McCrea v. Roberts

• Decision Date: 16 March 1899
• Citation: 43 A. 39,89 Md. 238
• Parties: McCREA v. ROBERTS, Judge.
• Court: Maryland Court of Appeals

43 A. 39

89 Md. 238

McCREA v. ROBERTS, Judge.

Court of Appeals of Maryland

March 16, 1899

Appeal from circuit court, Carroll county; Charles B. Roberts Judge.

Petition by Walter McCrea for mandamus to Charles B. Roberts, a judge of the circuit court for Carroll county, to require respondent to grant petitioner's application for a liquor license. From an order overruling a demurrer to respondent's answer and dismissing the petition petitioner appeals. Affirmed.

Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BRISCOE, and SCHMUCKER, JJ.

Jas. A C. Bond and Francis Neal Parke, for appellant. Wm. H. Thomas, Reifsnider & Reifsnider, and Guy W. Steele, for appellee.

BRISCOE J.

The appeal in this case is from an order of the circuit court for Carroll county refusing a mandamus, and dismissing the petitioner's application therefor. A brief statement of the facts will be necessary for a clear understanding of the case: The act of 1894, c. 6, regulates the sale of liquor in carroll county. By section 4 of that act it is provided that any person desiring to obtain a license to sell liquor shall file an application in writing with the clerk of the circuit court for that county, in which he shall state his name, place where the business is to be carried on, the kind of license desired, etc. Section 5 of the act enacts "that there shall be annexed to said application a certificate signed by at least nine reputable freeholders, bona fide residents of the neighborhood in which the applicant proposes to conduct the business under the license applied for, in which each of the persons certifying shall state his residence or place of business; that he is over twenty-five years of age; how long he has known the applicant; that he believes the statements made in the application to be true; that from his knowledge of the applicant or applicants and his acquaintance with him or them, he believes the applicant to be a proper person or the applicants to be proper persons to have the privilege of selling spirituous or fermented liquors, and he accordingly recommends the issuance of the license applied for." Section 6 of the act provides "that upon the filing of such application and certificate, the applicant shall pay to the clerk with whom the same are filed, the sum of two dollars, to be applied to paying the expense of advertising as hereinafter provided for, and thereupon said clerk shall insert in two successive issues in some weekly newspaper published in said county, prior to the fifteenth day of the month preceding the month for which the license is to begin, a notice that such application has been filed, specifying the kind of license applied for, and the place where the business is to be conducted, and stating that unless cause be shown to the contrary in writing, on or before the aforesaid fifteenth day of the month preceding the month with which the license is to begin, the license applied for will be issued, provided the applicant complies with the requirements of this law requisite thereto, as hereinafter provided." Section 7 further provides "that if any person shall file with said clerk, in writing, within the time specified, any reason why the license applied for should not be granted, such clerk shall forthwith present the application and certificate and the objection to a judge of the circuit court for said county, and such judge shall proceed to hear and determine the question as to whether the license applied for shall be issued or not, after giving such notice to the applicant and objector as such judge shall deem reasonable, and shall award the cost of such hearing as such judge shall deem equitable and just." On the 25th of October, 1898, the appellant, Walter McCrea, filed an application under this law, in proper form, for a license to sell liquor in Gamber, Carroll county, with a certificate signed by 11 persons, who alleged themselves to be reputable freeholders, of whom 6 stated that they resided in Gamber, and 5 stated that they resided a mile or more therefrom. Shortly afterwards an objection was filed to the issue of the license, which was signed by 49 persons, who alleged themselves to be residents of and adjacent to the village of Gamber. The objection stated two reasons why the license should not be issued: First, because the certificate to the application is not signed by 9 reputable freeholders, bona fide residents of the neighborhood in which the appellant proposes to conduct the business under the license applied for; secondly, because the application is not certified to by persons who appear to be sufficiently acquainted with him to know his character as a fit person to sell spirituous and fermented liquors. This application and the objection were presented by the clerk of the circuit court to Hon. Charles B. Roberts, chief judge of the circuit court for Carroll county, who set the case for hearing before him. At the hearing the appellant and the objectors were represented by counsel, and witnesses were examined. An order was subsequently passed dismissing the application. The appellant thereupon filed in the circuit court for Carroll county a petition alleging, in substance, that he had complied with all the requirements of the law, and had proved the fact of such compliance at the hearing of the objection to his application, and that he was entitled to have a license issued to him. The prayer of the petition was "that a writ of mandamus might be issued, directed to Judge Roberts, a judge of the circuit court for Carroll county, commanding him to pass an order rescinding and annulling the order passed by him on the 8th day of October, 1898, dismissing the application for a license to sell spirituous and fermented liquors, and authorizing and directing that the application of McCrea ***" be granted by the clerk of the circuit court. And it is from an order overruling a demurrer to defendant's answer and dismissing the petition that this appeal has been taken.

It is the settled law of this court that one judge of a circuit has no jurisdiction to issue a writ of mandamus against the other judges of the circuit, to compel him or them to do an act which the others are authorized to do themselves. Goldsborough v. Lloyd, 86 Md. 376, 38 A. 773. But it is urged by the petitioner that since he proved at the hearing that he had complied with the statute, and did possess the requisite qualifications, there was no legal ground upon which a license could have been refused, and that the order dismissing his application was consequently not passed in the exercise of a discretion, and can be reviewed under those proceedings. It is quite true that in cases where a tribunal refuses to exercise the judgment and discretion imposed by a statute, or arbitrarily exceeds its jurisdiction, a mandamus will lie. Miles v Stevenson, 80 Md. 358, 30 A. 646. This case does not, however, fall within the rule applicable to those cases. The answer of the respondent states "that he fully discharged his duty, and exercised the judgment and discretion required to be exercised by him by the act, and, after a full hearing, a careful...