Federico v. Bratten

• Decision Date: 17 March 1943
• Docket Number: 37.
• Citation: 30 A.2d 776,181 Md. 507
• Parties: FEDERICO v. BRATTEN et al., State License Bureau.
• Court: Maryland Court of Appeals

30 A.2d 776

181 Md. 507

FEDERICO v. BRATTEN et al., State License Bureau.

No. 37.

Court of Appeals of Maryland

March 17, 1943

Appeal from Circuit Court No. 2 of Baltimore City; George A. Solter Judge.

Bill by Frank J. Federico, Jr., against Frank P. Bratten and others constituting the State License Bureau, to vacate decision of the Bureau reversing action of the Board of Liquor License Commissioners of Baltimore City in renewing a liquor license over protest and to have appeal referred back to State License Bureau with directions to grant a hearing thereon. From a decree of dismissal, plaintiff appeals.

Decree reversed and cause remanded for the passage of an order in accordance with opinion.

Hilary W. Gans, of Baltimore, for appellant.

Hall Hammond, Deputy Atty. Gen. (William C. Walsh Atty. Gen., on the brief), for appellees.

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

SLOAN, Chief Judge.

The appellant, Frank J. Federico, Jr., had a license for beer wine and liquor business, at the northeast corner of Caroline and McElderry Streets in Baltimore City, where he had been conducting such a business for five years. For two years prior to that his brother, Philip Federico had run the place. A protest had been filed against the issuance of the license with the Board of Liquor License Commissioners of Baltimore City for the license year beginning May 1, 1942, and after a hearing the license was granted. The protestants took an appeal to the State License Bureau, under section 63, Art. 2B of the Code of Public General Laws, Act of 1933, Special Session, ch. 2, section 48, by which it is provided that every such appeal shall be heard de novo. The State License Bureau reversed the action of the Liquor License Commissioners. There is no provision for an appeal from the License Bureau; it is the appellate tribunal, and its action is final (West v. Musgrave, 154 Md. 40, 139 A. 551), and there can be no recourse to the courts unless the action of the administrative board officials is arbitrary, fraudulent or collusive, and the parties or either of them denied a hearing, or the consideration of essential facts. Weer v. Page, 155 Md. 86, 94, 95, 141 A. 518; Fitzgerald v. Quinn, 159 Md. 543, 151 A. 660; Fuller Co. v. Elderkin, 160 Md. 660, 154 A. 548; White v. Laird, 127 Md. 120, 96 A. 318; Maryland Pavement Co. v. Mahool, 110 Md. 397, 72 A. 833, 17 Ann.Cas. 649; Fooks v. Purnell, 101 Md. 621, 61 A. 582; McCrea v. Roberts, 89 Md. 238, 43 A. 39, 44 L.R.A. 485.

The applicant, appellant, then filed a bill in the Circuit Court of Baltimore City praying:

'a. That the action of the State License Bureau in reversing the decision of the Board of Liquor License Commissioners of Baltimore City be vacated, set aside and declared unreasonable and unlawful.

'b. That this Court declare invalid and of no effect the rule of said State License Bureau providing for a refusal of a renewal license when the applicant's business is within 300 feet of a church or school.

'c. That this Court determine for what causes under Article 2-B the State License Bureau is authorized to refuse to renew a license.

'd. That the matter of the appeal from the decision of the Board of Liquor License Commissioners of Baltimore City be referred back to the State License Bureau with direction to said bureau to grant a hearing thereon and to receive at such hearing any evidence offered by the protestants on the licensee which may be relevant to the matter before them.

'e. That a preliminary injunction may be issued.' and for general relief.

The first two, or 'a' and 'b' prayers may be considered together.

It seems that the Board of Liquor License Commissioners adopted rules for the conduct and control of saloons and restaurants under the authority of section 50, of the Act of 1933, Sp.Sess., Code Art. 2B, § 86, one of which was that no licenses should be granted for a business to be located within 200 feet of a church or school. This rule was changed by the License Bureau to 300 feet. It was admitted by the applicant at the hearing before the Bureau that his saloon was less than 300 feet from a church, from which the protest came. Then and there the hearing stopped. If this is a valid rule or regulation, there was nothing further to be done, and because of the existence of this rule or regulation, if valid, the applicant was not entitled to a renewal of his license. The Act of 1933 expressly provides that a liquor license is not a property right, but a privilege, so that he would not be deprived of a constitutional right by the refusal of the Board or the Bureau.

The adoption and enforcement of this rule is a prohibition. It might be so extended as to prohibit the granting of licenses anywhere, when the purpose and intent of the act was that they be issued to fit persons for proper places. The words 'regulate' and 'prohibit' have different meanings. In re Hauck, 70 Mich. 396 38 N.W. 269, 275, it was held that the regulation of the sale of liquor implies that the business may go on subject to established rules or methods. Miller v. Jones, 80 Ala. 89, 96; Bronson v. Oberlin, 41 Ohio St. 476, 483, 52...