tion on either of those grounds appears, the court must grant the license.

2. The provision in the wholesale license act of 1887, that licenses shall be granted "in such manner as is provided by existing laws," does not confer on the quarter sessions the discretion to grant or refuse licenses, conferred by act May 13, 1887, (P. L. 108,) relating to retail liquor licenses, the ob ject of which was to regulate and restrain the sale of liquor to the consumer.

3. Where there is no remonstrance filed or ob

jection made to an application under the act of May 24, 1887, the proceedings of the quarter ses sions thereon are reviewable by the supreme court on certiorari.

Certiorari to court of quarter sessions, Allegheny county.

James R. Sterrett, Kennedy & Doty, Henry R. Ewing, Chas. F. McKenna, and D. T. Watson, for plaintiff in error.

and shall be for one year from a date fixed by rule or standing order of said court. The said court shall fix by rule or standing order a time at which applications for said licenses shall be heard, at which time all persons applying or making objections to applications for licenses may be heard by evidence, petition, remonstrance, or counsel: provided, that, for the present year, licenses may be granted under previous laws at any session fixed by said court not later than June 13th: provided, further, that it shall not be lawful for any rectifier, compounder, wholesale dealer, store-keeper, agent, or bottler, to sell in less quantities than one quart, and distillers, brewers, and manufacturers shall not sell in less quantities than one gallon. Sec. 3. That all bottlers within the commonwealth shall be required to procure license from the court of quarter sessions of the respective counties in which they are located, in the manner provided for in the second sec

sum of two hundred dollars in cities of the first, second, and third class; one hundred dollars in all other cities, boroughs, and townships: provided, that no bottler shall be permitted to sell spirituous, vinous, malt, or brewed liquors, to be drank upon the premises where sold, nor at any place provided by such sellers for such purpose.

PAXSON, C. J. The plaintiff in error presented her petition to the court of quarter sessions of Allegheny county, praying for a license to sell liquors at wholesale, at No. 1044 Penn avenue, in said city, The petition of this act, for which they shall pay the tion was in proper form, and it was not denied that she had complied with all the requirements of the law. Upon the hearing of her petition, there was no remonstrance or objection to the granting of her license, or to the form of her petition or bond. The court below refused her application, and also declined to grant a rehearing. The record, which has been brought up by the writ of There are two things to be noticed in the certiorari, fails to disclose any remonstrance second section above quoted. They are (a) filed or objection made to her application. that licenses shall be granted by the court of Under such circumstances, is the case re-quarter sessions in such manner as is proviewable here? We decided in Raudenbusch's Petition, 120 Pa. St. 328, 14 Atl. Rep. 148, that the granting of a license to sell liquor at retail, under the act of May 13, 1887, (P. L. 108,) was within the discretion of the quarter sessions, and not reviewable upon certiorari. The court below applied the doctrine of that case to applications for licenses made under the act of May 24, 1887, (P. L. 194,) "providing for the licensing of wholesale dealers in intoxicating liquors." The narrow question presented for our consideration is whether, under the act relating to wholesale licenses, the court has the same discretion to grant or refuse a license as it has under the prior act relating to retail licenses. It requires but a glance at the two acts to see that their object is essentially different. The retail act of May 13th was intended to restrain the sale of liquor. This clearly appears from its title, which reads: "An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof." This was the construction placed upon this act in Raudenbusch's Petition, supra. The act of May 24th, providing for wholesale licenses, was a revenue act. There is not a word in it to indicate any intention of restraining the sale of liquor. The second and third sections of said act are as follows: "Sec. 2. Licenses shall be granted only by the court of quarter sessions of the proper county in such manner as is provided by existing laws,

vided by existing laws; and (b) that applications for licenses may be heard by evidence, petition, remonstrance, or counsel. From the latter proposition it may be argued with some force that the court has a discretion in the matter of wholesale licenses, for of what use would it be to hear an application by "evidence, petition, remonstrance, or counsel," unless the court has the power to decide, that is, to grant or refuse such application, All this is conceded. The court has a discretion in such cases. It will be our purpose to define the character of that discretion, and its extent. As preliminary to the discussion of this point it is proper to refer to that portion of the second section (a) which provides that licenses shall be granted by the court "in such manner as is provided by existing laws." What existing laws are here referred to? Clearly, the existing laws in regard to wholesale licenses. I know that the opinion has prevailed in some quarters that the effect of these words is to read into the wholesale act several sections of the previous retail act. This construction is so palpably erroneous that it would be a waste of time to discuss it. There is no reference in the one act to the other. The act in force in the county of Allegheny in May, 1887, in regard to wholesale. licenses, was the special or local law of April 3, 1872, (P. L. 843,) applicable to Allegheny county only, which provides, inter alia, that "the treasurer of said county shall annually, upon payment to

priately added. As before observed, the ob ject and leading thought in the former act was to restrain and regulate the sale of liquor; that is to say, to restrain its sale to the consumer. It was for such reason that a large discretion was conferred upon the quarter sessions. If we contrast the second

him of the license fees and the receiving of the bond hereinafter mentioned, grant the license hereinafter specified to citizens of the United States, of temperate habits and good moral character," etc. The act of May 24, 1887, contains no repealing clause. The act of 1872 is not repealed in express terms or by necessary implication, so far as regards whole-section, above quoted, of the wholesale act, sale licenses, excepting to the extent that the with the seventh section of the retail act, the one act is supplied by the other. Thus the act difference between them is palpable. The of 1887 declares that wholesale licenses shall said seventh section is as follows: "The said be granted by the court of quarter sessions court of quarter sessions shall hear petitions instead of by the county treasurer; it pro- from residents of the ward, borough, or vides for a hearing by the court of applica- township, in addition to that of the applicant, tions for such licenses; makes a different in favor of such remonstrance against the classification of vendors, and fixes a differ-application for such license, and in all cases ent rate to be paid. But it imposes no qual- shall refuse the same whenever, in the opinifications upon applicants for wholesale ion of the said court, having due regard to licenses. It does not even require that they the number and character of the petitioners shall be citizens of the United States, or that for and against such application, such license they shall be persons of temperate habits, or is not necessary for the accommodation of the good moral character. Where are we to look public entertainment of strangers or travelfor these qualifications? Certainly not in the ers, or that the applicant or applicants is or retail act, which has nothing whatever to do are not fit persons to whom such licenses with it, but in the existing laws in regard should be granted; and upon sufficient cause to wholesale licenses, to-wit, the act of being shown, or proof being made to the 1872. There is nothing in the act of 1872, said court that the party holding a license which, as before observed, is a local act, ap- has violated any law of this commonwealth plicable only to the county of Allegheny, to relating to the sale of liquors, the court of indicate that any other qualification was req-quarter sessions shall, upon notice being uisite for a wholesale dealer than those above given to the person so licensed, revoke the mentioned, or that any discretion existed in said license." We cannot incorporate or the court of quarter sessions to refuse such read into the wholesale act the above section license, except for cause, and such cause of the retail act, for the reason that we are must relate to one of three things, viz., cit- not clothed with legislative powers. Moreizenship, character, or sobriety. It follows over, it is.inapplicable to wholesale licenses. that a citizen of the United States, of tem- What has the court to do with the question perate habits and good character, who pre- whether a particular wholesale license is sents his application for a wholesale license necessary for the accommodation of the in due form, and who has complied with the public and entertainment of strangers or requisites of the law, has prima facie a right travelers? In the case of a retail license, the to such license. In the absence of anything court may well inquire-indeed, it is its duty upon the record to impeach such right, it is to do so-whether the public accommodation the duty of the court to grant it. If a re- in the particular ward, street, or block remonstrance is filed, setting forth that the ap-quires that the applicant shall be licensed. plicant is disqualified for either of the three causes above stated, it is the duty of the court to hear the case, and, if the remonstrance is sustained by evidence, to refuse a license. Such case is not reviewable here, for the reason that it would be a proper exercise of the discretion conferred upon the court by the act of May 24, 1887. But the discretion goes no further. It does not extend to an arbitrary refusal of a license. I use the word "arbitrary" in no offensive sense, but to indicate the refusal of a wholesale license for reasons other than those above indicated. The learned judge below has performed a thankless and most unpleasant duty, and we are satisfied he has done so without fear or favoritism. But we are compelled to differ from him in our construction of the act of assembly referred to.

The whole theory upon which retailers are licensed, and it is the theory of the law, is that they are needful for the public accommodation; to provide places where strangers and travelers may rest, and procure needed refreshments. Hence it may very well be, as was said in Raudenbusch's Petition, supra. that, "if a ward had one hundred public houses where only fifty are required by the public wants, it is plain that fifty houses must be denied licenses, although every one of the applicants is a worthy man, and keeps a respectable house, and although there be neither remonstrance nor objection on the score of want of fitness." None of this reasoning applies to a wholesale license. It is not granted for the convenience of a particular neighborhood, nor for the accommodation of strangers or travelers. Nor An extended argument is not needed to does it matter where the place of business is show that the discretion conferred upon the located. If all the wholesale liquor houses court by the retail act of 1887 does not ex- in Pittsburgh were in a single block, it tend to the wholesale act. A few words would make no difference, and would be no upon this subject, however, may be appro-objection to their being licensed. Their busi

v.17A.no.18-69

whether the applicant is (1) a citizen of the United the quarter sessions is confined to the inquiry States, (2) of temperate habits, and (3) of good moral character, and in the absence of an objection on one of those grounds the court must grant the license. Following In re Pollard, ante, 1087.

ness is not confined to any particular locality. | dealers in intoxicating liquors," the discretion of On the contrary, it is general, and we may fairly infer, from the knowledge of trade which every intelligent man possesses, that but a small portion of the sales of a wholesale house is confined to the city or place in which it is located. How, then, would it be pos-native mandamus to grant a license to a corporasible for a judge to intelligently exercise a discretion as to the need of a wholesale house in a particular location? The power to close up large establishments, such as breweries, distilleries, and wholesale liquor houses, where perhaps hundreds of thousands of dollars are invested therein, is too vast to be exercised by any man or any court, excepting upon the clearest grant of legislative authority. It cannot be done upon mere implica

tion.

|

2. The return by the quarter sessions to an altertion, which had been refused under the act, recited that the court "deemed it to be its duty to dethe United States, of temperate habits, of good termine whether the applicants were citizens of moral character, and fit persons to receive a license." To a statement in the petition for mandamus of testimony given on the application for license, the return recited that such statement was "incomplete, inaccurate, and misleading," without stating in what respect it was defective. It then stated that during the year then expiring to sell to unlicensed dealers, to be by them sold in the petitioner had brewed an intoxicating liquor, violation of law, and that it had induced the unlicensed dealers to buy it by false representations, but the return did not state what such false representations were. The liquor so sold by petitioner was shown to contain only little more than 1 per cent. of alcohol, and petitioner's license authorized it to sell to any one. The return then stated that conducted its business during the year then exthe court found "(a) that the said company had piring, in violation of law; * * (b) that said company was not a fit person to receive the license applied for; and (c) that, so far as it was possible for a corporation to possess any moral character, it did not possess a good moral character." The

Held, that the return was insufficient, as it was required to show certainty to a certain intent in every particular; and as it considered disqualifications not authorized by law, and a corporation could have no character of any kind, a peremptory mandamus should be granted.

On petition for mandamus.

William F. Johnson, Furman Shepard, and George W. Biddle, for petitioner. John G. Johnson, for respondents.

We are in no doubt as to our power to revise the proceedings below upon this writ. This court possesses and exercises the powers of the king's bench, and it was said of them by the late SHARSWOOD, in Commissioners' Appeal, 57 Pa. St. 452: "It is beyond all question that under these extensive powers this court is authorized to examine and review the proceedings of the court of quarter sessions in any matter specially committed to it by statute, so far as to inquire and deter-law alleged to have been violated was not shown. mine the extent and limits of its power, and the regularity of its exercise. It is equally clear that the proper mode of asserting this jurisdiction is by bringing the records of its proceedings before us for inspection by a writ of certiorari." And it was held by the court of errors and appeals of New York in People v. Board, 39 N. Y. 81, in speaking of the writ of certiorari, "that its office extends unquestionably to the review of all questions of jurisdiction, power, and author- PAXSON, C. J. This was a writ of alterity of the inferior tribunals to do the acts native mandamus directed to the judges of complained of, and all questions of regu- the court of quarter sessions of Philadelphia, larity in the proceedings; that is, all ques- holding the license court, commanding them tions whether the inferior tribunal has kept to show cause why they should not grant the within the boundaries prescribed for it by the petitioner a brewer's license. The petition express terms of the statute law or by the upon which the alternative writ was allowed well settled principles of the common law." sets forth, inter alia, that the Prospect BrewThe granting of wholesale licenses is a mat-ing Company is a corporation duly chartered ter specially committed by the act of assem- under the laws of this state for the purpose bly to the courts of quarter sessions. Upon of the brewing of all kind of malt liquors, the writs of certiorari we may review their proceedings so far as to see whether they have kept within the limits of the powers thus conferred, and have exercised them in conformity with law. We are of opinion that those powers have been exceeded in this instance, and that upon the face of this record the petitioner was entitled to her license. The order of the court below refusing it is reversed, and a precedendo awarded.

and the sale thereof; that the capital stock of said corporation is $200,000, which has been fully paid up; that its business plant, consisting of real estate, apparatus, utensils, and other property, is of the value of $630,000; that "the annual product of the brewery of the petitioner, the said company, is very considerable, consisting of about thirty-five thousand four hundred barrels, of which quantity about two million bottles are bottled for domestic consumption and export, the same being distributed by exportation to Canada, Mexico, Porto Rico, Rio Janeiro, Buenos Ayres, Montevideo, and through the United States, by means of agents in San Francisco, Cal., Savannah, Ga., Charleston, S. C., Charlotte, Raleigh, N. C., Jacksonville, Fla., Norfolk, Richmond, Va., Baltimore, Md., Camden, Newark, Sea Isle, Atlantic City, N.

*

J., Boston, Mass., and somewhat less than | In the case in hand the value of the brewery, one-third of the whole product is sold and with its stock, fixtures, etc., was, as before consumed in the city of Philadelphia; the said company employs seventy workmen and employés, with an annual wage list of $54,000; that for several years last past it has been licensed as a brewery, including the year 1888; that the petitioner filed its application to the court of quarter sessions of the county of Philadelphia for a renewal of its license for the year beginning the 1st day of June, 1889, under the provisions of the act of May 24, 1887, entitled 'An act providing for the licensing of wholesale dealers in intoxicating liquors;' * * that upon the 7th, 8th, and 9th days of May, 1889, a hearing was had upon the said petition, and no remonstrance or objection, so far as is known to your petitioners, or as appears by entries and records of the said court, was presented or made by any one to the granting of the said license." The petition then proceeds to narrate at some length an inquiry which occurred in court upon the hearing as to one of petitioner's employés having sold an article of drink called "Ambrosia," which appears to have been a light form of beer. We need not give this at length, as it is of very little importance, and is referred to hereafter in connection with the return to the writ.

stated, $630,000. The refusal of a license leaves the plant and stock comparatively worthless. The former is of little use for any other purpose, while the latter cannot be sold without a violation of law. Under such circumstances, it is but reasonable that the action of the court should be in such shape as to be reviewable here, and to show that the refusal of the license was the exercise of a sound judicial discretion, expressly authorized by law. It follows from what has been said that had this case been brought here upon a writ of certiorari it would necessarily have been reversed. In this respect it differs widely from an application for a retail license, and the reason is that in the latter instance the discretionary powers of the court are much broader. The license may be refused not only because the court regards the applicant as an unfit person to sell liquor, or, if fit, that his house is not needed in the particular neighborhood for the accommodation of strangers and travelers. The present case, however, is here upon an application for a mandamus, which involves considerations not referred to in Pollard's Case.

It is perhaps unfortunate that in cases of so much magnitude, involving very large The underlying principle of this case- pecuniary interests, no orderly mode of practhat is, the right of a brewer or wholesale tice has been prescribed by the act of assemdealer to a license-has been fully considered bly or adopted by the courts. The licensing and decided in Re Application of Mary E. of wholesale dealers has heretofore been rePollard for a wholesale license. That was a garded so much as a matter of course that certiorari to the quarter sessions of Allegheny but very few cases have reached this court county, and the opinion is now filed with under prior acts of assembly. In the meager this case. I do not propose to reargue the reports of the one or two cases which have questions there decided. I shall refer to reached us it is difficult to gather the facts, them merely to state the points and rulings and the per curiam opinions fail to show that involved. We there held that, in granting the distinctions between wholesale and retail license to wholesale dealers, bottlers, and dealers have ever been called to our attenbrewers under the act of 24th of May, 1887, tion. We do not find anywhere any allusion (P. L. 194,) the court of quarter sessions has to the proper mode of procedure in the matnot the large discretion conferred upon it by ter of applications for a wholesale license. the retail act 13th May, 1887, (P. L. 108;) This is the first case that has come up under that the discretion conferred by the wholesale the act of 24th May, 1887, and a careful exact is a qualified, limited, discretion, and is amination of said act leads us to the conconfined to the inquiry whether the applicant clusion, as we have decided in Pollard's Case, for a wholesale license is a citizen of the that, in the absence of any remonstrance or United States, of temperate habits and of objection upon the record, it is the duty of good moral character. As no remonstrance the court to grant a wholesale license, and or objection appeared upon the record of that the objection must be limited to the three case, alleging that the petitioner was dis-disqualifications already alluded to. As a qualified for either of the reasons above matter of practice, such remonstrance or obstated, we reversed the order of the court be- | jection should be in writing, and placed upon low refusing a license, as we also did a num- the record. In such case, the action of the ber of other like cases submitted at the same time. It scarcely needs an argument to show the propriety of this ruling. If the record does not disclose the reason for the refusal, it would be impossible to review the action of the court below, either upon a writ of certiorari or other process, no matter how illegal or even arbitrary the action of the court might be, or how vast the interests which are thus stricken down. As to such matters a quarter sessions judge would sit as absolute a despot as the emperor of China.

court below can be reviewed here in an orderly manner. When a remonstrance is filed, it forms, with the petition, the pleadings in the case. There is then an issue of fact before the court, to be decided, as in other cases, upon the evidence. If the evidence sustains the remonstrance, it is the plain duty of the court to refuse license. That would be the exercise of a lawful, judicial discretion, with which this court would hesi tate to interfere. When the application of the petitioner came up for consideration in

the court below, there was neither remon- of 24th May confers no such power upon strance nor objection upon the record against them. It is incorporating into the wholesale the granting of the license. There was no act a provision of the retail act. The key to issue before the court. There was no dis- the whole difliculty may perhaps be found in puted question of fact for it to decide, and the this assumption of a discretion in wholesale act of 24th May, 1887, does not confer upon license which is not found in the law, and is the court of quarter sessions the powers of a applicable only to the case of retailers. The roving commission to inquire as to matters fitness of a man to have a wholesale license not properly before the court, and in no way depends upon his possession of the three connected with the petitioner's right to a qualifications before mentioned; not upon the brewer's license. As there was no issue be- opinion of the court upon other matters outfore the court, it follows necessarily that side of them. there could have been no legal trial, and, as there were no disputed questions of fact, there could have been no valid findings of fact. We might well, therefore, without more, discard the entire return of the learned judges of the quarter sessions to the writ of alternative mandamus.

It appears that at the hearing in the court below the main question was as to the manufacture and sale of a mild form of beer, called "Ambrosia," and upon the petition for the writ of alternative mandamus the petitioner sets out at some length the testimony that was given in regard to it, with That we may not seem wanting in respect the names of the witnesses, from which it to them, I will proceed to its consideration; appeared that the alcoholic strength of the and, first, I will refer briefly to the principles said beer was from 14 to 13 per cent, only; of law which govern the return to such writs. that Dr. Henry Leffinan was then called There is no form of pleading known to the as a witness by the court, who testified to law in which greater certainty is required having examined Ambrosia chemically, and than in a return to a writ of mandamus. corroborated the evidence of the petitioner It requires, not only the greatest possible cer- as to its alcoholic strength. Much more was tainty, not merely certainty to a common alleged in the petition to which it is unnecintent, or certainty to a certain intent in gen-essary to refer. To this matter the court beeral,—but certainty to the greatest possible low makes return: "The statement of testiintent; or, as it is sometimes called, certainty mony made in the petition of the relators is to a certain intent in every particular. King incomplete, inaccurate, and misleading." v. Mayor, 1 Ld. Raym. 559; Bac. Abr. This return, under all the authorities, is "Mandamus, "1 K.; Rex v. Liverpool, 2 Bur- clearly insufficient. See Reichenbach v. Rudrows, 731; Tapp. Mand. 393; Harwood v. dach, supra. In what respect was it inaccuMarshall, 10 Md. 452; Reichenbach v. Rud-rate or misleading? Conceding that the redach, 121 Pa. St. 18, 15 Atl. Rep. 488; Com. v. Commissioners, 37 Pa. St. 277; Rex v. Malden, 2 Salk. 431. The reason for this strictness is that at the common law the return could not be traversed. However that may be now in some cases, the rule is prac-states: "The court did find from the evitically the same in the present instance. We all agree that we are bound by the return to the writ, and that if it discloses a sufficient ground to refuse the license we can go no further. It follows that the common-law rule as to the certainty of the return must be applied.

Keeping this in view, and also the fact that the objections to the petitioner's application must be confined to the questions of (1) citizenship, (2) temperate habits, and (3) good moral character, I will briefly consider this return. As preliminary, the judges say: "Before deciding said applications, said court deemed it to be its duty to determine whether the applicants were citizens of the United States, of temperate habits, of good moral character, and fit persons to receive a license." The first three matters were proper subjects of inquiry. If there was objection made upon either of these grounds, it was the plain duty of the court to hear the evidence and decide. As to the part of the return I have italicised, it was a matter with which the court below had nothing to do in the case of an applicant for a wholesale license. They have nothing to do with it, because the act

spondents were not required to return the evidence, yet, if they attempt to negative an averment in the petition by their return, it must be done with the certainty required in this form of pleading. The return then

dence that during the year of its license then about to expire the said company, through its chief executive officers, who had been charged with the conduct of its business, had caused to be brewed an intoxicating malt liquor for the purpose of selling the same to unlicensed dealers in the city of Philadelphia, to be by the latter again sold in this city in violation of the laws of the common wealth; that said intoxicating malt liquor thus brewed by said company had been sold by it to numerous unlicensed dealers, in the expectation that the same would be sold by them in this city in violation of law; that through its said officers said company, by false representations as to the character of said liquor, had induced divers unlicensed dealers to purchase the same from it; and that said liquor thus purchased had been sold in the city of Philadelphia by said unlicensed dealers." It is to be observed that this return is entirely outside of the case. It has no bearing upon either of the three qualifications required for a wholesale dealer, and, at best, refers to a rambling inquiry, not properly before the court. The license which the company held authorized them to manufact