Close v. Southern Maryland Agricultural Ass'n

Boyd, C. J., delivered the opinion of the Court. 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 book-making upon the result of running races of horses (under the pari-mlutual system of selling pools) on its grounds for thirteen (13) days, that is-, for the period from April 1st, 1919, to April 15th, 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 14th Election District of Pi’inee 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 ISth day of March, 1919, provided notification ⁶³¹ be given of the filing of said petition by publication of the order as therein directed.

On March 18th the appellants filed a protest against the granting of any license permitting hotting', pool-selling and book-malting! 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, etc. J udge Beall noted bis dissent- An order for appeal was filed the day tbe 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 ifiake 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 2nd, and received by the clerk of this Court on April 3rd.

On the day it wasi 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. ⁶³² A motion to dismiss the appeal has since heen made on the ground that it is now merely a moot question.

Under the circumstances we can ha,ve 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 he 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 fifteen 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 tire question undetermined, if there he 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 E'all of 1917, the Spring of 1918 and again in the Eall 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 heen urged in those cases., if appeals had heen 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 Conrt reviewed, which, if they axe otherwise entitled to appeal, ought not to he denied them] on the theory that it becomes a moot question after the races are over. ⁶³³ There would seem to he 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 he 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 ; Armrstrong v. Hagerstown, 32 Md. 54 ; Travers v. Dean, 98 Md. 72 ; U. S. Express Co. v. Hurlock, 120 Md. 107 , and cases referred to in them.

On the general question of the right of appeal see also Hendrick v. State, 115 Md. 552 and Stephens v. Crisfield, 122 Md. 190 , and in Beasley v. Ridout, 94 Md. 641 , 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 ⁶³⁴ 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 sigped 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 he governed by' anything else,' whatever our individual views may he as to betting on horse races, or the wisdom of such legislation as is before us. - In Ag.

Soc. of Mont. Co. v. State, 130 Md. 414 , Judge Constable reviewed the legislation in this State in reference to gaming on races-, and hence we need not doi so again. In that case we did not deem it necessary to decide whether the present statute imposed a judicial,- or a non-judicial 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 imtmaterial to decide- that qxiestion. But it is now before us in a way which requires us- to determine it.

We can appreciate the feeling that all judges have when called upon by .statute to do some act which is alleged to be non-judioia, or when -there is a question as to the right to perform the duties imposed on them by the statute. They do not want to disregard the provisions of a statute, if they can constitutionally perform the duties, and they naturally hesitate about declining to act until the question is definitely settled. They, therefore, sometimes do act- and, it may be, feel bound to act until this Court passes on the validity vel non of the statute. When then such a question can properly he determined by us, it is not only our right but generally our duty to do so, and it is only just to the judges who have been, or may be called upon to act under this statute to pass on its validity. ⁶³⁵ The present law was passed in 1898, and now embraces sections. 217 to 221 of Article 27, in 3rd Vol. of Code, to which we will refer.

By section 217 it is. provided, that it shall not be lawful for any person, association or corporation “to bet, wage, or gamble in any. manner, or by any means., or to make or sell a book or pool on the result of any trotting, pacing or running race of horses, or other beasts, or race, contest or contingency of any kind,” etc.—concluding by imposring a fine or imprisonment, or both, in tbe discretion of the Court if convicted. But by section 218 it is provided that “nothing in the next preceding section shall render it unlawful in any county of this State, other than Baltimore City, for any person or persons to make a pool or a book, or to bet within the ground of any agricultural association, race course, or driving park, upon the result of any trotting, pacing or running race of horses which shall be held within tbe same grounds., race course, or driving park upon which said person shall so make a pool or book, or shall so bet. upon the same day on which said race shall be held; provided, the grounds of such agricultural association, race course or driving park he licensed in the manner set forth in the next succeeding section by the Circuit Court for the county within which such grounds or track may be located.” Section 219 provides that any person applying for a license as required by section 218 shall file “with the Circuit Court * * * p-g petitioj! f0,r gxxcp a license, and before granting the said license, the said Court shall cause notification of said petition to be published,” etc. Section 220 states what the petition shall contain,” and there shall be annexed to this petition a certificate signed by at least twenty-five respectable qualified voters of tbe election district of tbe county in which such grounds are located, praying the Court to grant the said license.” Section 221 prescribes what shall be stated in tbe license, “and the said Court, shall not grant in the Aggregate license for more than thirty days in any year, nor more than fifteen days in any one month in any county in ⁶³⁶ this State,” etc. It then provides that there shall he paid to the clerk of the Oourt granting the same, the sum of five dollars for each and every day for which said license shall have been granted, etc. The important question, therefore, is whether the statute imposses such non-judicial duties on the courts as to prohibit them from performing them. The case of McCrea v. Roberts, 89 Md. 238 ," is very much relied on by the appellee. That case arose under the Act of 1894, Ch. 6, regelating the sale and granting of licenses for the sale of spirituous and fermented liquors in Carroll County.

The applicant for a license was required to file his application with the clerk of the Circuit Court, setting out various things specified, and annexed to the-application there was required to be a certificate signed by at least nine reputable freeholders, bona fide residents of the neighborhood, certifying to certain facts and recommending the issuing of the license. The clerk was required to give notice in a newspaper that the application had been made, and stating that unless cause to the contrary, in waiting, was shown on or before a day named, the license applied for would be issued, provided the applicant complied with the requirements of the law. It was then provided that if anyone filed with the clerk, in writing, and within the time specified, any reason why the license should not be granted, the clerk should forthwith present the application and certificate and the objection to a judge of the Circuit Court of the county,' and that such judge should proceed to hear and determine the question as to whether the license applied for should be issued or not, after giving such notice to the applicant and the objector as the judge should deem reasonable, and should award the costs of such hearing as he should deem equitable and just. The statute then provided that if no cause be shown to the contrary, or if cause be shown and the judge should direct in writing that the license be issued, the clerk should issue the license upon receiving the fee required.

McOrea filed an application for a license, and ⁶³⁷ an objection was filed. Tbe application and objection were presented by the clerk to tbe Hon. Charles, B. Roberts, Chief Judge of the Circuit Court for Carroll County, who, set tbe case for bearing. At the bearing both sides, were represented by counsel and witnesses, were examined—resulting in an order being passed by the Court dismissing tbe application for a license.

Tbe applicant then applied for a writ of mandamus against Judge Roberts, commanding him to pass an order rescinding and annulling the former order and directing that the application of MeCrea be granted by the clerk. From an order overruling a demurrer to tbe defendant’s answer and dismissing the petition, the appeal was taken. Judge, Briscoe delivered the opinion of the Court, and, after citing a number of authorities, and pointing out what Judge Roberts was required to do; held that the Act was not unconstitutional, as requiring the performance by a judge of a duty not, judicial in its, nature, but that the order was, passed in the performance of a judicial function and in the exercise of a sound judicial discretion. But a distinction