Azarewicz Liquor License Case , 163 Pa. Super. 459 ( 1948 )

I agree with Judge RENO that, under existing legislation and the decisions of the Supreme Court, we have no power to reverse the lower court in this case.

The court below did not attempt to substitute its discretion for that of the board; it held as a matter of law that the board had no discretion under the facts of the case.

In its opinion the court, in reversing the board and ordering that a restaurant liquor license be issued, stated that the question involved is "ruled by a recent case in this court. (In Re: Appeal of Howells, 365 September Sessions 1946)." In theHowells case the court, in reversing the board and directing the issuance of a liquor license, stated: "The premises which were licensed for the sale of beer only, and on which the appellant now seeks to substitute a liquor license, are located within three hundred feet of a church. The Board has taken the position that such substitution cannot be made under the circumstances. Section 403 of the Liquor Control Act (47 PS 744-403) provides that discretion is vested in the Board to grant or refuse a new license or permit a transfer of a license to a new location, if the place proposed to be licensed is within three hundred feet of a church. It is to be noted that the obvious purpose of that section is to give the Board discretion when it is sought to open a new place within that territory. In the present case, however, the premises have been licensed practically ever since the repeal of the Prohibition Amendment. The situation, therefore, is vastly different from that intended to be covered by the Liquor Control Act. This is not a new license but merely the substitution of one type of license for another, so that there was no discretion vested in the Board to refuse the license." The court's construction of the statute may be erroneous but, in my opinion, it is conclusive.

My further objection to the majority opinion is that it constitutes an apparent usurpation of legislative functions. InMcGettigan's Liquor License Case, 131 Pa. Super. 280,200 A. 213, this Court, in holding that ". . . where the statute expressly denies an appeal from the order of the court below or it is provided that the action of the court below shall be final, appellate review, by way of certiorari, will be limited to the question of jurisdiction and the regularity of the proceedings", stated at page 286: "The effect of this provision of the statute will be to do away with uniformity of decision on this important matter, for no court of quarter sessions is bound by the decision of another court of equal authority. The decision may be persuasive but it is not of binding authority. That, however, is a matter for the legislature, not for us. Our duty is to follow the law as it is laid down for us." The McGettigan case was decided in 1938 and although the General Assembly has held five regular sessions since that date, it has not enacted legislation to change the decision.

I would affirm the court below and dismiss the appeal.