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Pearce v. Board of Liquor License Commissioners of

Decided: May 8, 1962.

PEARCE ET AL.
v.
BOARD OF LIQUOR LICENSE COMMISSIONERS OF BALTIMORE COUNTY ET AL.



Appeal from the Circuit Court for Baltimore County; Lindsay, J.

Brune, C. J., and Henderson, Horney, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.

Sybert

This appeal questions the propriety of an order of the Circuit Court for Baltimore County which dismissed an appeal from a decision of the Board of Liquor License Commissioners of that county on the ground that the appeal had not been determined by the Circuit Court within thirty days after the record was filed, as purportedly required by statute.

Harry R. Becker, an appellee in this case (along with the Liquor Board), applied for and was granted a Class B (on sale) beer, wine and liquor license on March 8, 1961, after a hearing before the Board at which certain residents of the neighborhood (appellants here) had voiced their opposition. One of the unsuccessful contentions of the protestants was that Becker had not provided on his behalf the signatures of ten persons qualified as registered voters and owners of real estate located within one mile of the premises as required by Code (1957), Art. 2B, §§ 56 and 57. A map of the properties in the area had been introduced at the hearing to support this contention.

On April 7, 1961, the appellants filed an appeal in the Circuit Court from the decision of the Board and on April 26 the Board filed an answer. A transcript of the testimony before the Board and certain exhibits were filed in the Circuit Court by the secretary of the Board on May 17, 1961. When counsel for appellants noted that the above-mentioned map was not included among the exhibits he notified the secretary of the Board. Her actions to rectify this situation will be referred to hereinafter.

On June 8, 1961, the applicant for the liquor license, Becker, filed a petition to intervene in the appeal to the Circuit Court, which was granted.

Appellants filed a motion on June 20, 1961, for extension of time for the hearing of the appeal. On the same day a motion was filed by Becker to dismiss the appeal on the ground that it had not been determined by the court within thirty days from the time of transmittal of the record of the case to the court from the Board, nor had the time been extended for good cause shown, such failure allegedly constituting an automatic affirmance of the Board's decision under § 175 (e) (3), Art. 2B, Code (1957), which reads: "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." After a hearing on June 22, 1961, Judge Lindsay dismissed appellants' motion for an extension of time for the hearing of the appeal and instead granted Becker's motion to dismiss the appeal for the reason stated in the motion, basing the decision in part on his opinion that a failure to include the map exhibit in the record sent by the Board would not mount up to a failure to include all "pertinent papers" as required by § 175 (c) of Art. 2B. A motion to strike the pleadings of the intervenor was overruled and a final order was signed on June 23, 1961, affirming the action of the Board in granting the license. On July 21, 1961 appellants noted an appeal from that order to this Court.

The jurisdiction of this Court to hear the appeal is challenged by appellees on the ground that the decision of the trial court is not at variance upon a point of law with any previous nisi prius decision, as required by § 175 (f), Art. 2B, Code (1957), in order for an appeal here to lie. It is settled that in the absence of this condition the decision of a lower court in an appeal from a liquor board is final. Zacierka v. Burns, 224 Md. 64, 166 A.2d 736 (1961). However, appellants have included in the record a certified copy of the docket entries in the case of Renz et al. v. Board of Liquor License Commissioners of Baltimore County, Misc. Docket 6, Folio 204, of the Circuit Court for Baltimore County, and a copy of a letter from Judge Raine explaining his decision in that case. Their inclusion in the record is sufficient to permit us to consider

the prior opinion in regard to its possible variance with the decision in the instant case. Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957).

The docket entries in the Renz case show that after the transcript of proceedings before the Liquor Board in that case was filed in the Circuit Court on December 18, 1959, no further action was taken until more than thirty days had elapsed when, on February 4, 1960, a petition and order for extending the time for hearing was filed. On February 18, 1960, a motion to dismiss the appeal was entered in open court, but was overruled by Judge Raine on the ground that the entire record had not actually been filed until the day of the hearing on February 18, 1960, and therefore the thirty day period had not commenced to run until that time. In the instant case, Judge Lindsay ruled that it was only necessary that all pertinent papers be filed, and not the entire record, in order to constitute filing of the ...


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