Paul R. Selecky, Special Deputy Attorney General, Horace A. Segelbaum, Deputy Attorney General, T. McKeen Chidsey, Attorney General, for appellant.
Louis Geo. Feldman, Hazleton, Vance L. Eckersley, Scranton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.
[ 166 Pa. Super. Page 49]
The Liquor Control Board refused to renew Walter H. Whitford's restaurant liquor license, and he appealed to the court below which, first, dismissed his appeal but, upon reconsideration, reversed the board and directed it to renew the license. The board brought the case here.
The facts have been stipulated. In May 1947 Whitford requested the board to furnish information 'relative to the quota and present number of beer and liquor licensed establishments of the boroughs of Chinchilla, Clark Summit, and Dalton all of which are situated in Lackawanna County.' The board advised him that the quota for Clark Summit was filled but that there were vacancies in 'both Dalton Borough and Abington Township (in which the town of Chinchilla is located).' Whitford applied for and the board issued a license for the
[ 166 Pa. Super. Page 50]
year beginning August 1, 1948, for premises which he described as located in Abington Township. Both he and the board were mistaken. Chinchilla is not a borough and it is located in South Abington Township, not Abington Township. The board discovered the mistake when the treasurer of Abington Township returned the license fee which the law required the board to remit to the township in which the licensed place is located and informed the board that Whitford's place was in South Abington Township. The number of licenses in South Abington Township exceeded the quota at the time Whitford's license was issued, and the board refused to renew his license in 1949.
The Quota Law of June 24, 1939, P.L. 806, § 2, 47 P.S. § 744-1002, provides: ' No new license shall hereafter be granted by the Pennsylvania Liquor Control Board for the retail sale of * * * beverages, in excess of one of such licenses, of any class, for each one thousand inhabitants or fraction thereof, in any municipality, * * * but where such number exceeds the limitation prescribed by this act, no new license * * * shall be granted so long as said limitation is exceeded.' (Emphasis added.) Under that explicit language the board was entirely without authority to grant a restaurant license for a place in South Abington Township. Granting the license was an illegal act, and the board had no power to perpetuate the illegality by renewing it. Spankard's Liquor License Case, 138 Pa. Super. 251, 260, 10 A.2d 899; McGettigan's Liquor License Case, 131 Pa. Super. 280, 200 A. 213.
The learned court below found justification for its decision in the Act of May 20, 1949, Act No. 469, § 2, 47 P.S. § 744-404, which in part provides: 'In considering the renewal of a license, the board shall not refuse any such renewal on the basis of the propriety of the original issuance or any
[ 166 Pa. Super. Page 51]
prior renewal of such license.' (Emphasis added.) The court suggested: 'Perhaps a rather fine point of distinction may be drawn between 'propriety' and 'illegality' as it affects the initial issue of this license', and concluded 'that the language of the Act includes the situation presented by the case at Bar.' That is to say, it found that 'propriety' and 'legality' were virtually synonymous, and ...