Board of Liquor License Com'rs of Baltimore City v. Leone

• Citation: 249 Md. 263,239 A.2d 82
• Decision Date: 08 March 1968
• Docket Number: No. 216,216
• Parties: The BOARD OF LIQUOR LICENSE COMMISSIONERS OF BALTIMORE CITY v. Vincent J. LEONE et al.
• Court: Court of Appeals of Maryland

Page 263

249 Md. 263

239 A.2d 82

The BOARD OF LIQUOR LICENSE COMMISSIONERS OF BALTIMORE CITY v. Vincent J. LEONE et al.

No. 216.

Court of Appeals of Maryland.

March 8, 1968.

Anthony M. Carey, and Jon F. Oster, Asst. Attys. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellant.

John Brockenbrough Fox, Baltimore (David A. Hyman, Baltimore, on the brief), for appellees.

Before HAMMOND, C. J., and HORNEY,

MARBURY, BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

SINGLEY, Judge.

The Board of Liquor License Commissioners of Baltimore City (the Board) is provided for by Maryland Code (1957) Art. 2B, § 148. The Board consists of three members appointed biennially by the Governor, with the advice and consent of the Senate. The chairman is designated by the Governor. § 155(d) of the Act fixes the salaries of Board members and the chairman and authorizes the Board to appoint an executive secretary and fix his salary, subject to approval by the State Comptroller. § 63(d) provides for the payment, by the Mayor and City Council of Baltimore, from license fees collected, of the salaries and expenses of the Board and its employees, as approved by the State Comptroller.

The Board is vested with authority to approve the issuance of licenses for the sale of alcoholic beverages (§ 60); to adopt rules and regulations limiting the number of licenses (§ 42); to renew licenses (§ 68); and to revoke and suspend them (§ 69). The Board is given 'full power and authority to adopt such reasonable rules and regulations as (it) may deem necessary to enable (it) effectively to discharge the duties imposed upon (it) * * *.' (§ 184(a)). Failure of a licensee to comply with the rules or regulations of the Board makes revocation or suspension mandatory (§ 69).

On 23 June 1967, the Board adopted Rule 3(e):

'No licensee, except the holder of a Class 'C' (Club) license, shall, directly or indirectly, refuse, withdraw from, or deny to any persons the services, accommodations, advantages, facilities and privileges offered on said licensee's premises on the grounds of race, color, creed or national origin.'

The appellees, duly licensed bar owners in Baltimore, on 28 June 1967, filed in the Baltimore City Court a petition for a declaratory judgment in which they challenged the validity of Rule 3(e), assigning, among their reasons, the Board's failure to comply with the rule-and-regulation-making provisions of the Administrative Procedure Act (the APA), Maryland Code (1965 Repl.Vol.), Art. 41, §§ 244-256. The Board moved to dismiss on the grounds that the Board was not a state agency to which the APA applied and that no justiciable controversy was presented. The lower court overruled the motion to dismiss, and on 20 July 1967, entered an order declaring that a justiciable controversy existed; that the Board was a state agency within the meaning of the APA; and that Rule 3(e) was invalid in consequence of the failure of the Board to comply with the APA in the adoption of the rule.

The Board appealed, contending that the appellees' petition raised no justiciable controversy, and that the Board was not a state agency subject to the APA. This was the posture in which the case was presented to us in the briefs filed by the parties and in oral argument. Under our view of the case, we do not reach the appellant's contentions. Maryland Rule 835 permits this Court, on its own motion, to dismiss an appeal not allowed by law. ¹

In Miles v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207 (1938), the Board of Zoning Appeals of the City of Baltimore attempted to appeal from an order of the Baltimore City Court which had reversed an order of the Zoning Board. Judge Offutt, speaking for this Court, pointed out that the Zoning Board which exercised quasi-judicial and quasi-legislative functions, 'has no interest, personal or official, in the matters which come before it other than to decide them according to the law and the proved fact, and it is in no sense a party to such proceedings.' 174 Md. at 561, 199 A. at 544.

After pointing out that certain boards and agencies, charged with the execution of public policy, are specifically charged by the legislature with the duty of participating in litigation affecting their decisions, ² Judge Offutt continued, 174 Md. at 562, 199 A. at 545:

'Apart from the legislative authority, it would seem clear that the Board has no more right to appeal from its own decisions to the Baltimore City Court, or, from the decisions of that court to the Court of Appeals, than a justice of the peace or such an agency as the State Industrial Accident Commission, would have to appeal from judgments of a court reversing their decisions.'

See, Annotation of McKinney, 117 A.L.R. 216 and cases there cited; Adler v. M. & C. C. of Baltimore, 242 Md. 329, 219 A.2d 22 (1966); Nuova Realty Co. v. M. & C. C. of Baltimore, 197 Md. 266, 78 A.2d 765 (1951); Roeder v. Brown, 192 Md. 639, 65 A.2d 333 (1949); Knox v. M. & C. C. of Baltimore, 180 Md. 88, 23 A.2d 15 (1941).

The Board counters with the contention that Board of Liquor License Com'rs of Baltimore City v. Keswick, 227 Md. 598, 177 A.2d 869 (1962) would seem to lend support to the theory that it may appeal from an adverse decision of a lower court. The Board can gain neither comfort nor support from the Keswick case, where the appeal was dismissed for another and equally valid reason: i. e., the absence of a variance required by Code (1957) Art. 2B, § 175(f) for an appeal to lie to this Court. Pearce v. Board of Liquor License Commrs., 228 Md. 515, 180 A.2d 651 (1962); Gianforte v. Board of License Commrs. for Baltimore City, 190 Md. 492, 58 A.2d 902 (1948).

Now we turn to a consideration of the provisions of Code (1957, 1968 Replacement Vol.) Art. 2B, § 175 relating to appeals from the Board. ³ From a careful reading of the section, it is apparent that the legislative intent was to severly limit the rights of appeal. ⁴ The action of the Board restricting a license or licensee may be appealed by the licensee to the Baltimore City Court. There is a presumption that the Board's action was proper and in the public interest, and the petitioner has the burden of proving that it was otherwise. The decision of the court is final, and no further appeal lies to this Court, except under the limited conditions described in subsection (f). Nowhere is there an intimation that an appeal by the Board of this Court will lie, and this conclusion is strengthened by the grant of authority in subsection (e)(2) authorizing the Board to be represented in the hearing in the lower court. Had the legislature intended to permit the Board to appeal from a reversal of its own decision, we are convinced it would have said so.

In the trial of the case below, and in the case before us, the Board vigorously argued that it was not subject to the provisions of the Administrative Procedure Act. Although a determination of this contention is not necessary to our decision in this case, the Board would have been in no better position before us had it attempted to invoke the APA. As Judge (later Chief Judge) Henderson, speaking for the Court, said in Md. Pharmacy Board v. Peco Inc., 234 Md. 200, 202-203, 198 A.2d 273 (1964):

'Code (1963 Supp.), Art. 43, sec. 268(d) provides for an appeal by any person to whom the Board has refused to issue a permit, or whose permit has been revoked, but it does not authorize any appeal by any other person. It is conceded, however, that the Board is an 'agency' as defined in Code (1963 Supp.), Art. 41, sec. 244 of the Administrative Procedure Act, and that the provisions of that Act are applicable. Sec. 255(a) provides: 'Right to review.-Any party aggrieved by a final decision in a contested case, * * * is entitled to judicial review thereof under this subtitle.' Sec. 256 provides: 'An aggrieved party may secure a review of any final judgment of the circuit court by appeal to the Court of Appeals.' Code (1957), Art. 5, sec. 1 provides that '(a)ny party may appeal to the Court of Appeals from any final judgment or determination of a court of law in any civil suit or action, * * *.'

'It is well settled that the provisions of Art. 5, sec. 1 do not apply to cases where the trial court exercises a special or limited jurisdiction conferred by statute. Simpler v. State, Use of Boyd, 223 Md. 456, 460, 165 A.2d 464, and cases cited. We are not here concerned with the exception where the trial court exceeds its jurisdiction. Bd. of Med. Examiners v. Steward, 203 Md. 574, 580, 102 A.2d 248. We think it is clear that the trial court had jurisdiction and did not exceed its statutory authority in reaching its decision on the law and the facts. It is also well settled that in cases where the trial court's power to review depends upon a statute, we must look to the statute to determine who may appeal. The question, then, is whether the Board can be considered an 'aggrieved party.'

'The Board's function is acting upon an application for permit under the statute is quasi-judicial and not adversary. It is only a party in the circuit court for the purpose of producing the record (cf. sec. 255(d) and Maryland Rule B7), or notifying the parties 'to the proceeding before it.' (Sec. 254 and Rule B2 d). Under sec. 255(b) the trial court may 'permit other interested persons to intervene.' In Zoning Appeals Board v. McKinney, 174 Md. 551, 564, 199 A. 540, 117 A.L.R. 207, it was said: 'Since therefore the Board (of Zoning Appeals) is not a party to this proceeding, has no interest in it different from that which any judicial or quasi judicial agency would have, which is to decide the cases coming before it fairly and impartially, (it) is in no sence aggrieved by the decision of the Baltimore City Court, * * *.' See also Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623, 51 A.2d 273 and Roeder v. Brown, 192 Md. 639, 65 A.2d 333. It may also be noted that the same phrase is used in sec....