Schwemmer & Niermann's License , 56 Pa. Super. 320 ( 1914 )

Opinion by

Rice, P. J.,

The record shows that the court granted the application of George Friedrich for a retail liquor license at certain premises for the year beginning June 1, 1913, and that on June 2 the grant was revoked because of nonpayment of the license fee within the required time. On July 13, these appellants filed their application for a license at the same premises for the balance of the year, and this was accompanied by the petition of the executors of the former owner of the premises, setting forth, inter alia, that upon the revocation of Friedrich’s license he removed from and ceased to occupy the premises. After hearing upon these petitions, additional petitions of citizens, remonstrance, and evidence, the court refused the application, and, on the same day, granted the petitioners an exception to the order, and directed that the stenographer’s notes of testimony be filed. The notes of evidence, certified by the stenographer and approved by a judge of the court, were filed later, and this appeal was taken. A new claim is made in this case, which is, that the notes of evidence, thus certified, approved, and filed, became part of the record and are to be considered by us in the disposition of the appeal. This claim is made by virtue( of a clause of sec. 4 of the Act of May 11, 1911, P. L. 279, which provides that, when the evidence in any case is transcribed and the transcript is duly certified by the official stenographer and by the trial judge, it shall be filed of record in the case “and shall be treated as official and part of said record for the purposes of review upon appeal,” etc. If this provision of the act of 1911 applies to every hearing before a court in which testimony is taken, it is certainly a very wide departure from the law as heretofore understood and applied. But we are unable to agree that the legislature had any such purpose in mind. The evidence referred to in this section is the evidence referred to in the preceding section, namely, the evidence taken upon the trial of any case. These were not apt words to so radically amend the law as is claimed, and to virtually give an appeal, in the strict sense of that term, from the discretion of the quarter sessions to the discretion of the appellate court. Having regard to the language of the two sections, as well as to the subject-matter, we are of opinion that the clause relied on by appellants’ counsel does not make the testimony taken on the hearing of a liquor license application, though transcribed, a part of the record for purposes of review. And if the legislature did not intend to require that to be done, the fact that the court voluntarily sealed a bill of exceptions and directed the transcript of the evidence to be filed, cannot have the effect claimed. See Middleton v. Com., 2 Watts, 285, Commonwealth v. Carlucci, 48 Pa. Superior Ct. 72, and cases there cited. This conclusion frees the case from any difficulty. The application having been refused after due hearing, and there being no irregularity in the proceedings, the presumption is that the court gave due consideration to the evidence and to the petitions for and against the license and refused the application for a legal reason, and not arbitrarily.

The order is affirmed.