Commonwealth ex rel. Allegheny County v. Hendley

Opinion by

Wickham, J.,

The defendant, a restaurant keeper, was sued and convicted, before an alderman, for violation of the Act of May 21, 1885, P. L. 22, prohibiting the sale of imitation butter, etc. In his petition to the common pleas, for the allowance of an appeal, he alleges, in effect, that while he sold his bread, meat, coffee and other articles of food to his patrons, he generously gave away his oleomargarine. To use his own words, “ for the accommodation of his patrons he had a large bowl at all times containing small platters of butter or oleomargarine, in large or small numbers, as they might require, for which no price was asked.”

This defense was duly presented to the alderman, and he, doubtless being satisfied, from a consideration of the evidence offered on both sides, that it was the same old and threadbare subterfuge so often unavailingly resorted to by unlicensed liquor dealers, and that the transaction was in reality a sale, although pretendedly a gift, found against the defendant. Parenthetically we may observe, that the guest who would frequently resort to the defendant’s place, to eat nothing but oleomargarine would doubtless soon find out, that it was not on the free list.

In view of the decisions of our Supreme Court in Commonwealth v. Miller, 131 Pa. 118, and Commonwealth v. Weiss, 139 Pa. 247, the law is now settled, that a public caterer, who, for gain, furnishes oleomargarine as part of a meal to his guests, is subject to the penalty provided by the act of assembly.

Merely in order to have another trial, in another forum, and so far as we can see, on the same evidence, the defendant asked the court below to allow him an appeal. To secure such appeal, proper cause should be shown: Act of April 17, 1876, P. L. 29; McGuire v. Shenandoah, 109 Pa. 613; Commonwealth v. Eichenberg, 140 Pa. 158. In Thompson v. Preston, 5 Pa. Superior Ct. 154, it was said: “ Ordinarily an appeal should not be permitted if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved, or there is something to indicate oppression, corruption, or disregard of law on the part of the magistrate, or after-discovered evidence which would justify a new trial under the well-known rules, relating to new trials, for that cause. Neither art. V., sec. 14 of the constitution nor the act of 1876, which was passed to carry it into effect, contemplates that an appeal should be allowed merely, because the party desiring it is dissatisfied with the result of the trial before the magistrate, as is the case with most defeated litigants, and cheers himself with hopes of better success in the next encounter.”

The whole matter rests in the sound discretion of the court below. In the case before us the proceedings appear to be 2'egular; there is nothing to even suggest an abuse of such discretion, hence we cannot say that the de2iial of the appeal was wrong. Without going outside of the record proper, we cannot know just what was considered by the court below. It had the right to look at the evidence offered before the magistrate, in behalf of both the Co2mnonwealth and the defendant, and other matters which may not be examined into here, as the appeal to this court must be regarded as a substitute for a certiorari.

The order of the court below is affirmed at the appellant’s cost.