Scherr v. Braun
Scherr v. Braun
Opinion of the Court
delivered the opinion of the Court.
The Board of Liquor License Commissioners for Baltimore City granted appellants a package goods license for their food market. The Baltimore City Court, on appeal by protestants, reversed the Board because “There are far too many licenses in this area now.” The court construed the language of Code, 1951, Art. 2B, Sec. 166 (d) (3), that “The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board as above provided, shall constitute an automatic affirmance of the local board’s decision, unless the time has been extended by the court for good cause shown”, to be directory and reversed the Board more than thirty days after the record had been filed, over objection of appellants. The applicants for the license urge upon us that this Court has jurisdiction to hear and determine the case under Code, 1951, Art. 2B, Sec. 166 (e), which provides that where any Circuit Court or the Baltimore City Court “shall in any case finally decide a point of law at variance within any decision previously rendered by any other Judge of the State on the same question, an appeal may be taken from the decision rendered to the Court of Appeals of Maryland.” They contend that Judge Macgill, in the Circuit Court for Howard County, decided before Judge Byrnes acted that the court had no power to act on an appeal from the License Board after thirty days from the time the record had been filed, because the statute is mandatory. Appellants ask us to resolve this conflict between the decisions of Judge Byrnes and Judge Macgill, and to hold that the statute is mandatory.
Appellees moved to dismiss the appeal, saying that the essential prerequisites of Sec. 166 (e) are not here present. The record shows the sequence of events in 1956 to have been this: the appeal was filed in the Baltimore City Court on January
The appellees say that the letters from counsel and Judge Macgill are not properly part of the proceedings in the Howard County court and should be disregarded, leaving only the docket entries showing that the motion to dismiss was made and granted in open court. This, they say, falls short of showing that the case was decided on the ground that the automatic affirmance provision of the statute is mandatory. They argue further that even if Judge Macgill’s letter be regarded as part of the record of the proceeding in the Circuit Court for Howard County, it does not construe Sec. 166 (d) (3) to be mandatory but, rather, can be taken to mean that the court’s action was in the exercise of a discretionary power; in other words, that Judge Macgill is saying that he could have dealt with the appeal but, in the exercise of his discretion, preferred to rely on the statute.
We think neither contention is tenable. One who seeks to have this Court review the action of a lower court on appeal from a license board has been told that “The obligation rests upon the appellant to show that the trial Judge decided a point of law at variance with the decision of another Judge of the State on the same question.” He has been told also that the existence of a conflicting opinion on a question of law is essential to the right of appeal, and such a basis for appeal should be shown in the record. Suttleman v. Board of Liquor License Commissioners, 209 Md. 134, 137.
The certified copies of the docket entries from Howard County show that nothing had taken place in the case from the time of the filing of the record in October until the motion to dismiss the appeal in March. There was presented on the face of the docket entries the situation calling for the ap
Consideration of the docket entries and Judge Macgill’s letter convinces us that Judge Macgill dismissed the appeal in the Harding case on the ground that under the statute he had no jurisdiction or power to do anything else since thirty days from the filing of the record had elapsed without decision or previous extension of time. It is likewise plain to us that after this decision “previously rendered”, Judge Byrnes finally decided the point of law “at variance” with the prior holding. This being so, we think we are required to decide the meaning and effect of the statute which meant one thing to Judge Mac-gill and another to Judge Byrnes.
This Court has held that if necessary to carry out legislative intent, there may be ascribed to “mere words” or “particular words” not their literal or natural meaning but the meaning and effect that the “whole surroundings, the purposes of the enactment, the ends to be accomplished, the consequences that may result from one meaning rather than from another” indicate they should have. Upshur v. Baltimore City, 94 Md. 743, 757; Young v. Lynch, 194 Md. 68, 73. Other subsidiary tests have been applied in searching for intention. Where the directions of a statute look to the orderly and prompt conduct of business, including the business of a court, it is generally regarded as directory unless consequences for failure to act in accordance with the statute are set out. Statutory provisions fixing the time for performance of acts are held to be directory where there are no negative words restraining the doing of the act after the time specified and no penalty is imposed for delay. Crawford, Statutory Construction, Secs. 268, 269. In McCall’s Ferry Co. v. Price, 108 Md. 96, 113, the constitutional provision that the Court of Appeals shall decide cases in three months was regarded as directory, and in Snyder v. Cearfoss, 186 Md. 360, 370, the similar provision that the trial judges shall render their decision within two months of submission of the case was held not to deprive the court of jurisdiction to act after the expiration of two months. In each of those cases, however, no
Prior to the enactment of the statute in 1943, provision for review by the trial courts was granted in only one or two jurisdictions; perhaps because the privilege of selling alcoholic beverages is not a property right. There was an appeal from most local licensing boards to the State License Bureau. The then governing statute, Code, 1939, Art. 2B, Sec. 63, made it the duty of the Bureau to hear and determine all such appeals “within thirty days from the date of the receipt of the papers” from the local board. The Attorney General, in 27 Op. 59, construed this statute to mean that the Bureau had a duty to act but that “There is no provision in Section 63 which compels or necessarily tends to the conclusion that failure to act within the 30 day period nullifies a decision when made.” The next year the Legislature undertook to authorize appeals from the license boards to the courts and, in doing so, put in the new statute the very provision that the Attorney General’s opinion said would have made the earlier statute mandatory. In other words, the Legislature attached a consequence to the failure to act within the thirty day period. The consequence was that the license board was affirmed automatically by mandate of the statute if the court did not act in due time. We find this to be highly significant.
The action of the Legislature in requiring speedy decisions in appeals from license boards and insuring affirmance of the board if its mandate was not heeded, is consistent with its very evident desire to limit and circumscribe the right of appeal. As is noted in Brashears v. Lindenbaum, 189 Md. 619, 626, the statute gives very clear indication of the Legislature’s intention “to restrict the right of appeal at every stage.” The duty of deciding the propriety of granting or refusing a license
Despite the fact that the right to a liquor license is not a property right, if we assume without deciding that a court would have the inherent right to deal with a license board’s action if arbitrary, capricious or illegal, there is no doubt that the Legislature can, as it did here, regulate the manner and time of taking and concluding an appeal and make the remedy and its procedures exclusive, particularly where the court’s power, although limited, extends to correction of errors of law, and so necessarily includes power to review unreasonable or illegal action at the board level. Robertson v. Board of Appeals, 210 Md. 190; Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467; Albert v. Public Service Commission, 209 Md. 27.
The consequences that result from the interpretation of the statute as mandatory give weight to the validity of that reading. For good cause shown, any judge of the court to which the appeal has been taken may extend the time for the determination of the case. In this way, the court has full control of
There is no doubt that statutes relating to judicial action, although often held to be directory, are in proper cases held to be mandatory. Crawford, work cited, Sec. 267, p. 533, puts it in this wise: “Similarly, if the court’s jurisdiction is dependent upon the existence of certain facts or conditions, their existence is a condition precedent to the jurisdiction of the tribunal and cannot be dispensed with; for the court clearly cannot dispense with what the legislature has made the foundation of its jurisdiction or right to act.” The author continues in the succeeding section: “But if a statute creates a new remedy or right not known to the common law and prescribes a certain mode for its enforcement, it must be given a mandatory construction.” In International Brotherhood, etc. v. Shapiro (Conn.), 82 A. 2d 345, the Court held directory a statute similar to the old Maryland statute as to the duty of the State License Bureau, but suggested that the decision would be otherwise as to another statute of the state that made an arbitration award of no legal significance if not passed within sixty days, since in the latter statute the consequences of failure to act and a penalty were prescribed. In Whitley
We think the restriction on the court’s right to act after thirty days is not modal but is so interwoven with the special authority granted the court as to be a part of it, a limitation on its powers. We read the statute as if it said in terms to the Courts: “You have thirty days to decide the appeal — or as'much longer as you have, within the thirty days, extended the time. If you fail to act within the stated time, the authority given in the first instance to decide or act in the case is automatically withdrawn and you have no further power whatever in the matter.” So reading the statute we find the decision of the appeal was beyond the power of the Baltimore City court and its order is reversed. The result is the affirmance of the Board.
Order reversed, with costs.
Concurring Opinion
concurred.
I agree that the appeal in this case properly raises the question whether the provision of the Statute, Code (1951), Art. 2B, sec. 166 (d) (3), is directory or mandatory, and I also agree that it is mandatory insofar as it calls for an “automatic affirmance * * * unless the time has been extended by the court for good cause shown.” I do not agree that the court has no further jurisdiction in the matter after the judgment is entered.
Rule 1, of the Rules of Practice and Procedure, under VI,
The difficulty in the instant case is that the record was received in the trial court on January 27, and since there was no seasonable extension of time the judgment was ripe for entry on February 26. The appellants filed no motion to strike within thirty days from that date, or indeed at any time, and the motion for “automatic affirmance” filed by the appellants on March 22 can hardly be considered a motion to
Judge Prescott authorizes me to say that he agrees with the views here expressed.
Concurring Opinion
delivered the following concurring opinion, in which
Reference
- Full Case Name
- SCHERR Et Al. v. BRAUN Et Al.
- Cited By
- 40 cases
- Status
- Published