Windber Brewing Co. No. 2's License , 54 Pa. Super. 287 ( 1913 )

Opinion by

Rice, P. J.,

This is an appeal from an order of the quarter sessions refusing the appellant’s, application for a brewer’s license. Our revisory jurisdiction in such cases does not extend to a review of the evidence given on the hearing. The determination of pure questions of fact rests exclusively in the court of quarter sessions, and from its decision thereof there is no appeal. The discretion vested in that court is a judicial discretion, to be exercised for legal reasons and in a judicial manner. When so exercised it is not réviewable. “The phrase ‘abuse of discretion/ as applied to judicial proceedings, does not necessarily imply a willful abuse or intentional wrong. It may occur through an honest though erroneous opinion entertained by the court as to the nature and extent of its discretionary power and as to the legal principles governing its exercise. And where this is plainly made to appear to the appellate court, in a legitimate way, it may set aside the action complained of and remit the matter to the court of first instance, with direction to proceed according to the legal principles governing the judicial discretion committed to it. Kelminski’s License, 164 Pa. 231; Gemas’s License, 169 Pa. 43; Knoblauch’s License, 28 Pa. Superior Ct. 323, and Katharine Water Co., 32 Pa. Superior Ct. 94, are illustrative cases sustaining this view:” Com. v. Shaffer, 52 Pa. Superior Ct. 230. We shall consider the present appeal in the light of these well-settled general principles.

The learned court assigned, as the reason for its refusal of the license, that the applicant, while holding a license which expired in June, 1912, made illegal sales of beer, and this conclusion was based on the court’s finding which we quote: “These depositions show that in March, April, and May, 1912, after the court’s action on the application for license, the applicant sold beer to its customers in Somerset, Stoyestown and elsewhere, and the purchaser paid the freight and drayage, but when the bills were collected by the applicant, a credit was allowed for this freight and drayage, thus making the deliveries in each instance at the place of destination instead of at the brewery.”

We do not disagree with the learned court in its declaration that, under the Act of July 30, 1897, P. L. 464, a brewer can only sell at the place wheré he is licensed, namely, at the brewery, and that sales made by him elsewhere are illegal. Thus, in Star Brewing Company’s License, 43 Pa. Superior Ct. 577, it was held that, where a brewing company having a license to sell beer only at its brewery in a certain borough, employs agents in other places to take orders for beer, and agrees to deliver, or caused to be delivered, beer to purchasers at the town or place where the order is given, the contract is executed only when the beer is delivered to the purchaser at the place where the order was given, and the company, in making such a sale, is guilty of selling liquor without a license; and for such action in the past the court may refuse to the company a license to sell beer in the future. But in that case, as will be seen by' a perusal of the opinion of our Brother Head, the decision was put upon the ground that there was a contractual undertaking on the part of the vendor to deliver the beer to the purchaser at the place where the order was given, that until such delivery was made the contract was executory, and therefore the sale was not at the brewery, but at the place of actual delivery. It will be seen, therefore, that this case does not sustain the proposition that, if the vendor gives the vendee credit on his bill, for the transportation charges paid by the latter, the sale is necessarily to be regarded as having been made at the place to which the goods were transported, and not at the place where they were designated and set apart for the vendee. In Dannemiller v. Kirkpatrick, 201 Pa. 218, it was held that, while the prepayment of freight may be evidence of intention to deliver the goods to the buyer at his place of business, yet the court is not justified in determining the question from that fact alone to the exclusion of the other testimony in the case. There is even stronger reason for observing the same distinction here. The fact alluded to by the learned judge may be pertinent in connection with- other evidence in determining where the sales were consummated; but, standing by itself, it does not warrant the legal conclusion that the sales in question were in each instance made at the place of destination instead of at the brewery. We are, therefore, constrained to the conclusion that the judgment of the court was based on an erroneous view of the legal effect of the fact alluded to, and that for that reason the cause must be remitted to the court for further consideration. It is urged by appellant’s counsel that we should go further and, in accordance with some of the precedents, direct the license to be issued. But we do not think that would be justifiable under the circumstances of the present case. It is not a conceded and undisputed fact that there was no evidence bearing upon the question of the place of sale except that which .has been alluded to by the judge. Whether under all of the evidence the court would have been justified in finding that the petitioner had made illegal sales, subjecting it to the criminal laws of the commonwealth, is a question which cannot be determined without consideration of the evidence; and, as we have suggested, that is not brought up on such an appeal as this. It is a question for the determination of the court, and we express, and intend to intimate, no opinion upon it whatever. What we decide is, that the fact that the petitioner gave credit to these customers for the freight charges which they had paid does not, of itself, warrant the conclusion that the sales were not made at the brewery, or constitute a legal reason for refusing the license.

Judgment reversed and a procedendo awarded.