Close v. Southern Maryland Agricultural Ass'n

• Decision Date: 25 June 1919
• Docket Number: 27.
• Citation: 108 A. 209,134 Md. 629
• Parties: CLOSE et al. v. SOUTHERN MARYLAND AGRICULTURAL ASS'N.
• Court: Maryland Court of Appeals

108 A. 209

134 Md. 629

CLOSE et al. v. SOUTHERN MARYLAND AGRICULTURAL ASS'N.

No. 27.

Court of Appeals of Maryland

June 25, 1919

Rehearing Denied Oct. 8, 1919.

Appeal from Circuit Court, Prince George's County; John P Briscoe, B. Harris Camalier, and Fillmore Beall, Judges.

Petition by the Southern Maryland Agricultural Association for license to make and permit betting, pool selling, and bookmaking on the result of horse races, opposed by Charles P. Close and others. From an order directing that a license issue, subject to revocation, opponents appeal. Order reversed.

Appeal from an order of the circuit court granting an agricultural association a license to make and permit betting, pool selling, and bookmaking on the result of horse races on its grounds pursuant to Code (vol. 3) art. 27, §§ 218-221, held not open to dismissal as involving only a moot question after expiration of the time for which the license was issued.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Jackson H. Ralston, of Washington, D. C. (Frank M. Stephen, of Washington, D. C., on the brief), for appellants.

Shirley Carter, of Baltimore, for appellee.

BOYD C.J.

On the 14th of February, 1919, the appellee filed a petition addressed to the judges of the circuit court for Prince George's county, in which it made application to the court "for a license to be granted it to make and permit betting, pool selling, and bookmaking upon the result of running races of horses (under the pari-mutual system of selling pools) on its ground for thirteen (13) days, that is, for the period from April 1, 1919, to April 15, 1919, both days included, Sunday excepted." It states that the appellee is a race course and an agricultural association, and that its grounds are known as the Bowie Race Course, near the town of Bowie, in the Fourteenth election district of Prince George's county. There was filed with the application a recommendation of 35 persons, who certified that they were qualified voters of that election district, and requested the court to grant the license to the appellee. On the same day an order was passed by Judge Beall of that court granting the license prayed for, unless cause to the contrary be shown on or before the 18th day of March, 1919, provided notification be given of the filing of said petition by publication of the orders as therein directed. On March 18th the appellants filed a protest against the granting of any license permitting betting, pool selling, and bookmaking upon the results of running races of horses on the grounds of the appellee, as applied for in the petition, and assigned several causes for the protest.

The matter was set for hearing before a full bench on the 25th of March, and on that day an order was passed by two of the judges of that court directing that the clerk issue a license to the appellee; the court expressly reserving the right and power to revoke the license, if order be not maintained, et.c Judge Beall noted his dissent. An order for appeal was filed the day the order of the court was passed, and on March 27th the appellants filed a petition in which they asked that the record be removed and an appeal allowed as on writ of error or appeal as the case may be, designating three points of error.

The appellants at once instructed the clerk to make up the transcript and transmit it to this court, designating what he should include. On April 1st the appellee directed him to include the deed to it and a certificate of the president of the board of supervisors that the persons named in the recommendation above mentioned were qualified voters. The record was completed on April 2d, and received by the clerk of this court on April 3d. On the day it was received the appellants filed a motion to advance the hearing. On April 7th a reply to the motion to advance was filed, and on April 8th, the day we met for the April term, we denied the motion. One of the reasons given in the reply was that the attorney who was to appear for the appellee must prepare for argument in another case on the docket of the term. We concluded that we could not hear the case, and give it such consideration as its importance demanded, before the expiration of the time for which the license was issued.

A motion to dismiss the appeal has since been made on the ground that it is now merely a moot question. Under the circumstances, we can have no hesitation in overruling that motion. If the appellants' contention is correct that the court had no jurisdiction to pass the order directing the clerk to issue the license, the question may arise in other proceedings as to what protection from section 217 of article 27 of the Code a license so issued affords the appellee. It may be that it might still be raised by an indictment for violation of that section, but that would probably result in bringing the question back to this court for determination, if a grand jury would, or properly could, indict the appellee under the circumstances. The appellants did everything they could to have the case heard by us before the expiration of the 15 days, and the appellee opposed the application to have the case advanced.

But beyond what we have said, the lower court can still grant another license during this year, and continue to grant them from year to year, as long as the present statute remains in force, and it would not be just to it to leave the question undetermined, if there be no other reason why we cannot review the decision of that court. The reply of the appellee to the motion of the appellants to advance the hearing states that in the fall of 1917, the spring of 1918, and again in the fall of 1918, applications were made by the appellee for licenses, and after protests they were granted, but no appeal was taken. If the appellee's position is correct, the same objection might have been urged in those cases, if appeals had been taken, as they probably could not have been heard before the expiration of the times fixed for racing, unless the appellee consented to having them advanced. It might therefore go on indefinitely, without giving those claiming to show cause an opportunity to have the decision of the lower court reviewed, which, if they are otherwise entitled to appeal, ought not to be denied them on the theory that it becomes a moot question after the races are over.

There would seem to be no doubt about this court having jurisdiction to hear the appeal. The answer by the appellee to the appellants' contention that the lower court was prohibited by the Constitution of the state from granting the license is that the court acted judicially, and not merely in a ministerial capacity, and that hence article 8 of the Declaration of Rights ("that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other; and no person exercising the function of one of said departments shall assume or discharge the duties of any other") was not infringed upon by the action of the court. If that be correct, then the appeal in this case will not lie, as no appeal is provided for in the statute, under which the proceeding was taken, and no other ground for the appeal is relied on; but, if the action of the lower court was prohibited by the Constitution, then it had no jurisdiction to grant the license, and this court can entertain an appeal from its action. We might refer to many more cases, but the following are sufficient to show that, if the lower court is without jurisdiction to act, this court can review its action, either on appeal or writ of error, or of its own motion, and it is not necessary that the question of jurisdiction shall have been raised below, as section 9 of article 5 of the Code does not apply to such question: Kinnear v. Lee, 28 Md. 488, Armstrong v. Hagerstown, 32 Md. 54, Travers v. Dean, 98 Md. 72, 56 A. 388; U.S. Express Co. v. Hurlock, 120 Md. 107, 87 A. 834, Ann. Cas. 1915A, 566, and cases referred to in them. On the general question of the right of appeal, see, also, Hendrick v. State, 115 Md. 552, 81 A. 18, and Stephens v. Crisfield, 122 Md. 190, 89 A. 429; and in Beasley v. Ridout, 94 Md. 641, 52 A. 61, in which article 8 of Declaration of Rights was involved, this court acted sua sponte.

The main question in this case is an important one-not, however, for all of the reasons given by the appellants, some of which their attorneys must know, if the other appellants do not, that we cannot properly consider, and some of the statements made in their brief, as well as in the protest against the license, should not have been made. There is not a word in the record to justify them, and, while there is no evidence on the subject, several of the incorporators of the appellee are members of this bar in good standing, and there is no reason whatever for this court to assume that the other incorporators of the appellee, or those who signed the recommendation, are not good citizens and honorable men, and entitled to as much consideration by the court as the appellants are. The question before us is purely one of law, and we have no right to be governed by anything else, whatever our individual views may be as to betting on horse races, or the wisdom of such legislation as is before us.

In Ag. Soc. of Mont. County v. State, 130 Md. 474, 101 A. 139, Judge Constable reviewed the legislation in this state in reference to gaming on races, and hence we need not do so again. In that case we did not deem it necessary to decide whether the present statute imposed a judicial or a nonjudicial duty upon the courts, because it was shown that the society had not made application to the court for a license for the time involved, and hence it became immaterial to...