HAMMOND, J., delivered the opinion of the Court.
Certain of those who had protested before the Board of Liquor License Commissioners of Baltimore seek to appeal from the affirmance of its action in granting a transfer of a license to a new location by the Baltimore City Court, claiming that there is a variance on the same question of law between the decision of that Court and an earlier City Court decision. The Board and the holder of the license ask us to dismiss the appeal because the earlier decision was not included in the record and, in the alternative, because there is no variance between that decision and the decision appealed from.
Code, 1957, Art. 2B, Sec. 175 (f), provides that the decision of the lower court in an appeal from the Liquor Board is final, and an appeal to this Court is permitted only "* * * 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 * * *." In
In the case before us, just as in the Suttleman case, the earlier opinion is not in the record, although the appellants included it in their brief. They did not properly establish the grounds of variance on which they rely and the motion to dismiss must be granted.
Even if the earlier decision had appeared in the record, the appeals would have to be dismissed because in this case Judge Mason did not decide a point of law at variance with a decision previously rendered by Judge Manley on the same question, as appellants claim. In 1955 Judge Manley, in the case of DeAngelis v. Board of Liquor License Commissioners, Daily Record, July 26, 1955, considered the practice of the Board at that time of issuing licenses authorizing sales only to white or only to colored patrons in the licensed premises, and the validity of its rule prohibiting sales to members of the race to whom the restricted license did not extend. Judge Manley held that the rule was unconstitutional because it amounted to discrimination by the State on the basis of race. He expressed the view, however, that "* * * the effect of the decision is that the petitioner has the right to determine for himself whether he desires to sell exclusively to colored patrons, exclusively to white patrons, or to a mixed patronage of white and colored. The decision should not be construed as conferring any right on white persons to be served in taverns where the licensee limits his customers to colored trade. Nor does it confer any right on colored people to be served in taverns where the licensee limits his customers to white trade."
Appeals dismissed, with costs.