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CAVANAUGH ET AL. v. GELDER ET AL. (03/20/50)

March 20, 1950

CAVANAUGH ET AL., APPELLANTS,
v.
GELDER ET AL.



Appeal, No. 13, May T., 1950, from decree of Court of Common Pleas of Dauphin County, in Equity, No. 1871, commonwealth Docket, 1949, No. 27, in case of Patrick Cavanaugh et al. v. Frederick T. Gelder et al., constituting and comprising the Pennsylvania Liquor Control Board. Decree affirmed; reargument refused, April 11, 1950.

COUNSEL

Abraham J. Levinson, for appellants.

Horace A. Segelbaum, Deputy Attorney General, with him T. McKeen Chidsey, Attorney General, for appellees.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

[ 364 Pa. Page 362]

OPINION PER CURIAM

This is the second appeal to come before this Court involving an attempt on the part of owners of establishments licensed under the Liquor Control Act of November 29, 1933, P.L. 15, as amended, to restrain the Pennsylvania Liquor Control Board from enforcing a regulation, known as Bulletin A-62, issued March 31, 1947, pursuant to Section 602 (14) of the Act (47 PS 744-602 (14)), requiring liquor licensees to obtain an amusement permit as a prerequisite to the use of television devices in licensed establishments.

In the previous case, Philadelphia Retail Liquor Dealers Association v. Pennsylvania Liquor Control Board, 360 Pa. 269, 62 A.2d 53, we concluded (p. 273) that "The intent of the statutory provision [Section 602 (14)] is regulation by the Liquor Control Board of screen exhibitions of action pictures in licensed establishments, and the terms employed by the Act in such connection are sufficiently general as to embrace pictures produced by means of television." The sole question presented in that case was one of statutory interpretation. Following that decision, the present plaintiffs filed their bill in equity attacking the regulation on constitutional grounds. Defendants, members of the Liquor Control Board, filed an answer raising preliminary objections, which were sustained after argument, and the bill dismissed.

In their bill, plaintiffs averred, inter alia, that the Board has no power or authority to supervise television broadcasts; that the cost of issuance of an amusement permit and any inspection and supervision as respects plaintiffs, or any other licensee in the Commonwealth, will not exceed a purely nominal sum; and that payment

[ 364 Pa. Page 363]

    of the required annual amusement fee for television reception by licensees throughout the Commonwealth would yield annually a sum in excess of that expended by the Board for all licensing purposes and for enforcement of all liquor laws, both as respects the Board's licenses and the general public. Accepting these averments as true, as the procedural situation requires, appellants contend that Section 602 (14) of the Act, to the extent that it requires them to pay an annual amusement permit fee in excess of the actual cost of issuance of a license, is unreasonable and confiscatory and in violation of Article I, section 1, of the Constitution of Pennsylvania and section 1 of the Fourteenth Amendment of the Constitution of the United States. It is also alleged and argued that Section 602 (14) is discriminatory and therefore invalid in that it provides for a permit fee equivalent to one-fifth of the annual liquor license fee prescribed in Section 407 (a) of the Act, with the result that the permit fee payable in a given case may vary from $25 to $120, depending upon the population of the municipality in which the particular licensee is located.

In answer to the constitutional objections of plaintiffs, the well-considered opinion of the court below states:

"[Plaintiffs' contentions are] predicated on the fallacy that the license required for the privilege of providing televised, and no other form of entertainment, in establishments licensed under the Liquor Control Act is in a category entirely separate and distinct from the license required to be held for the privilege of selling intoxicating liquors. With this we cannot agree. On the contrary, it is the restaurant licensee who is granted under the Liquor Control Act the additional privilege, upon the payment of a further ...


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