Sheeler v. Handelman

• Decision Date: 29 January 1957
• Docket Number: No. 53,53
• Citation: 212 Md. 152,129 A.2d 78
• Parties: Mrs. Burton R. SHEELER et al. v. Mayer HANDELMAN et al.
• Court: Maryland Court of Appeals

Page 152

212 Md. 152

129 A.2d 78

Mrs. Burton R. SHEELER et al. v. Mayer HANDELMAN et al.

No. 53.

Court of Appeals of Maryland.

Jan. 29, 1957.

John D. C. Duncan, Towson, for Board Liquor License Com'rs, J. Elmer Weisheit, Jr., Towson, and John D. Alexander, Baltimore, for Mrs. Sheeler.

Walter R. Haile, Towson, (Francis T. Peach, Towson, on the brief), for County Com'rs.

W. Lee Harrison, Towson (Richard C. Murray, Towson, and Solomon Liss, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

BRUNE, Chief Judge.

This case is now before the Court on the appellees' motion to dismiss the appeals and writs of error. The proceedings are characterized by so much procedural informality and confusion as to necessitate a rather lengthy statement of the course which the controversy has taken.

The facts of the case are simple enough. The appellees filed an application with the Board of Liquor License Commissioners for Baltimore County (the 'Board') for a package goods liquor license for the sale of beer, wine and liquor at a drugstore located at the intersection of the Joppa Road and the Old Harford Road in Baltimore County. The Board held a hearing on it on August 9, 1955, at which evidence was presented on behalf of the applicants and also of some protestants, of whom the appellant, Mrs. Sheeler was one. The protestants contended that there was no need for another package goods store in that immediate vicinity. The Board took the matter under advisement, and on August 10th notified the applicants that their application was denied, but no reason for the denial was stated in the notice.

On August 15, 1955, the applicants took an appeal to the Circuit Court for Baltimore County under Code 1951, Article 2B, Section 166, seeking a reversal of the Board's decision. Pursuant to subsection (c) of Section 166, the Board transmitted to the Court on August 30th a transcript of the testimony taken at the hearing and other pertinent papers. The covering letter from the Secretary of the Board to the Clerk of the Court listed the 'opinion of the Board' as one of the enclosures. This statement was erroneous, and it appears that no opinion had actually been written and filed up to that time. The covering letter requested that notice of any hearing in court be given to counsel for Mrs. Sheeler, counsel for the applicants and counsel for the Board. The latter happened to be away on his vacation from some date prior to the date of the Secretary's letter of transmittal until September 12th. He received no notice of the hearing and learned only on his return that it had been held during his absence.

On September 6, 1955, Mrs. Sheeler filed a petition for leave to intervene in the case, and such leave was granted. The case was heard on September 7th by Judge Barrett. He had before him the record of the proceedings before the Board. The record transmitted to this Court contains docket entries showing that on September 7, 1955, the hearing was held, the action of the Board was affirmed and the court's opinion was filed. Judge Barrett's opinion, delivered orally, states that he had read the record of proceedings before the Board, that it showed the presence of other liquor stores in the vicinity and that in the face of this testimony he was of the opinion that the applicants had failed to meet the burden of showing that the action of the Board was arbitrary or capricious in denying the application. At the end of his opinion Judge Barrett said: 'It is true, there is no opinion filed with this record. As far as I know, it isn't necessary that the Board must file an opinion. I think it is well that the Board file an opinion, but yet, as I sit here in this case, I have the same record before me that the Board had in making its decision. I feel that the Board did not act arbitrarily or capriciously * * * so I sustain the ruling of the Board, finding of the Board, and dismiss the appeal, or dismiss the petition.'

There was some stipulation between the parties (at least those represented at the hearing) with regard to the absence of an opinion of the Board. The stipulation was doubtless oral and no verbatim copy of it appears in the record. The parties give somewhat different versions of it. We think that the portion of Judge Barrett's opinion which we have quoted above supports the appellees' contention that the stipulation was to the effect that no opinion had been filed and that the appeal would be heard, argued and decided on that basis. If the stipulation had gone so far as to amount to a waiver on the part of the appellees of any requirement for an opinion or an estoppel against them to insist upon one, Judge Barrett in all probability would have so stated.

On September 19, 1955, the applicants filed, apparently ex parte, a petition for rehearing in the Circuit Court for Baltimore County, in which they stressed the absence of any opinion of the Board and cited a decision of Chief Judge Contrum in another case in the same court in which he was said to have 'reversed the action of the Liquor Board, stating that in the absence of an opinion or some other indication by said Board of its findings of facts, it was impossible for the Court to sustain its action.' No copy of this opinion was filed. The petition prayed that 'the instant proceeding may be re-opened and counsel allowed and permitted to fully argue this matter.' An order in accordance with the prayer of the petition and directing the Clerk of the court to set the matter for hearing was entered by Judge Barrett on the same day. This was equivalent to granting a motion for a new trial. See Psalmist Baptist Church v. Board of Zoning Appeals, 175 Md. 7, 199 A. 815 where a petition to reopen a case was held the equivalent of a motion for a new trial.

On September 21st a petition was filed on behalf of Mrs. Sheeler which recited the filing of the applicants' petition for a rehearing and the passage of 'an appropriate Order granting same', alleged that a matter of considerable importance and novelty was involved, which would require a reasonable time to answer, and prayed that any hearing on the petition for rehearing should be stayed for fifteen days. An order to that effect was entered on the same day. Mrs. Sheeler filed her answer to the petition on September 26th. In it she asserted that the Board's opinion had been filed in these proceedings [as it was on September 22nd] and she prayed that the court should pass its order 'reaffirming its previous ruling which affirmed the decision of the Board * * *.'

Meanwhile, on September 22nd, the Board filed its answer to the applicants' petition for rehearing. In it the Board denied the need for its filing an opinion, and complained of the lack of notice of the hearing in this and other appealed cases. It also filed its opinion, which it incorporated by reference in its answer. The opinion rested the Board's denial of the license on the ground urged by the protestants and adopted by Judge Barrett in his oral opinion of September 7th--that there was no need for another package store in the neighborhood in question.

On October 7, 1955, the applicants filed a motion to strike the Board's opinion on the ground that it had not been filed within the time prescribed by Section 166(c) of Article 2B of the Code 1951. No formal action was taken on this petition, though the practical effect of the opinion and order of April 25, 1956, referred to below, was to sustain the objection.

At some time not disclosed and (presumably) before some judge not identified, the applicants made a motion for Judges of the Third Judicial Circuit of Maryland to sit in banc to hear the case. The appellants assert and the appellees do not deny that this motion was made without prior notice to the appellants, and since no such written motion is to be found in the record, it must be supposed that it was made orally. Much of the present confusion arises from questions as to the capacity in which the case was thereafter heard by three Judges of the Third Judicial Circuit, Chief Judge Gontrum and Associate Judges Day and Barrett, sitting in the Circuit Court for Baltimore County, on February 17, 1956. A docket entry of that date states that they were 'sitting in banc', and the opinion, filed on April 25, 1956, refers to the motion for the Judges of the Third Judicial Circuit of Maryland to sit in banc to hear said case.

Judges Gontrum and Day concurred in holding that the Board's failure to make findings of fact pursuant to Code 1951, Article 2B, Section 57, and to transmit them to the Circuit Court for Baltimore County within the time provided by Section 166(c) of the same Article, required a reversal of the Board's action and the granting of the license. Section 57 provides that in the absence of adverse findings an application shall be approved and a license issued, and Section 166(c) requires a transcript of the proceedings before the Board and of all pertinent papers to be transmitted to the Circuit Court within fifteen days after notice of an appeal. Judge Barrett dissented. An order was entered in accordance with the views of the majority of the three-judge court and the appeals are from that order.

On May 15, 1956, Mrs. Sheeler filed her order of appeal. On the same day the Board of County Commissioners sought and obtained leave to intervene and took an appeal. Also, on the same day, the appellants--Mrs. Sheeler, the Board and the County Commissioners--filed petitions for writs of error, upon which the Circuit Court entered orders 'that the record herein be removed and an appeal to the Petitioners be allowed as on writ of error or appeal, as the case may be, to the Court of Appeals of Maryland.'

No objection appears to have been raised by either Mrs. Sheeler or the Board until after the adverse decision of April 25, 1956, to either the reopening of the case by the order of September 19, 1955,...