#### Matthes et al. *v.*Hoffman.

The supreme court will quash a writ of error to a judgment on a case-stated, between a county treasurer and wholesale and retail dealers in intoxicating liquors, to determine the amount of license fees due by the defendants, where the case-stated avers that the plaintiff demanded a certain sum from each defendant for their licenses, duly granted, and refused to accept a less sum, and the defendants denied their liability to pay.

*It seems*that such an action is an 'hypothetical case, as the licenses would be revoked if the fees were not paid, and it does not appear by the case-stated that the money was paid into court or agreed to be treated as so paid.

February 20, 1889.

Error, No. 312, Jan. T. 1889, to C. P. Lebanon Co., to review a judgment for plaintiff on a case-stated, wherein H. T. Hoffman, treasurer of Lebanon Co., was plaintiff, and John Matthes and S. B. Cox were defendants, at March T. 1888, No. 78. Sterrett and Mitchell, JJ., absent.

The case-stated agreed upon the following facts, January 19, 1889:

“ The defendants are respectively in the wholesale and retail business of vending spirituous, vinous and malt liquors in Lebanon, Pa., incorporated a city on the 25th day of November, 1885, and containing a population of less than twelve thousand and more than ten thousand inhabitants; prior to which time it was a borough duly chartered by the Legislature. Since its incorporation, it has been operated and governed as a city of the fifth class under the *2Act of Assembly of May 23d, 1874, as revised and amended by an Act of Assembly entitled ‘ an Act to revise and amend an Act entitled an Act dividing the cities of this state into three classes, &c.,’ and Acts of Assembly approved thereafter and applicable to cities of the fifth class. A certificate of incorporation was issued to said city, etc.

“ In the year of 1888, the then treasurer of Lebanon county accepted and received of and from the said defendants the sum of $300 each, as the amount of money they were required to pay and he was authorized to receive for said respective licenses under the provisions of the Acts of Assembly approved May the 13th and 24th, 1887, entitled ‘ an Act to restrain and regulate the sale of vinous, and spirituous, malt or brewed liquors or any admixtures thereof’ and ‘ an Act providing for the licensing of wholesale dealers in intoxicating liquors ’ respectively, the said defendants being then and now resident within Lebanon aforesaid.

“ The present treasurer, plaintiff above named, demands the sum of $500 from each of said defendants for their licenses, which were duly granted them by the court of quarter sessions on the 12th day of January, 1889, and refuses to accept any less sum for the same for the reason that, as he contends, Lebanon aforesaid is a city of the third class under the provisions of the Act of Assembly entitled “ an Act dividing the cities of this state into three classes ” approved May 23, 1874.

“ The defendants deny the right of the said treasurer under existing laws to demand and receive of and from them the said sum of $500 each, and that said Lebanon is a city of the third class under the last mentioned Act, but contend that the said Act of May 23, 1874, as revised and amended by the Act of April x 1, 1876, is unconstitutional and void, and that, therefore, they should pay the sum of $150 each for said licenses, that being the fee required under the provisions of the said Act of May 13th and 24th, 1887, for licenses in boroughs. And further, if the above be not the law,-that the intention of the Legislature was, under the provisions of said Acts of May 13th and 24th, 1887, to fix the rate of licenses for municipalities of a population of more than ten thousand and less than thirty thousand inhabitants at the sum of $300.

“ If the court be of the opinion that the license fee of each of said defendants should be *$500,*then judgment to be entered for ' said plaintiff and against each of said defendants for that amount. If the court be of the opinion that the license of each of said defendants should be $300, then judgment to be entered for the plaintiff and against each of said defendants for that amount. If the court be of the opinion that the license fee of each of said defendants should be $150, then judgment to be entered for the plaintiff and against each of said defendants for that amount. Costs to follow the judgment and either party reserving the right to sue out a writ of error.”

*3Feb. 20, 1889.

The court, in an opinion, by McPherson, A. L. J., reported in 6 Pa. C. C. R. 487, entered judgment in favor of the plaintiff and against each of the. defendants for *$500.*

*The assignment of error*specified the action of the court in entering judgment in favor of the plaintiff and against each of the defendants for $500.

*W. D. Fisher*and *F. E.*Meily, for plaintiffs in error.

*Luther F. Houck*and *Geo. B. Schock,*for defendant in error.

Per Curiam,

There is no case before the court. Writ quashed.

The plaintiffs in error, on March 8, 1889, made a motion for re-argument, filing the following reasons :

“ The aforesaid case-stated is not founded upon the simple desire of the parties thereto to obtain, for their own benefit, the decision of the judges of this court as to the law applicable to the facts therein set forth, nor was it entered into by collusion of said parties for said purpose, but, in truth and in fact, is founded upon an actual dispute and bona fide contention between said parties, involving the rights, not only of dealers in liquor, resident in said Lebanon, but of those resident in a large number of cities throughout the state of Pennsylvania. It is, therefore, a question of great public importance, and a speedy decision of this court thereon would prevent much litigation and expense.

“ Although the money in dispute was not actually paid into court by the plaintiffs in error, yet it was in fact treated as though it had been done under the following agreement, between the said H. T. Hoffman, treasurer of Lebanon county, of the one part, and the plaintiffs in error and twenty-three other dealers in liquor, resident in said Lebanon, of the other part, viz: That each of said parties of the second part should pay the sum of five hundred dollars demanded for their licenses by the said treasurer of Lebanon county, upon the express condition that he, the said treasurer of Lebanon county, would, in case the judgment of this cou-rt fixed a less amount, refund the excess so paid.

“ Hon. J. B. McPherson, A. L. J., before whom the above case-stated was argued in the court below, authorizes us to state to this court that the above case-stated is founded upon an actual dispute and contention; that it was not entered into by collusion of the parties; that it involves a question of great public importance and that he is ready and willing to certify to said state of facts, if this court so desires.

“ The delay in the filing of these reasons in support of the motion for a re-argument of the above case, was caused by the absence from home of said Hon. J. B. McPherson, A. L. J., whom we deemed it necessary to consult, in view of the importance of the case.

*4
      *“*Your petitioners, therefore, submit to the court that said case-stated, founded on the above mentioned agreement, is the only adequate remedy whereby they could obtain a decision of this court upon the questions-of law involved, and at the same time retain the right to continue in their business.”

Per Curiam,

March 18, 1889.

Re-argument refused.

Note. — In Com. *v.*Keithan, 1 Mona. 368, a case-stated was held to present no case, which provided that, “if the court be of opinion that the sale of ice cream, cakes and bread, as before recited, was a violation of the Act of April 22, 1794, prohibiting the performance of worldly employment on Sunday, and that the defendant was liable for the payment of said penalty, *if the suit had been brought in proper time,*then judgment to be entered for the amount of the penalty, etc.” The sales were made May 20, 1888, and suit brought June 4, 1888; the Act provides that prosecution shall be commenced within seventy-two hours after the offense shall be committed. Appeal quashed.

In Gray *v.*McFall, 1 Mona. 176, a case-stated was framed between a landlord and the sheriff, the landlord claiming, from a fund realized by a sheriff’s sale, a year’s rent due by the defendant in the execution ; it did not appear that the money was paid into court or that there was an agreement to treat it as so paid. To the case-stated is added this agreement (noted in the syllabus but by an oversight omitted from the report), signed by the execution plaintiff : “ The foregoing statement is admitted to be correct for the purpose of having the question in above case decided.” The court below entered judgment for the plaintiff The supreme court quashed an appeal, saying that no case was presented.

In Frailey’s Ap., decided Feb. 25, 1890, the supreme court reversed the judgment of the court below and quashed the defective case-stated, the defect being an amendment objected to by one of the parties.