OPINION BY WOODSIDE, J., September 12, 1961:
The constitutionality of the amendment to § 404 of the Liquor Code of April 12, 1951, P.L. 90, made by the Act of August 25, 1959, P.L. 746, 47 P.S. § 4-404, is before us for determination in this case. The Court of Quarter Sessions of Montgomery County held that the amendment constituted a delegation of legislative powers in violation of Article 2, § 1 of the Pennsylvania Constitution.
The amendment added the following to § 404, supra: "And provided further, That the board shall refuse any application for a new license or the transfer of any license to a new location if, in the board's opinion, such new license or transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed:"
"The Board is of the opinion that under all of the evidence, the issuance of a restaurant liquor license for this establishment would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of 500 feet of the premises, and that, as provided by law, the application must be refused."
The applicant appealed to the court below which granted the license on the ground that its refusal was warranted only by the Act of August 25, 1959, P.L. 746, supra, which the court felt was an unconstitutional delegation of legislative power to the Pennsylvania Liquor Control Board. The board appealed to this Court, and the City of Philadelphia, which is interested in supporting the constitutionality of the amendment, assisted us by filing a brief as amicus curiae.
Article 2, § 1 of the Pennsylvania Constitution provides: "The legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives." As the legislative power was vested in the General Assembly by the people, that power may not be placed elsewhere except by the people through constitutional change. The General Assembly may not delegate legislative power to the judiciary, nor to the executive, nor to any independent board or commission.
Justice AGNEW in his often repeated statement set forth the law in Locke's Appeal, 72 Pa. 491, 498 (1873) as follows: "The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend." Former Chief Justice STERN more recently stated the rule as follows: "While the legislature cannot delegate the power to make a law, it may, where necessary, confer authority and discretion in connection with the execution of the law." Belovsky v. Redevelopment
In the amendment before us, the legislature delegated to the Liquor Control Board the power to determine whether selling liquor at a new establishment in certain neighborhoods would be detrimental to the welfare, health, peace and morals of the inhabitants of that neighborhood.
When the legislature confers authority to determine facts upon which the law is to operate, "`the legislative body must surround such authority with definite standards, policies and limitations to which such administrative officers, boards or commissions, must strictly adhere and by which they are strictly governed . . . . If the legislature fails, however, to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad its attempt to delegate is a nullity: Schechter Poultry Corp. v. United States, 295 U.S. 495; Panama Refining Co. v. Ryan, supra; O'Neil v. Insurance Co., 166 Pa. 72': Holgate Bros. Co. v. Bashore, 331 Pa. 255, 260, 263, 200 A. 672." Bell Telephone Co. of Pa. v. Driscoll, 343 Pa. 109, 116, 21 A.2d 912 (1941).
The legislature may establish primary standards and impose upon the board the duty to carry out the declared legislative policy. Belovsky v. Redevelopment Authority of Philadelphia, supra, 357 Pa. 329, 342, 54 A.2d 277 (1947). It is sufficient if the board is circumscribed by definite standards found "from the language of the statute in its entirety." Commonwealth of Pennsylvania Water & Power Resources Board v. Green Spring Co., supra, 394 Pa. 1, 11, 145 A.2d 178 (1958).
In the recent case of Dauphin Deposit Trust Co. v. Myers, supra, 388 Pa. 444, 451, 130 A.2d 686 (1957), the Court said that the Banking Code "clearly and specifically set up a standard — a reasonable and proper standard — namely, the adequacy or inadequacy of banking facilities." In Archbishop O'Hara's Appeal, supra, 389 Pa. 35, 50, 131 A.2d 587 (1957) the Court said: ". . . section 1413 of this ordinance provides, inter alia: `In interpreting and applying the provisions of this Ordinance they shall be held to be the minimum requirements for the promotion of the health, safety, morals and general welfare of the Township.' It is this section which provides sufficient appropriate conditions and safeguards controlling the board's discretion to render valid the ordinance." See also Clinton Management, Inc. Liquor Case, 188 Pa.Super. 8, 14, 145 A.2d 873 (1958).
From the passage of the Act of May 13, 1887, P.L. 108, to the date of prohibition, the courts of this Commonwealth exercised the authority given them by the legislature to grant or refuse liquor licenses. The standard established by law was found in § 7 of the Act in the following language. The court shall refuse the
The standard of necessity recognized during those many years was less definite than the standards prescribed for the board in the provision of the Liquor Code now before us.
The legislature here provided that a liquor license should be refused if the issuance would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet, and gave to the Pennsylvania Liquor Control Board the power to determine this fact. The board is given a fact to determine, and when the fact is determined, the law must be applied as set forth in the statute.
The court below believed that it had support for its position in Kellerman v. Phila., 139 Pa.Super. 569, 13 A.2d 84 (1940); Bell Telephone Co. of Pa. v. Driscoll, supra, 343 Pa. 109, 21 A.2d 912 (1941); and Holgate Bros. Co. v. Bashore, supra, 331 Pa. 255, 200 A. 672 (1938), but it gives most space to Judge ERVIN'S dissent in Obradovich Liquor License Case, 180 Pa.Super. 383, 387, 119 A.2d 839 (1956).
In each of the first three cases, the court examined a statute in which the legislature had authorized a new regulation to be applied to legitimate private businesses by a governmental agency without restriction as to the circumstances under which the law was to operate. This has little relation to the amendment here under consideration, which specifies the action to be taken upon the determination of a definite fact. A dissenting opinion is not authority upon which a party can rely.
This brings us to the question of whether the evidence supports the finding of the board that the issuance of the license would be detrimental, or whether the board abused its discretion in this case. The court below said, concerning the evidence taken before it, that "The protestants included public officials, church officers, church members, nearby residents of the premises, and to say the least the protest was long, loud, vigorous and impressive." That the court recognized the protests as long, loud and vigorous is not important, but that they were "impressive" indicates that their testimony was not without merit. Among those expressing objection were the Police Department, the Township Board of Commissioners and the Antioch Baptist Church. There had been a fight on the applicant's
The order of the court below is reversed, and the liquor license is refused.