The opinion
Dissenting Opinion by
Ervin, J.
This is an appeal from the order of the lower court allowing the transfer of a restaurant liquor license to premises located within 300 feet from a religious institution. I am obliged to dissent from the majority opinion.
It is true that in Azarewicz Liquor License Case, 163 Pa. Superior Ct. 459, 461 , 62 A. 2d 78 , this Court said: “No court on appeal has power to review that discretion, except upon making new and different findings of fact.” In that case we also clearly held that the discretion to grant or refuse a license within 300 feet of a restrictive institution was vested solely in the board. That case was decided under the Liquor Control Act then in force, which provided that “The court shall hear the application de novo at such time as it shall fix, of which notice shall be given to the board.” At the session of the legislature next following that opinion, the language was materially changed to read as follows: “The court shall hear the application de novo on questions of fact, administrative discretion and such other matters, as are involved, at such time as it shall fix, of which notice shall be given to the board.” (Emphasis added) Act of May 20, 1949,.P.L. 1551, §2. The language used by the legislature in 1949 was repeated in the Liquor Code, 1951, April 12, P.L, 90, art. IV, §464, 47 PS §4-464. . .
A review of our opinions since the 1949 change in language will reveal that we have not determined the importance of this change. In the Hotchkiss Liquor Li *244 cense Gase, 169 Pa. Superior Ct. 506 , 83 A. 2d 398 , we held that the lower court did not substitute its discretion for that of the Liquor Control Board. The 1949 change in language was not really considered in that opinion. The court referred to the Azareioicz case, supra, as well as to. ’Niedzinsky Post 624, American Legion, License, 66 D. & C. 618, both of which were decided prior to the 1949 change. In Burrell I.B.P.O.E. of W. 737, Liquor License Case, 172 Pa. Superior Ct. 346 , 94 A. 2d 110 , we held that the board had abused its discretion but we did not really consider the effect of the 1949 change in language. In that case we referred to the Hotchkiss case, supra, which, in turn, was based upon the Azarewicz case, supra. In Zermani Liquor License Case, 173 Pa. Superior Ct. 428 , 98 A. 2d 645 , we referred to the Burrell and Hotchkiss cases, which, in turn, were based upon the Azarewicz case. In Zeltner Liquor License Case, 174 Pa. Superior Ct. 98 , 100 A. 2d 132 , we held that there was no discretion to be exercised inasmuch as the quota had been filled and we did not really consider the effect of the new language. In Rizzo Liquor License Case, 174 Pa. Superior Ct. 457 , 101 A. 2d 180 , we held that the board had not abused its discretion. Again we did not consider the effect of the new language. We referred to the Burrell and Zermani cases which, in turn, were based upon the Azarewicz case. In Booker Hotel Corp. Liquor License Case, 175 Pa. Superior Ct. 89 , 103 A. 2d 486 , it was argued that the court below erred in not exercising its own .independent discretion following the hearing dé noyo. .'The lower court in that case, sustained the action of' the Liquor Control Board in refusing the transfer of.a.hotel liquor license within 300 feet of the land upon which Girard College is located, finding that the ..board did. not abuse its discretion. We also 'found that'there''was''no'abuse of discretion by-the *245 board or court. It is true that in that opinion we stated: “It was not for the court below to substitute its discretion on the same facts as found by the board. On such facts it was for the court to determine whether the board had abused its administrative discretion.” But again this Court did not really consider the important change in language used by the legislature in 1949 and 1951. We were satisfied to trace our reasoning back through the various cases to the Azarewicz case, supra.
It is true that in the Her-Bell, Inc. Liquor License Case, 176 Pa. Superior Ct. 206 , 107 A. 2d 572 , the language used in the Booker Hotel case was cited with approval. I concurred in the result because the lower court sustained the action of the board and found that there ivas no abuse of discretion. I could not agree completely with the opinion because of the language: “The court of quarter sessions is not authorized to exercise administrative discretion; this is vested in the board.” This conclusion was founded upon the Hotchkiss case, which in turn was based upon the Azarewicz case, which in turn was decided before the 1949 change in language by the legislature.
Nowhere has this Court squarely met the real issue. Why did the legislature change the language as it did in 1949? Up to now we have failed to answer that question. Is it because the question cannot be answered with the same result as heretofore?
I am convinced, after thorough consideration of the language used by the legislature in 1949 and repeated in 1951, i.e., “The court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved. , .” (emphasis added), that the legislature intended the court on appeal to have administrative discretion to determine whether or not the application- should' be granted: -If *246 the legislature had intended that the board have exclusive administrative discretion, it certainly would have permitted the language to stand as it was prior to the 1949 change. We must assume that the legislature was familiar with our decision in the Azarewicz case filed November 9, 1948. No other reasonable or logical conclusion can be reached. It is not for the courts to determine this important question of public policy. It is rather for us to give effect to the intention of the legislature when that intention has been clearly expressed. 1
Aside from the logic of the situation it seems to me that the local court of quarter sessions could be trusted to exercise administrative discretion just as well or even better than could the members of the board who frequently come from other parts of the state and who could not be expected to be as familiar with local conditions as are the judges of the county involved. So long as the judges are brought into the matter at all, it seems to me that they might just as well be given the power to do a complete job.
I would affirm the order of the lower court.
Professor Clark Byse, of the University of Penna. Law School, has written a splendid article on this subject entitled “Opportunity to be heard in License Issuance.” See Pa. L.R. Vol. 101, No. 1, October, 1952, and particularly pages 82 to 87 inel. dealing with the Pennsylvania problem. In this article he states the “weighty practical reasons for not making courts super-licensing agencies.” As stated-in the opinion, however, this is a matter of policy for the determination of .the Legislature.