
    King’s Application.
    A petition to the supreme court for an alternative mandamus, to show ■cause why the judges of the court of quarter sessions in a certain county should not grant a license to sell liqtiors by retail, under the Act of May 13,1887, averred that the petitioner had complied with all the requirements of the Act; that apetition in favor of the application had been presented to the court, signed by 595 residents of the borough in which the application was made, averring that the house and the license were necessary for the accommodation of the public and the entertainment ■of strangers and travelers; that a remonstrance had been presented, signed by 843 citizens of the borough, alleging that the license to sell liquors at the place named in the application was not necessary; that the petitioner offered to give bond and was ready to pay the fees required by the Act; but the court refused to grant the license applied for, on the ground that, by reference to the petitions and remonstrances, it appeared that there was a preponderance of popular opinion against the granting of any license and that therefore all licenses in the county were refused. The petition further averred that the court did not consider the necessity of the license in this case, and that, by not so doing, the discretion, vested in the court by the law, had not been exercised; and prayed for an alternative mandamus, to show cause, and afterward a peremptory mandamus to compel the court to decide the application in accordance with the law. Writ refused.
    Jan. 7, 1889.
    Petition for alternative mandamus to the judges ■of tlie Court of Q. S. Warren Co., to show cause why a retail liquor license should not be granted.
    The petition set forth that the petitioner was the owner and proprietress of a hotel, known as the Carver House, situate in the borough of Warren, which hotel had been owned and conducted by her from May, 1882, to July, 1888 ; that on May 12, 1888, she filed her petition with the clerk of the court of quarter sessions, in accordance with the terms of the Act of May 13, 1887, for a license to sell vinous, spirituous, malt and brewed liquors at retail at the hotel aforesaid, for one year from July 1, 1888 ; that she had paid the necessary fees; that the application for the license had been ■duly advertised in two newspapers; that the petition set forth all the facts necessary, under the Act, to obtain a license, reciting the petition at length; that there was annexed to the petition a certificate signed by twelve reputable qualified electors of the borough of Warren, in form required by § 6 of the Act; that a petition, signed by 595 residents of the borough, had been presented to the court, which petition averred that both the house and the license were “ necessary for the accommodation of the public and the entertainment of strangers and travelers”; that a remonstrance was also filed against the granting of the license signed by 843 citizens of said borough on the sole ground that “ a license to sell the liquors authorized by the license asked for, and at the place named in the said application, is not necessary for the accommodation of the public and the entertainment of strangers and travelers ”; that no charge was made that petitioner had ever violated the liquor laws, or that the Carver House was not necessary for the accommodation of the public, or that the provisions of the Act had not been complied with in every particular ; that, notwithstanding the petitioner offered a bond and was ready to pay the fees, the application of the petitioner, and all other applications for license in Warren county, were refused, in an opinion in which the court took the ground that, under the Act, the court was bound to ascertain from the petitions and remonstrances whether, “ in popular estimation,” the. granting of licenses within the county was necessary for the accommodation of the public and the entertainment of strangers and travelers. The court referred to the petitions and remonstrances and was of opinion that .there was a very large aggregate preponderance of remonstrances and concluded that, in popular estimation, there was no necessity for granting licenses within the county. The petitions, remonstrances and opinions were given in full in the petition.
    The petitioner further averred that the court did not consider the necessity of her house in acting upon her application and “ that, by not so doing, the said court wholly neglected to exercise the discretion vested in the said court by law,” and that she “ is entitled by law to have the necessity of the said house considered and passed upon by the said court; that from a decree of the said court there is no appeal, no bill of exceptions and no writ of error.”
    The petitioner prayed, 1st, for an alternative mandamus to show cause why the prayer of the application should not be granted; and, 2d, a peremptory mandamus, to require the court to consider and decide her application in accordance with -the provisions of existing law, making the qualifications of the petitioner and the necessity of the hotel for the accommodation of the public, and not popular sentiment, the criterion to test the propriety of granting the license.
    
      R. Brown, C. W. Stone, H. E. Brown and W. E. Rice, for petitioner.
    It is not the duty of the court to say whether or not a license to sell intoxicating liquors is necessary. The law fixes that and the responsibility of it rests with the legislature. The Act of 1887, P. L. 108, specifies particularly the necessity of the place. It is the duty of the court to decide whether a hotel is necessary. Schlaudecker v. Marshall, 72 Pa. 200; Leister’s Appeal, 10 Cent. R. 68; Raudenbuseh’s Petition, 120 Pa. 343; Lackawanna County Licenses, 5 Pa. C. C. R. 462. If an application is refused because it is not believed that a license to sell intoxicating drinks is necessary, the application is in the same condition as if it had not been considered.
    In Schlaudecker v. Marshall, supra, the court exercised its discretion and licensed as many places as were deemed necessary. In this case, all applications have been refused.
    If, under the Act of May 13, 1887, it were left to the residents of a borough, township or county to say whether a license is necessary or not, the Act would be unconstitutional, as being in conflict with § 7, Art. fn, of the constitution. Frost v. Cherry, 22 W. N. C. 368.
    Mandamus is the petitioner’s only remedy. Com. v. McLaughlin, 120 Pa. 518; Virginia v. Rives, 100 U. S. 323.
    Jan. 21, 1888.
   Per Curiam,

Mandamus refused.

A. B. W.  