Appeal, No. 54, March T., 1959, from order of Court of Quarter Sessions of York County, Oct. T., 1957, No. 34, in case of Commonwealth of Pennsylvania v. Loyal Order of Moose, Lodge No. 148 et al. Appeal quashed.
Harry J. Rubin, Deputy Attorney General, with him Joseph L. Cohen, Deputy Attorney General, and Thomas D. McBride, Attorney General, for appellant.
John T. Miller, with him J. Richard Budding, and Budding & Yost, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 188 Pa. Super. Page 533]
This proceeding was originated by a complaint filed before an alderman by an officer of the Health Department of the City of York charging a violation of the Act of May 23, 1945, P.L. 926, as amended by the Act of September 26, 1951, P.L. 1462, 35 P.S. 655.1, et seq., which provides in pertinent part that "it shall be unlawful for any proprietor to conduct or operate a public eating or drinking place without first obtaining a license, as herein provided". At a hearing before the alderman on October 7, 1957, the defendants were found guilty and sentenced to pay a fine. On October 11, 1957, the Court of Quarter Sessions of York County allowed an appeal, which was subsequently submitted on an agreed stipulation of facts. On August 25, 1958, the court below filed its opinion together with an order that "the defendants ... are adjudged not guilty, and the County of York is directed to pay the costs of prosecution". On October 8, 1958, the Commonwealth appealed to this court. On October 31, 1958, the appellees filed a motion to quash on the ground that "the Commonwealth has no right of appeal". On November 7, 1958, the Commonwealth filed an answer to the motion to quash, asserting the right to appeal "where only a question of law is involved". We heard argument both on the motion to quash and answer, and also on the merits. The factual situation is set forth by Judge ATKINS as follows:
[ 188 Pa. Super. Page 534]
"The facts have been stipulated by counsel for the Commonwealth and for the defendants. The stipulation, in substance, sets forth that the defendant, Loyal Order of Moose of the World, Lodge No. 148, is a properly chartered Pennsylvania non-profit corporation, conducting its business and activities in the City of York, Pennsylvania, at 159 South George Street, and that the corporation has 2900 members. The defendant, Allen C. Spangler, is an adult individual residing at 28 South Sumner Street, York, Pennsylvania, and is the secretary and steward of the corporation. The Lodge holds a club liquor license issued by the Pennsylvania Liquor Control Board and does serve food and refreshments, maintaining a kitchen and all facilities to engage in these activities. The only persons admitted to the Lodge premises are members of the Lodge and guests of members. Persons are admitted to the membership of the Lodge only in accordance with the constitution and by-laws of the corporation of the Supreme Lodge of the Moose.
"In March 1957 the Health Department of the City of York (the licensing body provided by the Act of Assembly above referred to) mailed an application for a license to operate a public eating and drinking place to the Lodge which application was not completed nor returned. On May 6, 1957, a health officer of the City of York called at the Lodge premises, introduced himself as a health inspector, and was advised by an employee to go ahead and inspect the premises. While the inspection was in progress the defendant Spangler appeared and advised Officer Fishel that the Lodge did not apply for a license, as required of public eating and drinking places, for the reason that the Lodge did not operate a public eating and drinking place but was a privately owned and operated place and, therefore, not subject to the Act of 1945, supra. No application was
[ 188 Pa. Super. Page 535]
filed by the Lodge for a license under the act for the year 1957 and no license was granted to it".
We have concluded, as will be hereinafter demonstrated, that this appeal must be quashed. However, since the question presented might otherwise arise again, as asserted in the Commonwealth's brief,*fn1 we deem it advisable to briefly consider the merits. As pointed out by the court below, the issue is a very narrow one, namely, whether or not the Lodge in question was conducting a public eating and drinking place as that term is defined in the statute.*fn2 Webster defines the adjective public in several ways, as follows: "Of or pertaining to the people; pertaining to or affecting a nation, state, or community at large; - opposed to private. Open to the knowledge or view of all; general; common; notorious". The noun is thus defined: "The general body of mankind, or of a nation, or community; the people". It seems obvious that, applying the ...