McCrea v. Roberts

44 L.R.A. 485, 43 A. 39, 89 Md. 238, 1899 Md. LEXIS 28

• Court: Court of Appeals of Maryland
• Decided: March 16, 1899
• Status: Published

Opinion

Briscoe, ].,

delivered the opinion of the Court.

The appeal in this case is from an order of the Circuit Court for Carroll County refusing a mandamus and dismissing the petitioner’s application therefor. A brief statement of the facts will be necessary for a clear understanding of the case.

The Act of 1894, ch. 6, regulates the sale of liquor in Carroll County. By section 4 of that Act, it is provided that any person desiring to obtain a license to sell liquor shall file an application in writing with the Clerk of the Circuit Court for that county, in which he shall state his name, place where the business is to be carried on, the kind of license desired, &c., &c. Section 5 of the Act enacts : “That there shall be annexed to said application a certificate signed by at least nine reputable freeholders, bona fide residents of the neighborhood in which the applicant proposes to conduct the business under the license applied for, in which each of the persons certifying shall state his residence or place of business ; that he is over twenty-five years of age; how long he has known the applicant; that he believes the statements made in the application to be true; that from his knowledge of the applicant or applicants and his acquaintance with him or them, he believes the applicant to be a proper person or the applicants to be proper persons to have the privilege of selling spirituous or fermented liquors, and he accordingly recommends the issuance of the license applied for.”

Section 6 of the Act provides : “That upon the filing of such application and certificate, the applicant shall pay to the Clerk with whom the same are filed, the sum of two dollars, to be applied to paying the expense of advertising, as hereinafter provided for, and thereupon said Clerk shall insert in two successive issues in some weekly newspaper published in said county, prior to the fifteenth day of the month, preceding the month for which the license is to begin, a notice that such application has been filed, specifying the kind of license applied for, and the place where the business is to be conducted, and stating that unless cause be shown to the contrary in writing, on or before the aforesaid fifteenth day of the month preceding the month with which the license is to begin, the license applied for will be issued, provided the applicant complies with the requirements of this law requisite thereto, as hereinafter provided.”

Section 7 further provides : “ That if any person shall file with said Clerk, in writing, within the time specified, any reason why the license applied for should not be granted, such Clerk shall forthwith present the application and certificate and the objection to a Judge of the Circuit Court for said county, and such Judge shall proceed to hear and determine the question as to whether the license applied for shall be issued or not, after giving such notice to the applicant and objector, as such Judge shall deem reasonable, and shall award the cost of such hearing, as such Judge shall deem equitable and just.”

On the 25th of October, 1898, the appellant, Walter McCrea, filed an application under this law, in proper form, for a license to sell liquor in Gamber, Carroll County, with a certificate signed by eleven persons, who alleged themselves to be reputable freeholders, of whom six stated that they resided in Gamber and five stated that they resided a mile or moi'e therefrom.

Shortly afterwards an objection was filed to the issue of the license, which was signed by forty-nine persons, who alleged themselves to be residents of and adjacent to the village of Gamber. The objection stated two reasons why the license should not be issued : First. Because the certificate to the application is not signed by nine reputable freeholders, bona fide residents of the neighborhood in which the appellant proposes to conduct the business under the license applied for. Secondly. Because the application is not certified to by persons who appear to be sufficiently acquainted with him to know his character as a fit person to sell spirituous and fermented liquors.

This application and the objection were presented by the Clerk of the Circuit Court to Hon. Charles B. Roberts, Chief Judge of the Circuit Court for Carroll County, who set the case for hearing before him. At the hearing, the appellant and the objectors were represented by counsel and witnesses were examined. An order was subsequently passed dismissing the application. The appellant thereupon filed in the Circuit Court for Carroll County a petition alleging in substance that he had complied with all the requirements of the law and had proved the fact of such compliance at the hearing of the objection to his application and that he was entitled to have a license issued to him. The prayer of the petition was, " that a writ of mandamus might be issued directed to Judge Roberts, a Judge of the Circuit Court for Carroll County, commanding him to pass an order rescinding and annulling the order passed by him on the 8th day of October, 1898, dismissing the application for a license to sell spirituous and fermented liquors and authorizing and directing that the application of McCrea,” * * * be granted by the Clerk of the Circuit Court. And it is from an order overruling a demurrer to defendant’s answer and dismissing the petition that this appeal has been taken.

It is the settled law of this Court, that one Judge of a Circuit has no jurisdiction to issue a writ of mandamus against the other Judges of the Circuit, to compel him or them to do an act which the others are authorized to do themselves. Goldsborough v. Lloyd, 86 Md. 376. But it is urged by the petitioner that since he proved at the hearing that he had complied with the statute and did possess the requisite qualifications, there was no legal ground upon which a license could have been refused, and that the order dismissing his application was consequently not passed in the exercise of a discretion and can be reversed under those proceedings.

It is quite true that in cases where a tribunal refuses to exercise the judgment and discretion imposed by a statute, or arbitrarily exceeds its jurisdiction, a mandamus will lie- Miles et al. v. Stevenson, 80 Md. 358. This case does not, however, fall within the rule applicable to those cases. The answer of the respondent states, “ that he fully discharged his duty and exercised the judgment and discretion required to be exercised by him by the Act, and after a full hearing, a careful consideration of the law and evidence, he dismissed the petition.” And the demurrer to the answer admits these facts.

In the recent case of Wailes v. Smith, Comptroller, 76 Md. 469, this Court said, where the duty is such as necessarily requires the examination of evidence and the decision of questions of law' and fact, such a duty is not ministerial, and not being ministerial, the decision of a public officer to whom the discharge of such a duty has been confided cannot be reviewed or reversed in a mandamus proceeding. In Ex Parte Burtis, 103 U. S. 238, the Supreme Court thus states the rule : “ A writ of mandamus may be used to compel an inferior tribunal to act on a matter within its jurisdiction, but not to control its discretion while acting, or to reverse its decision when made. Both of these rules are elementary and are fatal to this application. The District Judge took jurisdiction of the matter as it was his duty to do, heard the parties and decided adversely to the claim of the petitioner. In this he may have done wrong, and the reasons he has assigned may not be such as will bear the test of judicial criticism; but we cannot, by mandamus, compel him to undo what he has thus done in the exercise of his legitimate jurisdiction.”

We come, then, to the main contention in the case, and that is, the validity of the Act of 1894, ch. 6.

It is urged by the appellant that this Act is unconstitutional, because the issuing of licenses to sell liquor is a purely executive or administrative function, and to impose this duty upon a Judge is to require him to perform a nonjudicial' duty, contrary to the constitutional provision that requires the legislative, executive and judicial powers shall be kept separate and distinct.

In the Constitution of 1776, the Bill of Rights, section 6, declared that the legislative, executive and judicial powers of the Government ought to be forever separate and distinct from each other. Art. 8 of our present Bill of Rights adds to this, that “ No person exercising the functions of one of said departments shall assume or discharge the duties of any other,” and Art. 33 further provides, that “No Judge shall hold any other office, civil or military or political trust or employment of any kind whatsoever under the Constitution or laws of this State or the United States or any of them.”

These provisions relating to the division of governmental powers were considered by this Court, in some of the earliest cases, and we will repeat here what was then said. In Crane v. Meginnis, 1 G. & J. 476, it is said : ‘ ‘ This political maxim made its appearance in some form in all the State Constitutions formed about the time of the War of the Revolution. * * * In whatever terms they have adopted it, in none of these Constitutions are the several departments kept wholly separate and unmixed. In some of them, as in the Constitution of this State, the Executive is appointed by the Legislature and the Judiciary by the Executive, and in others the powers of the several departments are still more blended and mixed together.”

In State vs. Chase, 5 H. & J., 298, it was further said; “New judicial duties may often be unnecessarily imposed and services not of a judicial nature may be sometimes required. In the latter case a Judge is under no legal obligation to perform them.” But in Wright v. Wright, Lessee, 2 Md. 452, the Court uses this language: “The evident purpose of the declaration last quoted is to parcel out and separate the powers of government and to confide particular classes of them to particular branches of the supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the Legislature, and such as are executive in their nature to the Executive.”

In the case now before us, we think, it is clear that the duty imposed upon the Judge of the Circuit Court by section 7, of the Act of 1894, is judicial or “judicial in its nature and character” and that the objection urged against the Act upon this constitutional ground is without force. The statute prescribes that a license to sell liquor shall be issued only upon certain conditions. When an objection is filed to an application, the Clerk is required to submit the whole matter to a Judge of the Court. It then becomes ■necessary for him to determine whether the prescribed conditions have been fulfilled or not. This question may be one of fact or of law or a mixed question of fact and of law. In deciding it the Judge hears the evidence and is bound to make his decision according to the Jaw and the evidence. The statute requires that the applicant for a license shall file a “ certificate signed by at least nine reputable freeholders, bona fide residents of the neighborhood in which the applicant proposes to conduct the business.” One of the objections filed to the appellant’s application denied that the certificate thereto annexed was signed by persons possessing the qualifications. It was then necessary to determine whether the signers of the certificate were freeholders or not; whether they were reputable or otherwise; whether they were residents of the neighborhood and what was to be considered the neighborhood. It is manifest that these are questions of fact and law upon which the Judge was required to exercise his judgment after hearing the .evidence. In Devin v. Belt, 70 Md. 352, where the law there under consideration provided for the issue of a liquor license by a Clerk of Court upon the applicant’s being recommended by five respectable freeholders, it was held that it was within the exclusive discretion of the Clerk to determine whether the parties making the recommendation rvere respectable or not.

It must have been by hearing the testimony of witnesses as to whether the facts, which are made by statute a prerequisite to the issue of the license existed, or not; and then by the construction of the statute and its application to the facts of the case, that the Judge reached the decision that the appellant was not entitled to a license. Such a proceeding is within the rule of judicial power as laid down by Judge Cooley in his work on Constitutional Limitations, 109, where it is said that to adjudicate upon and protect the rights and interest of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department. Ex parte Thompson, 52 Ala. 107; Hopson’s Appeal, 65 Conn. 146.

And in Fong Yue Ting v. United States, 149 U. S. 728, which related to the Act of Congress providing for the deportation of persons of Chinese descent, unlawfully within this country, where the Act provided that a Chinaman might be taken by a collector or marshal before a United States Judge for the purpose of determining whether he was entitled to remain in this country, the Coui't said: “When in the form prescribed by law, the executive officer acting in behalf of the United States, brings the Chinese laborer before the Judge in order that he may be heard, or the facts upon which depends his right to remain in this country be decided, a ease is duly submitted to the judicial power; for here are all the elements of a civil case — a complainant, defendant, and a Judge' — actor, reus et judex, 3 Bl. Com. 25; Osborn v. Bank, 9 Wheat. 738. No formal complaint or pleadings are required and the want of them does not affect the authority of the Judge or the validity of the statute.”

But it will be observed that under the Act of 1894, the license is not issued by the Judge, but when an objection is made to an application, the duty of the Judge is merely to determine, upon a case at issue, whether the Clerk shall issue the license, or not, according as the applicant is or is not found by him to be qualified under the law. In this respect, the case at bar is clearly distinguishable from those cited in argument by the learned counsel for the appellant.

The case of United States v. Ferreira, 13 How. 52, relied upon by the appellant, is unlike this. There, an Act of Congress authorizing Judges to determine whether certain parties were entitled to be placed upon the pension lists was held to be unconstitutional, because the findings of the Judges were subject to revision by the Secretary of War, and since the findings of the Judges were not final and conclusive, it was held that the Act did not confer judicial power. This case is fully reviewed by the Supreme Court in Interstate Commerce Comm. v. Brimson, 154 U. S. 481. Nor do we find the Intoxicating Liquor cases, 25 Kansas, 752, cited by the appellant, at all in conflict with the conclusion reached by us in -this case.

(Decided March 16th, 1899).

It therefore follows, for the reasons given, that the Act of 1894, ch. 6, is valid and constitutional; that the order of Judge Roberts was passed in the performance of a judicial function and in the exercise of a sound judicial discretion. No writ of mandamus lies to control that discretion.

Order affirmed with costs.