Baltimore Retail Liquor Package Stores Ass'n, Inc. v. Kerngood

• Decision Date: 14 January 1937
• Docket Number: 79.
• Parties: BALTIMORE RETAIL LIQUOR PACKAGE STORES ASS'N, INC., et al. v. KERNGOOD et al. [*]
• Court: Maryland Court of Appeals

189 A. 209

171 Md. 426

BALTIMORE RETAIL LIQUOR PACKAGE STORES ASS'N, INC., et al. v. KERNGOOD et al. ^[*]

No. 79.

Court of Appeals of Maryland

January 14, 1937

Appeal from Baltimore City Court; Eugene O'Dunne, Judge.

Mandamus proceeding by the Baltimore Retail Liquor Package Stores Association, Incorporated, and others, against Morton J Kerngood and others, constituting the Board of License Commissioners for Baltimore City, and another. From an order denying the writ and dismissing the petition therefor, the Baltimore Liquor Package Stores Association, Incorporated and others appeal.

Order affirmed.

Argued before BOND, C.J., and PARKE, SLOAN, SHEHAN, and JOHNSON, JJ.

Morton M. Robinson, of Baltimore (Herman Samuelson and Jerome Robinson, both of Baltimore, on the brief), for appellants.

Randolph Barton, Jr., and Lee S. Meyer, both of Baltimore, for appellees.

BOND Chief Judge.

The case is one of construction of a statute. Section 21 of article 2B of the Code (Code Pub.Gen.Laws Supp.1935), enacted at the Extraordinary Session of the General Assembly in 1933 chapter 2, on the subject of licenses for the sale of alcoholic beverages, provides that no more than one license except by way of renewal, shall be issued to any person for the use of any corporation in any city of the State, and no more than one for the same premises, "provided that in Baltimore City any * * * corporation operating more than one restaurant or hotel or more than one retail drug store at the time of the passage of this Article shall be entitled to obtain a license for each such place of business upon the filing of a separate application and the payment of a separate fee for each place of business." The Read Company at the time of the enactment maintained more than one retail drug store in the city, and obtained a license for each. A Peoples Service Drug Stores, Inc., then maintained five stores, but did not apply for licenses in 1933 or 1934. In September, 1935, however, shortly before a sale of its stores to the Read Company, the Peoples Stores obtained licenses for all of them, and transferred the licenses to the Read Company. In 1936 the Read Company applied for renewals of these licenses, along with those of its original stores, and the present appellants, owners of licensed retail stores for sale of liquor in packages, and, as to the individual complainants, taxpayers of the city, protested the renewal of the purchased licenses, on the ground that the statute permitted any one drug store operator to have licenses only for stores operated at the time of the enactment in 1933, and their protest having been overruled, and the purchased licenses renewed, filed a petition for the writ of mandamus to compel the License Commissioners to procure a surrender or revocation of them. The Read Company was permitted to intervene as a respondent. The question of law was submitted by all parties on a case stated under section 133 of article 75 of the Code, and on it the trial court denied the writ, dismissing the petition for it. The appeal is from that order.

At the argument, a question was raised of the right of the petitioners to invoke the process of the court to enforce observance of the law by the administrative body, and while counsel for both parties urge that their question of construction of the law be decided nevertheless, and there is a reason for deciding it, the court is of opinion that the question of right to sue having been raised it cannot be passed unnoticed. Under the decisions of this court the complainants would not be entitled to the writ of mandamus even if the commissioners were found to have acted on an erroneous construction of the law; and for that reason the decision below must be affirmed.

The courts of the State will entertain jurisdiction of suits by citizens and taxpayers for the writ of mandamus, or that of injunction, to correct unlawful action by municipal officers when the action may injuriously affect rights and property of the parties complaining. And according to past applications of the rule, the interest or injury which will support such a suit is broadly comprehensive. Baltimore v. Gill, 31 Md. 375, 395; St. Mary's Industrial School v. Brown, 45 Md. 310, 326; Pumphrey v. Baltimore, 47 Md. 145, 153, 28 Am. Rep. 446; Konig v. Baltimore, 128 Md. 465, 477, 97 A. 837; Levering v. Park Commissioners, 134 Md. 48, 59, 106 A. 176, 4 A.L.R. 374; Thomas v. Field, 143 Md. 128, 141, 122 A. 25; Sun Cab Co. v. Cloud, 162 Md. 419, 427, 159 A. 922; Jones v. Gordy, 169 Md. 173, 178, 180 A. 272. It may seem to have been slight in some instances. And in a case somewhat similar to the present one, no objection to the parties having been raised, their right or lack of right was not considered. Maryland State Funeral Directors' Ass'n v. State Board, 150 Md. 294, 133 A. 62. But the court conceives the rule as stated to be unchanged. Sun Cab Co. v. Cloud, supra. In this instance, there is no levy of taxes or outlay of public money to affect the petitioners as taxpayers. As holders of liquor licenses they have no franchises or exclusive privileges to be affected; they have only permits to engage in the business of selling alcoholic liquors. Fell v. State, 42 Md. 71, 89, 20 Am.Rep. 83; Clark v. Tower, 104 Md. 175, 181, 65 A. 3; Ruggles v. State, 120 Md. 553, 560, 87 A. 1080; section 19 of the statute, Act of 1933, chapter 2. The interest which impels them to sue is only that of business advantage in keeping down the number of their competitors. They are not entitled in law to any advantage in a restricted number; it was not within the purpose of the statute to restrict competition for the benefit of any licensee; and in the accomplishment of the purpose which was sought, whatever it may have been, the petitioners are entirely without special interest. Applying by an agency, in the association named, would be open to the further objection that parties cannot sue by agents. Ness v. Baltimore, 162 Md. 529, 538, 160 A. 8.

In a case for the construction of a statute it is a mistake to refer the court to reports of the intention of the draftsmen, for the law is that which would be understood by the Legislature in its enactment and by the people for whose regulation it is provided. "The intention of the draftsman of an act, or the individual members of the legislature who voted for and passed it, if not properly expressed in the act, it is admitted, has nothing to do with its construction; the only just rule of construction, especially among a free people, is the meaning of the law as expressed to those to whom it is prescribed, and who are to be governed by it." Keyport & M. P. Steamboat Co. v. Farmers' Transp. Co., 18 N.J. Eq. 13, 24; Richmond v. Supervisors, 83 Va. 204, 212, 2 S.E. 26; People v. Smith, 78 Hun, 179, 181, 28 N.Y.S. 912; Sutherland, Statutory Construction (2d Ed.) § 470. The court has therefore excluded from consideration all mention of the intention of the draftsmen of this act.

Section 21 does not completely except restaurants, hotels, and drug stores from the general prohibition against the issue of more than one license to any person, as if the words of the provision were: No more than one license shall be issued to any person except operators of restaurants, hotels and drug stores; or, no more than one license shall be issued to any one person, except that any number may be issued to operators of restaurants, hotels, and drug stores. The exception is circumscribed, so that the general prohibition stands as to all, except that operators of more than one restaurant hotel, or drug store at the time are entitled to obtain a license for each such place of business. Those existing operators may have licenses for their existing places of business, and the section stops with that provision for existing stores. No reference is made specifically to licenses for additional stores acquired by any one of the operators subsequently, by assignment from another operator. And for the petitioners, on the one side, it is argued that the words and meaning of the section being plain, they are to be given their natural effect, without interference by the courts by assumption of a purpose at variance with them, and adaptation of the words to the purpose; and that when the Legislature has specified an exception to its general prohibition, that, and that only, can constitute the exception, the prohibition remaining applicable beyond it, and not subject to further judicial exception or modification. Alexander v. Worthington, 5 Md. 471, 485; Maxwell v. State, 40 Md. 273, 291, 302; State Tax Commission v. Harrington, 126 Md. 157, 166, 94 A. 537; Williams v. State, 144 Md. 18, 21, 22, 123 A. 457. "It is said that the function of a proviso is that of limiting and qualifying the language of the statute, and not that of enlarging or extending the act or section of which it is a part, and that a proviso should always be construed with reference to the immediately preceding parts of the clause or section to which it is attached." Wolf v. Bauereis, 72 Md. 481, 485, 19 A. 1045, 1047, 8 L.R.A. 680. "The provision is in the nature of a proviso, and must be construed accordingly, by giving it a strict construction and restricting the exception within the limits which the language naturally...