In re Crawford County Liquor Licenses.

families untold miseries; but I do not believe that the licensed house is to be charged with all this. True, it furnishes a place, a legal place, for those who desire liquors to get them, but in my observation, the man who has the appetite for liquor will get it at some illegal place if the legal one does not exist.

Potter County under a special law had no licenses until said act was repealed in 1899 by a repealing act, which became effective by a majority vote, thereby under the Act of 1887 becoming a license county. While holding court there last March, I was informed by the judge and members of the bar that under the no license system, the principal business of the criminal courts was the prosecution of defendants charged with illegal liquor selling, and that under the general law and the granting of licenses, there was an amazing decrease of such offenses, and consequently an improvement in the law and order of the community.

During the fourth week of January last, I was assigned to Lawrence County for judicial duty, a county without licenses for some four years. Though it was Civil Court week, two women and one man came into court the morning of my arrival and pleaded guilty to illegal liquor selling. During the same week, three more were arrested in the same county on the same charge.

A year ago, the retiring district attorney of the same county made a computation of the number of prosecutions in Lawrence County for illegal sale of liquors during the first three years of no license, and found that they numbered two hundred and fifty-three. This is a greater number of prosecutions than there have been in Crawford County for this offense in fifty years, notwithstanding the population of Lawrence County exceeds that of our own county by less than nine thousand, and notwithstanding the fact that we have a district attorney who is willing to prosecute.

These are but casual observations made without any thought at the time of applying them to this discussion; but I make use of this common knowledge as some of the incidents that have followed in two counties under a no-license system and a no-license administration. In my own mind I cannot separate these incidents and facts from what I believe was their antecedent cause.

As to the Titusville applications, they are largely remonstrated against. The Mansion House in the First ward is supported by 32 signers and opposed by 158 men and 310 women, a total of 468, or a ratio of about 15 to 1. Across the street in the Third ward, the largest remonstrance numbers 25 men and 69 women, as against the largest petition of 100.

In the Fourth ward, the largest remonstrance consists of 80 men and 129 women and the largest petition has 247 names.

The inconsistency of applying the numerical test to petitions and remonstrances is here apparent.

In the Mansion House of Titusville and the Lafayette of Meadville, we have two of the leading commercial hotels of northwestern Pennsylvania, providing sixty-one and eighty rooms respectively for their guests. They are the pride of their respective cities. No complaint is directed against ther management. Yet, notwithstanding their wide and favorable reputation, the application of each is far more strongly opposed by remonstrance than the applications of simple restaurants across the street.

The trouble with the Titusville and the Meadville remonstrances is they do not discriminate. They seem to proceed on the theory that the whole license system is wrong; that a well conducted place is worse than a badly conducted one; therefore, treat them all alike. This method of opposing licenses furnishes but little assistance to the court.

In consideration of the petitions, remonstrances and evidence and the best information obtainable, as well as our own knowledge, we are of the

In re Crawford County Liquor Licenses.

opinion no new licenses should be granted in Titusville. Therefore, the applications of Harry P. Angell, R. A. McGill, John Gutman, Bertha Schwartz and Sol M. Friedman are refused. With like consideration, we are of the opinion that the applications of Mary Netcher, Michael Hand and Myer & Cassin should be refused.

As to Meadville, Cambridge Springs and Spartansburg retail applications, the remonstrances are fatally defective, in that they fail to set forth the resident of the signers. It was urged that this defect might be cured for the reason that it was simply a disregard of the requirement of a rule of court. But it is clearly a statutory requirement, as was held by the Supreme Court in Gibboney's Petition, 185 Pa., 578:

"The remonstrances are all upon printed blanks, calling as the statute requires for statements that the remonstrants are residents of the ward in which the license is applied for, but the blanks in this respect are not filled up."

However, if such remonstrances were considered regular, they are general rather than specific. We have 457 signers remonstrating against the granting of a license to the Lafayette Hotel as against 41 petitioning for. While across the street, within half a square, in another ward, 191 remonstrating against the granting of a license to a restaurant, with 232 petitioning for, another striking illustration of the unthinkableness of granting or refusing licenses upon the number of names that can be mustered for and against an application.

There are no remonstrances against the Venangoboro applications. Therefore, as to the Meadville Venangoboro, Cambridge Springs and Spartansburg retail applications, we are without remonstrance and without evidence other than that furnished by applicants' petitions. In view of this situation and in view of the former adjudication as to their necessity, and with due regard to the number and character of such petitioners, we are of the opinion that said retail applications should be granted. And with like regard to the Saegertown applications, they are granted, and the Cochranton application is refused.

This brings us to the consideration of the wholesale applications: The petition of M. A. Lowman is supported by 1,599 signers; that of Young J. Rhodes by 1,504; that of W. L. Orris by 1,603; that of Cornelius McNierney by 541; that of Dreutlein & Kebort by 1,628; that of Clement M. Carew by 32; that of Frank J. Campbell by 1,607.

The lowest remonstrance against any of these applications numbers 11,475 signers, and the highest one reaches 11,726.

As to wholesale applications, the law provides that the court “shall hear petitions from the residents of the county, in addition to that of the applicant, in favor of and remonstrance against the application for such license."

Our rule of court provides that whenever a remonstrance is to be circulated against a wholesale application "that notice of such intention shall be given to the applicant prior to the circulation of such remonstrance."

In these cases, notice was given to the applicants that their applications were to be resisted by remonstrances to be filed in court. Apparently the applicants, with the exception of Mr. Carew, accepted the challenge, with the result above set forth.

A year ago the highest petition for wholesale license was supported by 2,042 signers, with a remonstrance of 4.093 men and 5,641 women, or a total of 9,734. This year, the highest petition for, that of Dreutlein & Kebort, is supported by 1,628 signers, with a remonstrance of 4,567 men and 6,908 women, or a total of 11,475. The highest remonstrance is against Frank Campbell's application and numbers 11,726.

Last year's applicants' signers for stood as to men signers against in

In re Crawford County Liquor Licenses.

the ratio of one to two, and, as to the entire remonstrance, one to five. This year, as to such signers, the ratio stands one to three, and one to seven.

I confess that I have hitherto entertained and expressed the opinion that the granting of retail licenses draws with it an inference of necessity for wholesale licenses. But the law provides that the residents of the county are entitled to speak upon the question of necessity. When they speak so decisively as seven to one against the necessity, their evidence gains a convincing force that it did not have two years ago when the signers against but slightly prevailed over the signers for, and such remonstrance of a right become more convincing than a year ago when the signers for stood one to every five remonstrating.

In Reznor Hotel Company's License; 34 S. C., 525 (528), the Superior Court said: "The granting or the refusal of the license in previous years is not conclusive, and under some circumstances, it ought to have but little, if any, weight in the determination of the applications before the court."

If urged that a large percentage of the remonstrants are women and hence should be ignored, we cannot assent to the proposition.

In Reed's Appeal, 114 Pa., 452 (463), the Supreme Court said: "The act does not require that either the petitioners or remonstrants should be voters; it is enough that they are citizens, whether male or female, hence it is a mistake to pass over women, and count only voters."

Having renewed some retail licenses chiefly for the reason that the petition outweighs the remonstrance, their necessity having been previously adjudicated, to be consistent we should give similar consideration and due regard to the number and character of signers for and against the wholesale applications. Giving such regard to these petitions for and against all applications for wholesale licenses, we are of the opinion that they are not necessary for the accommodation of the public; consequently, they are all refused.

The conclusions hereinbefore expressed were reached in an attempt to apply the law to the facts presented, as directed by the act of assembly and interpreted by our higher courts. Wherever the results reached seem inconsistent as compared with each other, this apparent inconsistency is due to the regard given to the evidence offered, whether by testimony of witnesses or by petitions and remonstrances. For instance, the Cochranton application was refused because of the convincing and overwhelming evidence against its necessity, and the Venangoboro applications for a similar reason were granted, on the weight of unopposed petitions, considered with their former adjudged necessity. In other words, our conclusions as to the respective applications is not our individual judgment, but a judicial opinion reached by use of the aids the law provides for the enlightenment of our judgment, to-wit, the evidence of witnesses or the petitions and remonstrances filed, after giving to such aids the due regard that the law requires. We have no jurisdiction to consider the necessity of brewers' or distillers' licenses.

In re Release of Prisoners for Violation of Game Laws.

Game Laws Fines-County Commissioners-Release of Prisoners.

County Commissioners have no authority to direct the discharge of prisoners convicted of violations of the game laws, and the release of a prisoner before he has served a day for each dollar of fine imposed, renders the sheriff and his bondsmen liable.

OFFICE OF THE ATTORNEY GENERAL.

Harrisburg, Pa., June 30, 1915.

Dr. Joseph Kalbfus,

Secretary of the Game Commission,

Harrisburg, Pa.

Sir-Answering your inquiry of the 28th, as to the right of County Commissioners to direct the discharge of a prisoner sentenced in default of fine imposed for violation of game laws.

While the particular Act to which you refer is that of May 1, 1909, P. L. 325, as amended by the Act of May 9, 1913, P. L. 193, yet the facts are applicable to a summary conviction by an alderman or justice of the peace under any of the game laws of this State.

Under these Acts which provide for a fine, and in default of payment of this fine for a sentence of imprisonment for a day for each dollar of fine imposed, and in which an alderman or justice of the peace has original jurisdiction, a commitment cannot be interfered with or the prisoner discharged, except upon ar order of the Court of Quarter Sessions obtained after a reversal of the conviction, or by an order of the Court of Common Pleas under the Insolvent Debtors Acts for the discharge of the prisoner after he has served an imprisonment of at least three months where the fine exceeds fifteen dollars. See Johnson's Petition, 2 Dis. Rep. 700.

Commissioners have, in times past, assumed to exercise the authority of ordering the discharge of prisoners committed for non-payment of fine or costs. The absolute want of any such authority is clearly set forth in the case of Crawford County vs. Barr, 92 Pa. 359, as stated by Justice Trunkey in this case:

"County Commissioners have no power to discharge a prisoner or to remit fines, forfeitures and costs. If Courts have sanctioned their acts in paying costs out of County funds, where a party was committed solely in default of payment of costs, that does not authorize their interference when there has been a conviction and sentence for a criminal offense."

See also Schwamble vs. The Sheriff, 22 Pa. 18.

The action by the sheriff in releasing a prisoner sentenced for default of payment of fine, such release being made only on the order of the County Commissioners, is not so much the fault of the assumption of authority by the Commissioners as the dereliction of the sheriff in permitting the release of the prisoner without proper warrant of law.

As stated in Kuhn vs. North, 10 S. & R. 399,

"The sheriff acts in all cases at his peril, and is answerable for any mistakes. Infinite inconvenience would arise if it were not so."

The action of the sheriff in releasing any prisoner without an order of the Court and before the prisoner has served a day for each dollar of fine imposed renders the sheriff and securities on his recognizance liable for the amount of the fine.

See Walberton et al. vs. Commonwealth, 7 S. & R. 272.

In instances which have heretofore occured where the sheriff has illegally released prisoners committed for non-payment of fine imposed under the various game laws of this State, you should direct such sheriffs to re-arrest the prisoners so released. As stated in Schwamble vs. The Sheriff, above cited:

"The person convicted having been discharged from prison by the deputy

In re Release of Prisoners for Violation of Game Laws.

sheriff by the direction of the County Commissioners without payment of fine was lawfully retaken by the sheriff."

We, therefore, advise you to notify the various sheriffs that in event of illegal discharge of prisoners by them, they may be proceeded against by your Commission for the recovery of such portion of any fine as may be due at the time of the illegal discharge.

Respectfully yours

HORACE W. DAVIS,
Deputy Attorney General.

Borough of Avalon vs. Allegheny Trust Company.

Municipal taxes-Judicial sale

-Divestiture of Act of May 29th, 1907.

Upon judicial sale of certain real estate the proceeds were applied to the sheriff's costs and then to county and borough taxes which were liens after the year 1907, and which exhausted the fund. At the time of the sale borough and school taxes for 1904 and 1905 were prior unpaid liens on the property.

Held that by the Act of May 28th, 1907, providing that the lien of a tax or municipal claim shall not be divested by any judicial sale of the property liened as respects so much thereof as the proceeds of such sale may be insufficient to discharge, the lien of the taxes for 1904 and 1905 were divested as they were prior in time to those paid and the proceeds of the sale were sufficient to pay them. The fact that the proceeds of such sale were appropriated to taxes of other years does not change the effect of divesting the lien for the two prior years.

Motion for judgment non obstante veredicto. No. 3027 October Term, 1912. C. P. Allegheny County.

A. G. Liddell and Jas. McLaren, for plaintiff.
Geo. H. Quaill, for defendant.

EVANS, J., January 9, 1915. This case comes before the Court on a motion by the defendant for judgment non obstante veredicto. The facts are not in dispute. The case comes into Court on a scire facias sur municipal lien for taxes levied for the year. 1905 and entered as a lien on December 31, 1907. On October 1, 1911, the Sheriff of Allegheny County sold the premises subject to the lien as the property of Anna R. Campbell. The proceeds of the Sheriff's sale were distributed by the Sheriff to the costs of the writ upon which the sale was had to County taxes for the year 1907, to County taxes for the year 1909, to County taxes for the year 1911, to Borough and School taxes for the year 1909, to Borough and School taxes for the year 1910, to Borough and School taxes for the year 1911, which absorbed the total amount bid at the Sheriff's sale.

The Act of May 28, 1907, P. L. 280, amending the 32nd section of the Act of 1901, provides: "The lien of a tax or municipal claim shall not be divested by any judicial sale of the property liened, as respects so much thereof as the proceeds of such sale may be insufficient to discharge."

In fact, the Borough and School taxes for 1904 and 1905 had not been paid, and the lien for the taxes for those two years had been filed and were existing liens at the time of the Sheriff's sale in 1911. The only question in this case is whether or not the lien was divested by the Sheriff's sale of October 1st, 1911. So far as the evidence presented discloses, the first lien on the premises sold at Sheriff's sale in 1911 was the Borough and School taxes of Avalon Borough for the year 1904; the second lien was the same taxes for the year 1905. Those being the first liens upon the premises should have been the first paid out of the proceeds of the Sheriff's sale after the cost of the writ upon which the property was sold.