Appeal, No. 296, Jan. T., 1961, from decree of Court of Common Pleas No. 6 of Philadelphia County, March T., 1961, No. 889, in case of J. Welmore Garrett v. Thomas P. McHenry et al. Decree affirmed.
Robert C. Grasberger, for appellant.
David Berger, City Solicitor, with him Clyde W. McIntyre, Assistant to the City Solicitor, and Levy Anderson, First Deputy City Solicitor, for County Board of Elections, appellees.
Samuel D. Goodis, with him Folz, Bard, Kamsler, Goodis & Greenfield, for intervening appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
This proceeding was begun in the court below by the present appellant's petition for a rule on the Commissioners
of Philadelphia County, acting as the County Board of Elections, to show cause why they should not be restrained from issuing ballots for a referendum at the primary on Tuesday, May 16, 1961, to determine whether the electors of Philadelphia authorize the sale of liquor and malt or brewed beverages on Sunday in hotels during certain hours in accordance with the provisions of the Liquor Code of 1951, as amended.
In order that an inappropriate legal procedure be not impliedly condoned by our entertaining the present appeal, we wish first to point out that the petitioner should have filed a taxpayer's bill of complaint, formally drawn with all necessary relevant and material averments and duly served upon the defendant commissioners, in order properly to bring before the court below the matter which he sought to have adjudicated. However, we may proceed to a consideration of the merits of the petitioner's contentions since the city solicitor, recognizing that the petitioner should have proceeded by bill in equity rather than by mere petition to show cause, treated the petition as a complaint in equity and filed thereto preliminary objections in the nature of a demurrer, whereupon the matter was heard and disposed of by the court below. Thus, in effect, the action became an equity proceeding, was so treated below and will be so treated here.
Coming to the petitioner's complaint, Section 406(b) and (d) of the Liquor Code of April 12, 1951, P.L. 90, as last amended by the Act of February 21, 1961, P.L. 45, authorizes a referendum in any city of the first or second class (presently Philadelphia and Pittsburgh respectively) "on the question of determining the will of the electors with respect to the authorization of the sale of liquor and malt or brewed beverages during certain hours on Sunday in hotels" upon ...