Opinion
January 14, 1944.
March 20, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 6, May T., 1944, from judgment of C. P. Dauphin Co., Com. Docket 1942, No. 541, in case of Pennsylvania Distilling Company, Inc., v. Frederick T. Gelder et al. Judgment affirmed.
Mandamus proceeding.
Judgment entered in favor of plaintiff, opinion by HARGEST, P. J. Defendants appealed.
Harry F. Stambaugh, with him Horace A. Segelbaum, Deputy Attorney General, and James H. Duff, Attorney General, for appellants.
Thomas D. Caldwell, of Caldwell, Fox Stoner, for appellee.
The Pennsylvania Distilling Company filed its claim for $12,794.28 for liquors sold by it to the Pennsylvania Liquor Control Board. The Board claimed credit of this sum on the basis of alleged discounts earned. The claim was heard by the Auditor General and the State Treasurer under the Act of March 30, 1811, P. L. 145, 5 Sm. L. 228, Sec. 29, amended by the Fiscal Code of 1929, P. L. 343, Secs. 1003-1004, and this tribunal awarded the claimant the total sum claimed. No petition for settlement or review was filed by the Liquor Control Board. The Board refused to pay the award and a petition for mandamus was presented to the Dauphin County Court of Common Pleas. The return filed by the Liquor Control Board set up the defense that the Auditor General and State Treasurer failed to request the advice of the Attorney General on the legal questions involved and refused to accept and follow the law set forth in the brief of the Department of Justice. The Court below directed a peremptory mandamus to issue for payment of the award to the Distilling Company.
For the reasons set forth in our opinion filed contemporaneously herewith in the case of the Merchants' Warehouse Company v. Gelder, 349 Pa. 1, in which the same legal question is involved, the judgment of the Court below is affirmed.