The opinion
Dissenting opinion
Gibson, P. J.,
November 28, 1947. — I find myself unable to agree with the conclusion reached in the majority opinion or with the reasoning there advanced. There has been disagreement among the courts of the various counties of the State concerning whether or not a beverage license can be “exchanged” for a liquor license. Among those courts which hold that such cannot be done are the courts of York County, Wyoming County, Indiana County, Law *17 rence County, Lehigh County, Schuylkill County, Luzerne County, Chester County, Philadelphia County, Montgomery County, Lancaster County, Bed-ford County, Venango County and Fayette County, which I suggest are very respectable authorities. Also, the Superior Court has expressed its opinion on this matter in Kester’s Appeal, 140 Pa. Superior Ct. 293 , as follows:
“The respective licenses authorized [by the Pennsylvania Liquor Control Act and the Beverage License Law] . . . are different and distinct, and transfers or exchanges from one kind of license to the other are not contemplated, except on the basis of new applications, which are subject to the limitations prescribed by the Act of 1939, P. L. 806, . . .” limiting the number of retail licenses. It is claimed by some that this expression of the Superior Court was not necessary in the decision and that it is dicta. Nevertheless, it is an expression of opinion by the members of the Superior Court bench which entitles it to serious consideration. Particularly is this so when the courts of the several counties in the State are unable to agree.
Through a long period of Pennsylvania history it has been found necessary to regulate and restrain the use of intoxicating liquors. Immediately following the prohibition era, licenses for the sale of beverages with a limited alcoholic content were issued by county treasurers. The act authorizing this, together with its supplements and amendments, constitutes the Beverage License Law. When the Liquor Control Board was created, it was given power to grant licenses for the dispensing of liquor and there was also transferred to it the authority to issue licenses under the Beverage License Law.
The Pennsylvania Liquor Control Act of November 29,1933, P. L. 15, is entitled, “An Act to regulate and restrain the sale, importation, and use of certain alcoholic beverages,” etc. This act granted certain powers *18 to the Liquor Control Board to set up State liquor stores and to grant several types of licenses. The definitions of the act clearly distinguish spiritous, vinous, fermented and other alcoholic beverage from malt liquors which are regulated by the beverage acts. It is clear, therefore, that the purpose of the legislation which furnishes the foundation of all Pennsylvania Liquor Control Board authority is to regulate and restrain.
The Pennsylvania Liquor Control Act, art. I, sec. 3, both in the original and as finally amended by Act of June 16,1937, P. L. 1762, provides for its interpretation, namely:
“(c) Except as otherwise expressly provided, the purpose of this act is to prohibit transactions in liquor, alcohol and malt or brewed beverages which take place in this Commonwealth, except by and under the control of the board, as herein specifically provided, and every section and provision of the act shall be construed accordingly.”
Also, under the same section, clause (a) : “This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth, and to prohibit forever the open saloon; . . .”
This legislation was followed by the Liquor License Quota Act of June 24, 1939, P. L: 806, which prohibited the future granting by the Pennsylvania Liquor Control Board of a license for the retail sale of malt or brewed beverages or the retail sale of liquor or malt or brewed beverages in excess of one such license of any class for each 1,000 inhabitants or fraction thereof in any municipality, excluding licenses granted to hotels and clubs.
In the case considered here, the quota permissible for all licenses, excluding hotels and clubs, is three. There have already been granted seven liquor licenses *19 and one beverage license, being the one which appellants seek to surrender and have granted to them a new liquor license. Appellants claim the right to do this. The majority opinion holds that appellants have the right to exchange or transfer from one class of licenses to another and that such being the case this does not constitute an increase in the number of licenses. As I view the majority decision, it assumes powers nowhere given to the court to do that which the Liquor Control Board is expressly forbidden to do and amounts to judicial legislation through an unjustifiable construction of the several acts relating to beverage and liquor licenses. The legislature has provided for transfers of licenses from one person to another and from one place to another, but nowhere in any legislation relating to either liquor or beverage is there any authority for a transfer from one class to another. There is no authority either in the Liquor Control Board or elsewhere for an exchange of one type of license for another. The two types of licenses or privileges granted come from different sources notwithstanding the Liquor Control Board supervises both. There can be no “exchange” under the usual definition that exchange is the act of taking one thing for another regarded as an equivalent. The two types of licenses are not equivalent. By means of a strained construction of the liquor laws the license privileges in the Borough of Burgettstown are being increased. This is the very purpose of appellants’ application. Appellants applied for a new liquor license and their application so shows, and, upon such being granted, offer to surrender a beverage license after the quota had been more than twice filled. The reasoning that the granting of this new liquor license is not an increase of licenses in violation of the provision of the Quota Act is unsound. I believe the determination of the Pennsylvania Liquor Control Board in this case was the correct one and that the appeal should be dismissed.