Suttleman v. Board of Liquor License Commissioners

Bruñe, C. J., delivered the opinion of the Court. The appellant operated a restaurant and tavern since 1942 under a Class B beer, wine and liquor license at 501 North Central Avenue in Baltimore City. It became necessary for him to move because that property was taken, or was about to be taken, under condemnation proceedings by the City for a redevelopment project. He first sought, in November, 1953, to move to the 800 block of North Gay Street and to change his license to an amusement license.

That application was denied by the Board of Liquor License Commissioners for Baltimore City (the “Liquor Board”) because it was found that the requested license was not necessary for public convenience and accommodation at that location. The appellant then sought another location, and in 1954 filed an application for the transfer of his license from the Central Avenue address to a location at Fayette Street and Carrollton Avenue, which is in a different section of the City. The Liquor Board held a hearing on December 1, 1954, at which both proponents and opponents of the transfer were heard, and petitions signed by others for or against ¹³⁶ the transfer were filed. The Morning Star Baptist Church, one of the appellees, was among the protestants.

On December -10, 1954, the Liquor Board granted the appellant’s application; and on December 20, 1954, the Morning Star Baptist Church and other protestants took an appeal to the Baltimore City Court in accordance with Code (1951), Article 2 B, Section 166, sub-sections (a), (b) and (c). On January 4, 1955, the Liquor Board duly filed a transcript of the record of the proceedings before it, and on the same day the applicant (now the appellant) was permitted to intervene as a defendant. On January 21, 1955, in accordance with sub-section (d) (1) of Section 166 of the Article cited, the case was submitted to Judge Manley, then sitting in the Baltimore City Court, without a jury. The case was held sub curia, and on April 29, 1955, the Judge filed an opinion and order reversing the ruling of the Liquor Board, and judgment was entered for the plaintiffs (appellees) for costs.

The applicant appealed to this Court under subsection (e) of the same Section of the Code. The scope of the appeal to the Baltimore City Court is limited under sub-section (d), and the scope of the appeal allowed to this Court under sub-section (e) is still more limited. Brashears v. Lindenbaum, 189 Md. 619 , 56 A. 2d 844 ; Payson Street Neighborhood Club v. Board of Liquor License Commissioners, 204 Md. 278 , 103 A. 2d 847 . Under sub-section (e) of Section 166 the decision of the Circuit Court, or of the Baltimore City Court, is declared to be “final and effective at once,” except that an appeal to this Court (but no other form of review) is permitted, “if any judge of the Circuit Court of any county, or the Baltimore City Court, shall in any case finally decide a point of law at variance with any decision previously rendered by any other Judge of the State on the same question.” This sub-section further provides that “The Court of Appeals shall only decide the question of law involved in such an appeal and shall not pass upon any question of fact.” The statutory his ¹³⁷ tory of the present provisions relating to appeals from the grant or denial of applications for liquor licenses is fully set forth in the Brashears and Payson Street Club Cases, above cited, and in Gianforte v. Board of Liquor License Commissioners, 190 Md. 492 , 58 A. 2d 902 , and we shall not repeat it here.

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. Payson Street Neighborhood Club v. Board, supra. In this case the appellant has not included in the record a copy of any other opinion or decision of another Judge on any question. Cf. the Brashears and Gianforte cases, above cited.

In the latter, copies of the other opinions, with which the opinion appealed from was said to be in conflict, were included in the record, and the question sought to be raised was treated as properly presented. In the Brashears case, a similar practice was followed, and a certified copy of the other decision was included (though this Court noted that it was done without leave of Court). The omission from the record of a copy of any allegedly conflicting decision is alone enough to call for the dismissal of the appeal. The existence of a conflicting opinion on a question of law is essential to the right of appeal, and such a basis for an appeal should be shown in the record.

See the Brashears Case, where it was held that certain other jurisdictional facts should appear from the record. The appellant has sought to meet the jurisdictional requirement of a conflicting opinion on a question of law by printing in his brief a copy of the opinion of Judge Mason in the Baltimore City Court in the case of Samuel Gilden v. Board of Liquor License Commissioners for Baltimore City, in October, 1947. Even if this opinion had been properly included in the record and was accordingly properly before us, we find no conflict on a point of law between that decision and Judge Manley’s decision in the present case. The cases are similar in that each involved a review of the Liquor Board’s decision on whether or not there was