Brashears v. Lindenbaum

• Decision Date: 21 January 1948
• Docket Number: 72.
• Citation: 56 A.2d 844,189 Md. 619
• Parties: BRASHEARS et al. v. LINDENBAUM.
• Court: Maryland Court of Appeals

56 A.2d 844

189 Md. 619

BRASHEARS et al. v. LINDENBAUM.

No. 72.

Court of Appeals of Maryland

January 21, 1948

Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.

Proceeding on the application of Morris Lindenbaum to the Board of License Commissioners of Baltimore County for an off-sale beer, wine and liquor license. From a judgment of the Circuit Court reversing a decision of the commissioners against the application, Wallace M. Brashears and others and the Board of Education of Baltimore County appeal.

Appeals dismissed.

M William Adelson, of Baltimore, and Johnson Bowie, of Towson for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

This appeal is from a judgment of the Circuit Court for Baltimore County, reversing a decision of the Board of License Commissioners of Baltimore County. As important and novel procedural questions are raised by the appellee's motion to dismiss the appeal, it is necessary to set out the proceedings in detail.

On January 6, 1947, Morris Lindenbaum, operating an established drug store business at 5 South Main Street, Reisterstown, Maryland, in a commercial zone, filed an application for a class A Beer, Wine and Liquor License (off-sale), in regular form. The Board held a hearing on January 29, 1947. On behalf of the applicant it was shown that there was no package goods (off-sale) liquor store in Reisterstown, although there were three licensees of that class in Pikesville, a community four or five miles away. It was shown that the applicant was a registered pharmacist, of good character and reputation, who had been in business for over ten years, and had an investment of over $50,000 in his place of business. A number of witnesses testified that they were in favor of the license because the only places in Reisterstown where package goods could be purchased were in the two taverns where they did not like to go, and that public convenience would be served by the granting of the license. The Board questioned the applicant as to whether he would agree to partition off the package department and maintain a separate outside entrance. The chairman stated: 'We are not going to have children going into package liquor stores where candies, ice cream and other things are sold'.

The Board was then informed by counsel that there were about thirty-eight protestants present. The Board indicated that it only desired to hear five or six witnesses. Robert C. McKee, counsel to the Board of Education of Baltimore County, testified that he was opposed to having liquor sold in a drug store; that this store was a favorite resort for young people, particularly children attending the Franklin High School located about three blocks away. Raymond S. Hyson, a former principal of the Franklin High School, testified to the same effect, as did witnesses representing the 4-H Club, the Girl Scouts, the Glyndon Methodist Church and the Lutheran Church at Reisterstown. None of the witnesses questioned the character or standing of the applicant.

The Board denied the application, advising the applicant by letter dated January 30, 1947, that its refusal was 'in view of the substantial protest * * * by residents of the neighborhood and the public school authorities of Baltimore County, and for the further reason that in the opinion of the Board such a license in your drugstore would not be conducive to the public good, particularly in view of the fact as was shown at the hearing that your establishment is a meeting place and rendezvous of many teen age pupils who attend the Franklin High School'. On February 7, 1947, Lindenbaum appealed to the Circuit Court. Time for hearing the appeal was extended for 30 days by order of Court, pursuant to agreement of counsel.

The case was heard in the Circuit Court on May 7, 1947, upon the transcript of record before the Board. After argument, the Court (Murray, J.) delivered an oral opinion, in the course of which he expressed the view that if the statute were strictly followed an appeal to court would be 'nugatory and deceptive to the public', because 'whether evidence is substantial or not depends on the point of view of the tribunal passing upon it. That's true of the Court. Whether evidence is substantial in a case submitted to me or not depends on whether I believe it. If I believe it, it is substantial, if I disbelieve it, it is not substantial * * *. That, in my judgment, is not this Court's function, and until I am reversed by the Court of Appeals, I do not intend to proceed in that manner. * * * Of course, on the other hand it requires me in many instances, erroneously perhaps, to sit as a super liquor board. But the whole proceeding is unsatisfactory, * * * the question of whether to grant or reverse a particular liquor license application isn't a question of law. * * * It's only slightly a question of fact * * * possibly the only basis upon which the license Board can act, is a matter of policy * * *. I doubt very seriously whether on the question of policy there ought to be any appeal to the court at all. But if there is an appeal, I am certainly of the belief that the appeal ought to be in such a manner as to give the Court the legal right to pass upon the factuals. * * * The statute perhaps hasn't done it, but I construe the statute as having done it as far as I am concerned'. After reviewing the testimony, the Court characterized the argument as to the harmful effect upon school children as 'rather far-fetched' and stated that 'every community needs an off-sale establishment, at least one, to better control and manage the sale of alcoholic beverages. * * * I see not one conceivable danger or error in granting this license. * * * I don't criticise the Board for its insistence in many instances that a separate entrance be made to the drug store, but I think it is open to objection'. On the same day the Court reversed the action of the Board.

On June 5, 1947, an order of appeal to the Court of Appeals was filed by ten persons, only one of whom, Wallace M. Brashears, testified before the Liquor Board. On June 6, 1947, an order for appeal was filed on behalf of the Board of Education of Baltimore County. On July 15, 1947, the individual appellants filed (without leave of Court) a 'Statement in Support of Order of Appeal', in which they alleged that the decision of Judge Murray was 'erroneous and in conflict with a number of decisions previously rendered by other Judges of the State on the same questions decided by Judge Murray'. In particular, they alleged that the decision was in conflict with a decision of Judge Mason, rendered April 27, 1947, in the Baltimore City Court, in the case of Flax v. Board of License Commissioners for Baltimore City; a certified copy of this opinion was attached to the 'Statement'. The conflict was alleged to be 'with regard to the meaning of 'substantial evidence' and the relationship between the administrative board and the Court on appeal'.

It does not appear from the opinion of Judge Mason what type of license was involved. The Court stated that the main point was 'whether or not there was any substantial evidence to support the Board's decision'. * * * 'You have the testimony of some people and, whatever I may think about their views or the Board may think about their views, they did protest the granting of a license, and they do live in the neighborhood and, on the question whether or not this place is in such close proximity to Seton Institute as to really affect it or not, it seems to me that I would be the one who was taking an arbitrary position by saying that the Board is wrong and that it would not be of any interest to people in Seton Institute * * *. I really believe that the decision of the Board is supported by substantial evidence. I am not saying that, if I had to make the first decision, my decision would be the same as the Board's. I have to affirm the decision of the Board where there is any substantial evidence to support its finding'.

On November 5, 1947, the appellee filed in this Court motions to dismiss the appeals on the grounds (1) that there was no showing that the appellants were qualified to maintain the appeals, (2) that none of the appellants were parties to the cause in the Circuit Court, and (3) that there was no showing of a conflict of decision within the meaning of the statute. On December 12, 1947, the individual appellants filed in this Court affidavits as to their residence in the First Precinct of the Fourth Election District, embracing the whole of Reisterstown.

The applicable statutory provisions are found in art. 2B sec. 63 of the Annotated Code 1943 Suppl., codified without substantial change as sec. 152, by ch. 501 of the Acts of 1947. Sec. 63(1) provides: 'Any licensee or applicant for a license, or any group of not less than ten persons who are residents or real estate owners in the precinct or voting district in which the licensed place of business is located or proposed to be...