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APPEAL GOODWILL FIRE CO. BETHLEHEM. (GOODWILL FIRE COMPANY BETHLEHEM LIQUOR LICENSE CASE.) (01/12/50)

January 12, 1950

APPEAL OF GOODWILL FIRE CO. OF BETHLEHEM. (GOODWILL FIRE COMPANY OF BETHLEHEM LIQUOR LICENSE CASE.)


COUNSEL

Carl A. Cassone, Allentown, Robert T. McCracken, Philadelphia, Stewart P. McConnel, Beaver, for Midland American Croatian Club, amicus curiae, also Louis Geo. Feldman, Wilkes-Barre, James J. Davis, Jr., Philadelphia, and William T. Dom, Greensburg, for Veterans of Foreign Wars of the United States, Dept. of Pa.

Linn H. Schantz, Deputy Attorney General, Horace A. Segelbaum, Deputy Attorney General, T. McKeen Chidsey, Attorney General.

David B. Pitler, Pittsburgh, for Retail Liquors Dealers of Pennsylvania, amicus curiae.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, and Arnold, JJ.

Author: Hirt

[ 166 Pa. Super. Page 43]

HIRT, Judge.

Goodwill Fire Company is a reputable and bona fide incorporated club of the City of Bethlehem. In all respects it is a club as defined in § 2(j) of the Beverage License Law of December 20, 1933, P.L. 75, as last

[ 166 Pa. Super. Page 44]

    reenacted and amended by the Act of July 24, 1941, P.L. 480, 47 P.S. § 85. On June 6, 1949 this club made application to the Pennsylvania Liquor Control Board, for a club Retail Dispenser License for the premises occupied by it on Vineyard Street in the City of Bethlehem. After hearing on the petition by the Board the application for license was refused on August 24, 1949. In the appeal by the club to the court below, it was stipulated that the population of the City of Bethlehem as established by the last census is 58,490; that there are 66 licenses in the city chargeable against the city's quota under § 2 of the Act of June 24, 1939, P.L. 806, 47 P.S. § 744-1002. The number did not include existing licenses which had been granted to hotels and clubs. Although the Board refused the license in the exercise of a general discretion authorized by § 6(a) of the Beverage License Law, 47 P.S. § 89(a), supra, it was stipulated, also, in the appeal to the lower court that 'The legal question at issue, based on the above facts, is whether or not a club Retail Dispenser License is one of the types of licenses limited in number by the provisions of the 'Quota Law', supra. The lower court by opinion filed decided the question against the appellant and dismissed the appeal on September 26, 1949. In this, the club's appeal from that order the same single question involved, as restated by appellant, is whether 'a Club Retail Dispenser License is one of the types of licenses limited in number by the provisions of the 'Quota Act'. It is not disputed that the number of retail licenses theretofore granted to restaurants and eating places in the City of Bethlehem exceeded the limitation of such licenses under the Quota Act.

Section 2 of the Quota Act, supra, provides: 'No licenses shall hereafter be granted by the Pennsylvania Liquor Control Board for the retail sale of malt or brewed beverages, or the retail sale of liquor and malt or brewed beverages, in excess of one of such licenses, of

[ 166 Pa. Super. Page 45]

    any class, for each one thousand inhabitants or fraction thereof, in any municipality, exclusive of licenses granted to hotels, as defined in this act, and clubs ; but at least one such license may be granted in each municipality, except in municipalities where the electors have voted against the granting of any retail licenses. Nothing contained in this section shall be construed as denying the right to the Pennsylvania Liquor Control Board to renew or to transfer existing retail licenses of any class, notwithstanding that the number of such licensed places in a municipality shall exceed the limitation hereinbefore prescribed; but where such number exceeds the limitation prescribed by this act, no new license, except for hotels as defined in this act, shall be granted so long as said limitation is exceeded.'

A proper construction of the phrase which we have italicized in the above quotation from the Quota Act is important if not controlling in its bearing on the question here involved. Other language perhaps might have been chosen to disclose legislative intent more obviously. But the verbal adjective 'granted' modifying the noun 'licenses' is a participle and in the form used, refers to existing licenses previously ordered by the Board and has no prospective implication. An occasional nice use of English in an Act of Assembly should not create an ambiguity on a mere assumption that it was accidental. The phrase as a whole, if given its proper grammatical construction relates to the exclusion of existing licensed hotels and clubs from the numeration of those licenses chargeable against the quota of a municipality. The exclusion certainly was not intended as an exception removing clubs from the ...


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