Cox's License

Opinion by

Kephart, J.,

The court below refused this license to sell liquor in quantities not exceeding one quart for two reasons. The first is considered in the opinion filed by President Judge Bice in the appeal of Howard A. Keim, filed this day, and the second may be stated in the language of the court below as follows: The electors who signed the applicant’s certificate attached to the petition “were dominated by the purpose of the repealed Acts of 1834 and 1856, — that the hotel, inn or tavern is the primary matter and the license to sell intoxicating liquors at retail an incident to it, and equally clear that the concept of the Act of 1887 has not been considered by them.’’ If this reason, which influenced the court below in the exercise of its judicial discretion, was based on an erroneous conception of the law, this court will grant relief: Windber Brewing Company’s App., 54 Pa. Superior Ct. 287.

In construing the Act of 1887, the petitioner was held to a very rigid rule not warranted by the act or the decisions of the appellate courts. We held in the Appeal of Meenan, et al., 11 Pa. Superior Ct. 579; Knoblauch’s License, 28 Pa. Superior Ct. 324, and Reznor’s Hotel License, 34 Pa. Superior Ct. 525, that under the Act of May 13, 1887, P. L. 108, it was not necessary to aver in the petition for license that the place to be licensed was necessary as a hotel, inn, or tavern, or that it had for the exclusive use of travelers at least four bedrooms and eight beds; and that when the applicant kept a hotel, inn or tavern within the requirements of the Acts of 1834 and 1856, he was not entitled, as a matter of law, to such license; and that a license, under the Act of 1887 was not a license to keep an inn or tavern but a license to sell at retail intoxicating liquors in quantities less than a quart.. We have not held, nor does the Act of 1887 require us to hold, that the court below in determining whether the license is necessary “for the accommodation of the public and' the entertainment of strangers or travelers,” that it must look solely to the “necessity for the sale of liquor”, apart from, and independent of the adaptability of the place as a “public house of entertainment for all who choose to visit it and which has some provision for the needs of a traveler upon his journey, namely, lodging as well as food.” That such consideration would be helpful to the court in the exercise of its discretion cannot be questioned. While the court may limit its inquiry solely to this necessity for the sale of liquor, yet the act does not prohibit the petitioner and his certifiers from pressing on the court the necessity for hotel accommodations in the community, coupled with the privilege of selling intoxicating liquors as prayed for under the statute.

As stated in Reznor’s Hotel Company’s License, supra, “The court may very properly receive and consider evidence as to the kind of place that is to be kept, whether hotel, eating house or saloon......It may be conceded that proof that the applicant’s place is necessary for the accommodation of the public and the entertainment of travelers goes very far to move in a proper way the discretion of the court and to warrant its inference that the license applied for is necessary.” And as stated in Pollard’s Petition, 127 Pa. 507, 521, “The whole theory upon which retailers are licensed, and it is the theory of the law, is that they are needed for the public accommodation and to provide places where strangers and travelers may rest and procure needed refreshment.”

The Act of 1887 must not be construed so as to compel judicial injury to be directed solely to mere drinking places. If the court may, as an aid to the exercise of its judicial discretion, call to its assistance these facts, there is no good reason why they may not be incorporated as a part of the applicant’s petition for license, nor should there be any objection to the certifiers to the petition, in passing on the truth of the matters contained in the petition, considering, among the reasons which may suggest themselves to their minds why the license to sell liquor should be granted, these facts set forth in the petition. Such consideration would not destroy the necessary jurisdictional facts averred in the petition, but would tend to sustain them. The profession and the bench have recognized for many years that the most efficient method of restraining and regulating the sale of liquor under the Act of 1887, is to require proof of necessity for a license, to sell liquors as being associated with the entertainment of the “traveling public.” While its consideration is not an indispensable requisite, its averment in the petition and its considerátion by the certifiers will not invalidate the petition. As we view it, the statements of the certifiers which are set forth in the opinion filed by the court below, are not inconsistent with the requirements of the Act of 1887. Their statements are rather in affirmation of the facts that the license is necessary for the accommodation of the public. It is a persuasive reason why the privilege to sell liquor should be granted. It does not place hotel accommodations as of primary importance, but these accommodations are made to depend on the granting of the license without which the accommodations would not exist. The license does not, therefore, become incidental to the hotel, but the hotel is incidental to the license. A petition is not necessarily defective, which includes more than is required by the statute, unless it is plainly misleading, which is not the case with this petition. The appellant, when he filed his petition, relied on the good faith and common, ordinary knowledge of those who certified to his application, and unless through fraud these electors were misled and induced to sign the petition, their secret motives or mental attitude with respect to the sale of liquor should not be inquired into. It opens up a very wide field.

For the reasons here given ánd those assigned in the opinion of Judge Rice as above noted, this day filed, the order of the court below is reversed and a procedendo awarded.