cannot be viewed as a repeal of the act of 1891 as to brewers; it operates rathef in the nature of a proviso, and leaves unaffected the jurisdiction given to the quarter sessions by the act of 1891.

The legislature having authorized the incorporation of the applicant in this case, with the right to engage in the business <of brewing, and to purchase and hold property for that purpose, its business methods are beyond our consideration. While a business of limited scope is authorized by the state treasurer’s license, it is better for the community that the granting of licenses for’a business not thus restricted should be under the control of the courts. No good reason appears why two or more breweries, which may be conducted by different persons, should not be conducted by the same person. No public interest, requiring the intervention of the police power, is in any way affected by a single ownership. If, however, the operation of thirteen breweries by one company, instead of by thirteen individuals or companies, shall prove injurious to the public, it is for the legislature to apply a remedy. The courts cannot on this ground refuse the license provided by law for the business which the applicant is by law authorized to conduct.

Judgment affirmed.

Beaver and W. W. Porter, JJ., concur in the foregoing opinion.