Rossi vs. Commonwealth of Pennsylvania.

vs. Guinzburg, 46 Pa. Sup., 488, 497; and see Garbracht vs. Commonwealth, 96 Pa., 449, 453. And so, in the present case, the Superior Court (53 Pa. Sup., 220) recognized that it was not the making of the executory contract, but the execution of it, that involved a violation of the law of the State.

The Federal question presented is whether under the act of Congress approved August 8, 1890, ch. 728 (26 Stat. 313), known as the Wilson Act, the State of Pennsylvania may punish plaintiff in error for delivering in that State liquors transported interstate commerce, under the circumstances stated. The case arose before the passage of the Act of March 1, 1913, ch. 90 (37 Stat. 699), known as the Webb-Kenyon Act, and the effect of this legislation is therefore not now involved.

As has been recently pointed out in Kirmeyer vs. Kansas, 236 U. S., 568, 572, the transportation of intoxicating liquor, as of other merchandise, from State to State, is interstate commerce and state legislation which penalizes it or directly interferes with it, otherwise than as permitted by an act of Congress, is in conflict with the commerce clause of the Federal Constitution; and while Congress, in the Wilson Act, declared in substance that liquors transported into any State or remaining therein for use, consumption, etc., shall upon arrival in such State be subject to the operation and effect of its laws enacted in the exercise of the police power, to the same extent and in the same manner as though the liquors had been produced in such State, and shall not be exempt therefrom by reason of being introduced in original packages, this does not subject liquors transported in interstate commerce to state regulation until after their arrival at destination and delivery to consignee or purchaser. Leisy vs. Hardin, 135 U. S., 100, 110: Rhodes vs. Iowa, 170 U. S., 412, 423; American Express Co. vs. Iowa, 196 U. S., 133, 142, 143; Louis. & Nash. R. R. vs. Cook Brewing Co., 223 U. S., 70, 82.

The Pennsylvania Superior Court deemed that the present case was controlled by Delamater vs. South Dakota, 205 U. S., 93, where a statute imposing an annual license charge upon the business of selling or offering for sale intoxicating liquors within the State by traveling salesmen soliciting orders was held to be enforceable in view of the Wilson Act, even as applied to the business of soliciting, within the borders of the State, proposals for the purchase of liquors which were to be consummated by the delivery within the State of liquors to be brought from without. That case, however, has no present pertinency, since the prohibition of the Pennsylvania statute is not addressed to the business of soliciting contracts for the purchase of liquor, but to the sale of the liquor itself; and by the terms of the Wilson Act, as previously construed, the control of this subject by the several States is postponed until after the delivery of the liquor within the State.

Judgment reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

In re Application of Sedlak for Retail Liquor License.

Liquor License

-Transfer-Act of April 20, 1858, P. L. 365.

Application was made May 10, 1915, for transfer of liquor license granted April 26, 1915, to one who failed to pay license fee and take out his license for the year beginning May 1, 1915.

Held: Having failed to pay the license fee as provided by the Act of May 13, 1887, for the new year beginning May 1, 1915, his right to the new license ceased and by operation of law the license was revoked, and there was no license to be transferred.

The applicant has no right under the Act of April 20, 1858, P. L. 365, Section 7, to a license for the remainder of the year commencing May 1, 1915, and ending April 30, 1916.

Liquor License Application. No. 1562 March Sessions, 1915. Q. S. Allegheny County.

John A. Metz, for applicant.

*

BROWN, J., May 20, 1915.-This is an application by Louis Sedlak for a license to sell vinous, spirituous, malt and brewed liquors at retail, as provided by the Act of May 13, 1887. The application is made under Section 7 of the Act of April 20, 1858, P. L. 365, the material portion of which is: "* * * if the party licensed shall die, remove, or cease to keep such house, his * license may be transferred by the authority granting the same, or a license be granted the successor of such party, for the remainder of the year, by the proper authority, on compliance with the requisitions of the laws in all respects except publication, which shall not in such case be required: Provided, That where any license is transferred as aforesaid, no payments, other than fees, shall be required; and where a license is granted under this section, for a portion of a year, the party licensed shall pay therefor a sum proportionate to the unexpired term for which the same is granted."

The application is refused because Alexander Kramer, the license holder for the year beginning May 1, 1914, and ending April 30, 1915, at 11:45 P. M., did not "remove or cease to keep such house" during the license termno portion of the license term remaining for transfer or grant to a suc

cessor.

FINDINGS AND CONCLUSIONS.

1. At March Sessions, 1914, Alexander Kramer was granted a retail liquor license at 209 Grant Street, First Ward, City of Pittsburgh, for the year beginning May 1, 1914, and ending April 30, 1915.

2. Having paid the statutory fees on or before the day preceding the commencement of the term of license (Act May 29, 1907, P. L. 307), the license certificate was issued to him.

3. Under this certificate he conducted the business to the end of his license term, which expired April 30, 1915, at 11:45 P. M.-the closing hour fixed by rule of Court, and the hour at which he ceased to sell liquor.

4. On April 26, 1915, at No. 43 March Sessions, 1915, he was granted a like license for the year beginning May 1, 1915-but failed to pay the license fees, the payment of which, by the Act of 1907, had to be made not later than April 30, 1915, the day preceding the commencement of the license term beginning May 1, 1915.

5. Having failed to pay the license fees, his right to sell liquor ceased at the expiration of his license term ending April 30th, 1915, at 11:45 P. M. 6. Having failed to pay the fees and take out the new license for the year beginning May 1, 1915, this application was filed by Louis Sedlak, May 10th, 1915, for the remainder of the year commencing May 1, 1915, and ending April 30, 1916.

In re Application of Sedlak for Retail Liquor License.

7. Kramer having conducted the retail liquor business for the full license term ending Friday, April 30, 1915, at 11:45 P. M.; and having failed to pay the license fees for the new year beginning May 1, 1915, his right to the new license ceased and by operation of law was revoked.

Wacker's License, 6 Sup., 323; Daniel's Case, 31 Sup., 156; Schwemmer & Niermann's License, 56 Sup., 320.

8. The applicant has no right under the Act of 1858 to a license for the remainder of the year commencing May 1, 1915, and ending April 30, 1916. This conclusion is ruled by Daniel's Case, 31 Sup., 156, in which, Beaver, J., delivering the opinion, said:

"The statement of facts * * * shows that at the time the former occupants of the hotel removed therefrom no license was in existence, and there was, therefore, nothing to which the petition could attach."

Plaintiff's agent was driving a motor truck on a public highway and was attempting to pass over a grade crossing of defendant's railroad. Just as he was upon the first track he noticed the far safety gate descending and stopped the truck and attempted to back out when he was struck by defendant's train.

Held: That driver's failure to stop, look and listen was the cause of the accident and that he was careless in not stopping his car and engine and listening for a train or for the crossing bell. Had he stopped his car at the usual place near the crossing before entering upon it he would have heard the warning bell of which he had knowledge.

Motion for judgment non obstante veredicto. No. 510-1915. C. C. Allegheny County.

C. E. Theobald and H. C. Seidel, for plaintiff.

Gordon & Smith and Miles H. England, for defendant.

KENNEDY, J., April 14, 1915.-This is a motion for judgment non obstante veredicto. The plaintiff's agent was driving a motor truck on a public highway approaching the defendant's grade crossing. When two hundred feet away from the crossing plaintiff's driver said he could see both ways along the track from eight hundred to one thousand feet, that he was running about ten miles per hour and that he slowed up a little, and just before he reached the crossing he put on a little more power to cross the track, and at this time the gateman yelled at him to get out of that. His testimony does not disclose that at any time before he reached the track he stopped his car. Just as he was upon the first track he noticed the far gate descending. He stopped his car and tried to back out, but for some reason his engine failed him, resulting in the truck being struck by an approaching passenger train. These are the facts in the case as testified to by plaintiff's driver.

We are clearly of the opinion that the driver's failure to observe the stop, look and listen rule resulted in the accident. He was familiar with the road, knew that vehicles ordinarily stopped near the crossing before entering upon it, and we are also of the opinion that if he had stopped his car at the usual place, he would have heard the gateman's warning and the warning bell which he knew commenced ringing when the train was at the next crossing. He was careless in at least not stopping his car and engine and listening for a train or for this bell. Had he done so the accident would not have happened.

Schuetz vs. Baltimore & Ohio Railroad Company.

It is therefore ordered that the verdict in the case be set aside and judgment be entered on the record in favor of the defendant non obstante veredicto.

City of Pittsburgh vs. McDonough.

Municipal Liens- -Revival of—Defective Service—Act of May 16, 1891.

A sci. fa. on a municipal lien, fatally defective in its service, is a nullity for the purpose of obtaining judgment and is not sufficient potentially to continue the lien beyond its expiration so as to give validity to a judgment attempted to be secured on an alias sci. fa. sued out after the original lien has expired by the efflux of time.

Sur rule to open judgment on Sci. Fa. and to strike off a municipal lien. M. L. D. 398 June Term, 1895. C. P. Allegheny County.

Charles A. O'Brien City Solicitor, and Thos. H. Hasson, Assistant City Solicitor, for plaintiff.

W. A. Jordan, for defendant.

SHAFER, P. J., April 23, 1915.-In 1894 the City of Pittsburgh built a sewer, for the construction of which it filed its municipal lien, on May 22, 1895, at the above number and term, against D. William McDonough, who was at that time the registered owner of the property. On August 8, 1895, a sci. fa. was issued on this, which was returned nihil habet; on April 6, 1897, an alias sci. fa, was issued, on which there was a return that the sheriff had posted the premises and advertised the writ according to the Act of May 16, 1891, P. L. 69, and judgment was thereupon taken on May 17, 1897, in default of an appearance or affidavit of defense.

We do not understand that there is any dispute as to the validity of the lien and of the judgment thereon, up to this point. On April 3, 1900, a sci. fa. to revive was issued to the first Monday of May, and returned nihil habet. The deed of Mrs. Wallace, the petitioner herein, was registered in June, 1900. The next proceeding was a sci. fa, on March 7, 1905, which recites the judgment taken as above stated and was issued with notice to the petitioner. This writ was returned "nihil habet and premises posted," and no judgment was taken thereon. On February 8th, 1910, a praecipe was filed for a sci. fa. to revive and continue the lien of the judgment herein, which was returned nihil as to the defendants and that the premises had been posted and a publication according to the Act of 1891, and on May 25, 1910, judgment was entered in default of an appearance, and on May 3, 1911, a lev. fa. issued, and it was then that the petitioner, owner of the property, first learned of the existence of the lien and the writs that had been issued thereon, whereupon she took the present rule.

It appears from the petition and answer that Mrs. Wallace was all the time a resident of the city of Pittsburgh, and her petition to open the judgment herein is partly founded upon this failure to give her notice. The Act of 1891 above referred to, which is claimed by the city to govern the case, provides in Section 3 that when a lien is filed the process for collecting it shall be by writ of scire facias, and directs what proceedings are to be had thereon for the recovery of a judgment on the lien. Its provisions, substantially, are that a scire facias shall be issued, and if it is returned nihil an alias may issue, which shall be served by notice posted on the premises, and by certain advertisements published in newspapers; and it provides that such posting and publication shall be equivalent to a service. Whether these provisions apply to a scire facias to revive a judgment recovered on the lien seems, to say the least, very doubtful, but that question is not material

City of Pittsburgh vs. McDonough.

in this case for the reason that if they do not apply the petitioner is not bound by the judgment and may move to strike off the lien as lost for want of proper revival, notwithstanding the existence of the judgment against her; and if they do apply, the petitioner, having had no actual notice and having applied promptly for relief, is entitled to have the judgment opened so as to allow her to defend. In either case she is not precluded from setting up the alleged failure to revive the lien. The only question argued by counsel on either side was whether or not the lien had been duly revived.

The Act provides that the lien shall remain on the property until it is fully paid, "provided that a writ of scire facias shall be issued to revive the same at the expiration of every period of five years after the lien is filed." The contention of the city is that this proviso sets up a new method of preserving the lien of the municipal claim, different from the ordinary revival of a judgment by scire facias, and that all the city has to do to keep the lien on foot indefinitely is to issue a scire facias every five years, without regard to whether it is served or not. If this contention is correct, the lien in question still remains, as a scire facias was issued within every five year period since the filing of the lien. We are of opinion, however, that there is nothing in the words of the Act which requires any such interpretation. There is no more reason for taking literally the proviso that the lien shall continue if a writ of scire facias "shall be issued" than there would be for applying an equally literal interpretation to the words, "at the expiration of every period of five years after the lien is filed." If this were to be taken literally all the sci. fa, in this case were premature. According to the plaintiff's contention a scire facias every five years would preserve the lien although it were stayed by the plaintiff or returned tarde venit. What the Act seems to mean is, that the lien shall continue until paid provided it is duly revived by scire facias every five years. If the sci. fas. in this case issued after the original judgment are to be deemed as issued upon that judgment and are to be treated as ordinary sci. fas. for that purpose, they were of course ineffectual; if, as we understand it, the sci. fa. is supposed to be upon the lien, although the sci. fa. of 1905 is expressly stated to be upon the judgment, we have a case precisely like that which was presented in the case of Philadelphia vs. Cooper, 212 Pa. St., 306. While the lien in that case was filed and the sci. fas. issued thereon were under the laws peculiar to the City of Philadelphia, there is nothing to differentiate that case from this, as to the matter which was there decided. In that case the failure to properly serve the scire facias was the want of proper posting and publication, precisely as in this case. It will be observed from the statement of facts herein that the sci. fa. of 1900 was returned nihil, and that of 1905 was returned nihil and that the premises was posted, but without any publication. We seem to have, therefore, the case there presented; and it was there held that a sci. fa. on a municipal lien, fatally defective in its service and a nullity for the purpose of obtaining judgment thereon, has not sufficient potentiality to continue the lien beyond the time of its expiration so as to give validity to a judgment attempted to be secured on an alias sci. fa. sued out after the lien of the original claim had expired by efflux of time. Applying the Act, therefore, in the most favorable manner for the city, and supposing it to mean that the writs of scire facias were all issued on the lien and are to be served by the method provided for serving the alias sci. fa. mentioned in the Act, there will be a lapse of almost thirteen years during which no sci. fa. was issued which could preserve the lien of the claim.

It is therefore ordered that the judgment on the last sci. fa. be opened; and the case having been presented and argued as if that had been already done, the rule to strike off the lien and the proceedings thereon is made absolute.