Petition of Raudenbusch

Opinion,

Mr. Justice Paxson :

The petition in this case sets forth that the petitioner resides at No. 18 North Twelfth street, in the Ninth ward of the city of Philadelphia, and has for the last five years carried on the business of selling liquor at retail, at the said house, having been licensed to carry on said business in conformity with the laws of tbis commonwealth, heretofore existing; that being desirous of continuing said business, he presented his petition to the Court of Quarter Sessions, in conformity with the terms of the act of assembly of May 13, 1887, praying for a license to sell at retail vinous, spirituous, malt, or brewed liquors for the period of one year from June 1, 1888; that he has complied strictly and in every respect with said act, and that he possesses all the qualifications required thereby; that “no evidence, petition, remonstrance or statement of counsel, or of any other person whatever, being made or offered, or any objection of any kind being made against him or his said application, he was permitted to depart and was dismissed from any further hearing ”; that on the second day of April, 1888, it was announced by the said judges of the said court that the said application or petition of the petitioner had been refused.

The petitioner prays this court “ That the said judges of the said court of Quarter Sessions who heard his said application and petition, and who refused to grant the same, may be commanded, first, by an alternative mandamus, to show cause why the prayer of said petition or application should not be granted, and secondly, by a peremptory mandamus to do fully all that is required to be done by the said act, and justice.” The seventh section of the act of May 13, 1887, under which it is claimed it is the duty of the Court of Quarter Sessions to grant this license, is as folloAvs:

“The said Court of Quarter Sessions shall hear petitions from residents of the ward, borough, or township, in addition to that of the applicant, in favor of and remonstrances against the application for such license, and in all cases shall refuse the same whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers or travelers, or that the applicant or applicants is or are not fit persons to whom such license should be granted; and, upon sufficient cause being shown, or proof being made to the said court, that the partjr bolding 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 the said license.”

It will be noticed that the petition does not aver that the judges of the Court of Quarter Sessions have neglected or refused to act upon his petition. His grievance is, that they have acted and have refused him a license. He now asks that they shall be compelled to show cause why his license should not be granted, and by a peremptory mandamus “ to do fully all that is required to be done by the said act, and justice.” We understand the prayer for relief to mean that if the judges cannot show that the petitioner has not complied with the act of 1887, or tbat a remonstrance has been filed, or an objection made by one or more citizens to the granting of a license to the petitioner, it is the duty of this court to issue a peremptory mandamus to the judges of the Quarter Sessions to compel them to grant such license. The petitioner assumes that he is entitled as a matter of right to a license, upon complying with the provisions of the act of 1887, in the absence of any allegation that he is an improper person to be so licensed. This is the fallacy which underlies his case, as well .as the able argument of his learned counsel. He has no such absolute right, nor has any other man in the commonwealth.

It is not needed to review the license legislation of this state for the last half century. That was thoroughly done by Mr. Justice Agnew in Schlaudecker v. Marshall, 72 Pa. 200. It is sufficient to say that prior to the act of 1887, the law was by no means uniform, there being many local acts in existence differing essentially from each other. In Philadelphia, any citizen could procure a license, .upon payment of the license fee to the county treasurer. In some counties licenses were granted by the Court of Quarter Sessions, where in the opinion of the court the public accommodation required them. The whole history of our license system and the legislation attending it shows that the unrestricted sale of liquor has for a long time been regarded as a great evil. It is one which statesmen, and many earnest men and women, have been wrestling with from the organization of the government. When therefore the legislature came to enact the act of 1887, they were seeking to curb and regulate this evil. This clearly appears from the title of the act. It reads, “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixture thereof.” The mode of restraint adopted by tbe legislature was twofold. One was, to increase the price of the license, by which many saloons would be closed and others rendered more respectable; the other was, to substitute the discretion of the Court of Quarter Sessions for the mere ministerial duty of granting licenses by county treasurers, as it had theretofore existed in Philadelphia and some other places. If the construction of the act contended for by the petitioner be the correct one, then the title of the act should read, “ An act to increase the sale of liquor and to derive revenue therefrom.” In other words, it would give every man in the state the right to sell liquor, who could pay for his license and comply with the act. This would do violence to its letter and spirit.

The petitioner begs the whole case, when he assumes that he has a right to a license because he is a respectable man, has always kept a respectable house, and that no remonstrances have been filed against him. It is an error to suppose that the sole duty of the court is confined to the inquiry whether the applicant is a citizen of the United States and a man of good moral character, etc. Back of all this lies the question whether the petitioner’s house is “necessary for the accommodation of the public and entertainment of strangers and travelers,” and the plain duty of the Court of Quarter Sessions, under the act of assembly, is to so exercise its discretion as to “ restrain ” rather than increase the sale of liquor. W.e do not know how many public houses there are in the Ninth ward; it is not material that we should. We are bound to presume that the judges below have ascertained the number in a judicial manner; that they have in like manner decided how many are necessary for the public accommodation. An investigation of this question has no particular bearing upon the petitioner’s fitness to keep a saloon ; it is a general one, with which he has no more legal concern than any other citizen 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. It may thus happen that licenses are refused to persons against whom there is no possible objection on personal grounds. Thus, if a ward has one hundred public houses where only fifty are required by the public wants, it is plain that fifty houses must be denied license although every one of the applicants is a worthy man and keeps a respectable house, and though there be neither remonstrance nor objection on the score of want of fitness. The denial of a license under such circumstances may seem arbitrary. The trouble is, there are more persons who want to sell liquor than the legislature consider it for the public good to license for that purpose.

I will not consume time with an extended discussion of the right of the judges of the Court of Quarter Sessions to exercise their discretion in the granting of license. It has been exercised by that court almost time out of mind, and the power has again and again been affirmed by this court. This discretion, however, is a legal discretion, to be exercised wisely and not arbitrarily. A judge who refuses all applications for license, unless for cause shown, errs as widely as the judge who grants all applications. In either case it is not the exercise of judicial discretion, but of arbitrary power. The law of the land has decided that licenses shall be granted to some extent, and has imposed the duty upon the court of ascertaining the instances in which the license shall be granted. In order to perform this duty properly, the act of assembly has provided means by which 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 appearance 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. The object of evidence in such cases is to inform the conscience of the court, so that it can act intelligently and justly in the performance of a public duty. While the act of deciding in such cases is perhaps quasi-judicial, the difference between the granting or withholding of a license, and the decision of a question between parties to a private litigation, is manifest. Neither the petitioner nor any other person in tins state has any property in the right to sell liquor.

It is needless to cite the numerous cases in which this court has refused to interfere with the discretion of the Quarter Sessions in regard to licenses. I will refer to Schlaudecker v. Marshall, supra, which is upon all-fours with this, and where the question was raised upon an application for a mandamus to a board of licensers appointed under the act of May 10, 1871, giving to the said board “the same power and authority to grant licenses in the city of Erie as the Court of Quarter Sessions by law now has.” The act then in force was that of March 22, 1867, the first section of which was substantially the same as the seventh section of the act of 1887, so far as the duties of the court are concerned. The petitioner there* as here, averred all that was necessary under the law to entitle him to a license, nor does any remonstrance appear to have been filed against it. The petitioner obtained a rule upon the board, to show cause why they should not grant his application. An answer was put in by the board in which, after specifying the number of applications, the number granted, and the number refused, they said: “ The respondents answer and say that they claim it is not only simply their privilege, but an important duty enjoined on them by law, fully and carefully to examine every application for license, and when they are found to be in form according to the provisions of the act of assembly, that would constitute a prima facie case. Then it becomes the duty of the board, particularly when there are one hundred and thirty-four applications for license to deal out spirituous liquors in a city of a population of about twenty thousand, first, to see if the public interest required that number to be licensed; and, second, is the applicant a person of good repute for honesty and temperance? and, third, has he the necessary house room? These facts the board has to ascertain from evidence or personal inspection, and thereupon to judge and determine upon all the cases submitted to the board. These respondents claim that it is their duty, in discharge of an obligation they owe to the public, not to take the certificate of the twelve citizens as conclusive as to the necessity of the tavern or eating-house for the publio accommodation, as to the honesty and temperance of the applicant, and as to his being provided with house room, but to examine into the matter, and upon a full and careful investigation to decide who shall have license and who shall not. These respondents did decree upon Mr. Schlaudecker’s application and rejected it, and believe they acted in accordance with the law in doing so.” This court, in an elaborate opinion by Mr. Justice Agnew, decided that, upon this state of facts, tbe writ of mandamus was properly refused. See, also, Toole’s Appeal, 90 Pa. 376, as to tbe discretion of tbe court.

Were, we to grant tbe alternative mandamus now prayed for, it would result only in a return thereto by tbe judges of tbe court below that they have considered tbe appbcation of tbe petitioner, and in tbe exercise of tbe judicial discretion conferred upon them by law, have rejected it. Under all our cases such a return would be conclusive, and it would lead to no profitable result to allow tbe writ.

It is therefore denied.