Burley v. City of Annapolis

• Decision Date: 10 November 1943
• Docket Number: 29.
• Citation: 34 A.2d 603,182 Md. 307
• Parties: BURLEY v. CITY OF ANNAPOLIS.
• Court: Maryland Court of Appeals

34 A.2d 603

182 Md. 307

BURLEY v. CITY OF ANNAPOLIS.

No. 29.

Court of Appeals of Maryland

November 10, 1943

Appeal from Circuit Court, Anne Arundel County; Ridgely P. Melvin Judge.

Petition by John Burley against the Mayor, Counsellor and Aldermen of the City of Annapolis for a writ of mandamus to compel return of plaintiff's license to operate two billiard tables. From an order dismissing the petition, the plaintiff appeals.

Order reversed without a remand.

DELAPLAINE and COLLINS, JJ., dissenting.

Albert J. Goodman, of Annapolis, for appellant.

Henry J. Tarantino, of Annapolis, for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, ADAMS and BAILEY, JJ.

MARBURY Judge.

Appellant a resident of Annapolis, obtained from the municipal authorities on May 1, 1942, a license to operate two billiard tables for which he paid the required fee of $10.50. On December 14, 1942, after seven months and a half of the year for which the license was issued had elapsed, the city authorities passed a resolution revoking his license. The city police then entered his premises and removed the license issued to him by the city, whereupon he filed a petition for the writ of mandamus to compel its return. The court below declined to grant the writ. From the order dismissing the petition this appeal is taken.

The municipal authorities of Annapolis have power under the charter of the city to license billiard tables, and they also have power to prevent and remove nuisances. Code of Public Local Laws of Maryland, Article II, Section 24. In fulfillment of their charter powers they provided for billiard table licenses, and in the ordinance included certain restrictions on the use of such licenses. The premises were not to be kept open between midnight and 7:00 A. M. No minor under the age of nineteen years could be admitted to the premises. Any windows or glass doors facing on any street or alley must be transparent so that the interior could be plainly seen. A fine is provided for violation of any of these regulations, and it is further stated that 'upon a second conviction under this section the license granted to said person or persons so offending shall be revoked'. Code of the City of Annapolis, Article VI, Section 23.

The appellant was not convicted either a first or a second time for the violation of any of the named regulations. He had, however, been fined by a Trial Magistrate on October 3, 1942, on a plea of guilty of operating a gambling house on the premises. The Police Commissioner brought this fact to the attention of the municipal authorities, and, according to the agreed statement of facts in the record, the commissioner further stated that the premises had been raided on three previous occasions of which the dates are not given. The appellant was not, at these times, the operator or lessee. In response to the request of the Police Commissioner, the municipal authorities summarily revoked the appellant's license.

Whether the license ordinance is a revenue act or a regulatory measure is not important here. We are not construing the ordinance or its conditions. We are concerned with the question whether the city authorities could revoke the license for causes not mentioned in the ordinance. The city could have required, as a condition precedent to granting a license, that the applicant show evidence, in some form, of his good character, or that the proposed place of amusement was not objectionable to those within a reasonable distance of its location. No conditions precedent were, however, prescribed. Anyone could obtain the license, whether or not he had been previously convicted of any offense. It was not necessary to advertise the application, nor was any hearing required to be held upon it. All the conditions mentioned by the city in its ordinance were conditions subsequent to the issuance of the license. Gambling on the premises was not one of those included.

Some jurisdictions have held that where a licensee takes a license subject to the condition that it may be revoked at the pleasure of an authority, then it can be so revoked without any hearing. Commonwealth v. Kinsley, 133 Mass. 578; Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95, 126 N.E. 456; People ex rel. Lodes v. Dept. of Health, 189 N.Y. 187, 82 N.E. 187, 13 L.R.A.,N.S., 894; State ex rel. Nowotny v. Milwaukee, 140 Wis. 38, 121 N.W. 658, 133 Am.St.Rep. 1060. It has been held elsewhere that even if the ordinance stated that the license could be revoked at any time, the licensee was entitled to notice and hearing. Angelopulos v. Bottorff, 76 Cal.App. 621, 245 P. 447; Carroll v. California Horse Racing Board, 16 Cal.2d 164, 105 P.2d 110. We have no such case here. We have the authority granting the license pointing out specifically in its ordinance certain causes for which a license can be revoked, and then we have a summary revocation for other causes.

There is a wide distinction between a statute or an ordinance under which a licensee knows that he holds his license at the pleasure of the governing authority, and a statute or an ordinance which contains no such provision. In the one case, revocation is not arbitrary because it is a part of the condition upon which the license was obtained. In the other case, it may be extremely arbitrary, and if permitted, leaves a licensee with no security or redress. In the case before us the licensee had a right to believe from the inclusion of certain conditions of revocation in the ordinance that his license could not be taken away for other reasons. If the municipal authorities could take his license away at any time for any reason, it was not necessary for them to specify any causes for revocation in the ordinance. The fact that they did so shows that they contemplated the exercise of no general power of revocation, and did not intend that such action should be taken except for the causes enumerated. The licensee is bound by the expressed conditions, and the municipal authorities are bound by those implied.

In those cases where attempts have been made to revoke under an authority not reserved in the granting statute or ordinance, there seems to be a unanimity of holding that it cannot be done. The general law on the subject is thus stated in 33 Am.Jur., page 382, '* * * Where a statute or ordinance authorized the revocation of a license for causes enumerated, such license cannot be revoked on any ground other than the causes specified'. See also 37 C.J. 247, paragraph 110. Stone v. Fritts, 169 Ind. 361, 82 N.E. 792, 15 L.R.A.,N.S., 1147, 14 Ann.Cas. 295; Wheeling, etc., R. Co. v. Triadelphia, 58 W.Va. 487, 52 S.E. 499, 4 L.R.A.,N.S., 321; Peterson v. Guernsey, 26 Wyo. 272, 183 P. 645; Spiegler v. Chicago, 216 Ill. 114, 74 N.E. 718; Vanaman v. Adams, 74 N.J.L. 125, 65 A. 204; Lyman v. Malcolm Brewing Co., 160 N.Y. 96, 54 N.E. 577; State v. Louisiana State Boxing Commission, 163 La. 418, 112 So. 31; State v. Charlesworth, 141 Or. 290, 16 P.2d 1116, 17 P.2d 1104; Walker v. San Gabriel, Cal.App., 122 P.2d 634; Royal Highlanders v. Wiseman, 140 Neb. 28, 299 N.W. 459; Commonwealth v. Briggs, Quar.Sess., 34 Pa.Dist. & Co.R. 97.

The argument on behalf of the city is that it is acting under its nuisance powers, that a gambling house is a nuisance, and that in taking away the billiard table license of the appellant, it is preventing a nuisance. A sufficient answer to this theory is that the facts do not support it. The authority given the city by its charter, Code of Public Local Laws, Article II, Section 24, reads as follows: 'The Mayor, Counselor, and Aldermen shall have power to enact all laws and ordinances necessary * * * to prevent and remove nuisances'. It is not anywhere shown in the record that the municipal authorities have passed any ordinance, affecting all citizens alike, and providing a method for the prevention and removal of nuisances. In the absence of such showing it may be presumed that there is no such ordinance.

And nuisances which are to be removed are only those so declared or which are such by common law. Jewel Tea Company v. Bel Air, 172 Md. 536, 192 A. 417.

Public nuisances, that is to say, those nuisances which have a common effect and produce a common damage, are usually placed in three classifications: First, those which are nuisances per se or by statute; second, those which prejudice public health or comfort such as slaughterhouses, livery stables etc.; third, those which in their nature are not nuisances, but may become so by reason of their locality, surroundings, or the manner in which they may be maintained. Dillon on Municipal Corporations, Fifth Ed., paragraph 690, Volume II, pages 1044-1045. The same eminent authority on page 1046 says: 'As to this third class * * * while they may be abated under the power conferred by statute, the proper construction of the power in respect to such things is, that the city has authority to declare by general ordinance what shall constitute a nuisance', and further, 'as to the third class, it is for the courts to determine whether...