Corn v. Board of Liquor Control

• Decision Date: 10 June 1953
• Docket Number: Nos. 33222,33223,s. 33222
• Parties: , 50 O.O. 479 CORN v. BOARD OF LIQUOR CONTROL et al. (two cases).
• Court: Ohio Supreme Court

Page 9

160 Ohio St. 9

113 N.E.2d 360, 50 O.O. 479

CORN v. BOARD OF LIQUOR CONTROL et al. (two cases).

Nos. 33222, 33223.

Supreme Court of Ohio.

June 10, 1953.

Isadore Topper, Columbus, for appellant.

C. William O'Neill, Atty.Gen., Robert E. Leach, Columbus, and Ralph N. Mahaffey, Ashville, for appellees.

STEWART, Judge.

Two questions are presented to us.

The first question is whether the Court of Appeals erred in overruling Corn's motions to dismiss the appeals of the board, its members, the department, and the director from the judgments of the Court of Common Pleas.

The second question is whether the Court of Appeals erred in reversing the judgments of the Court of Common Pleas on the merits of the controversies before it.

In view of the conclusion at which we have arrived, we do not reach the second question.

Corn contends that the Administrative Procedure Act, sections 154-61 to 154-74, inclusive, General Code, which governs the procedure in the present causes, does not confer a right of appeal upon the board, the department, or the director for a review of a judgment of the Court of Common Pleas reversing an order of the board, and that under such act the judgment of the Court of Common Pleas is final unless reversed upon appeal by the licensee or permitholder.

It is the general law of the land and is settled as the law of this state that, although one has an inherent and inalienable right to a fair and impartial hearing or trial with reference to any infringement of his natural, statutory, or constitutional rights, the right of appeal from the result of such trial is not an inherent or inalienable right but must be conferred by constitution or statute. City of Middletown v. City Commission of Middletown, 138 Ohio St. 596, 37 N.E.2d 609; Lindblom v. Board of Tax Appeals, 151 Ohio St. 250, 85 N.E.2d 376.

Since the Constitution of Ohio gives no right of appeal in causes such as the present ones, we must consider the pertinent parts of the Administrative Procedure Act, which are:

Section 154-62, General Code. "The following words when used in this act shall have the meanings respectively ascribed to them in this section:

" 'Agency' means and includes, except as hereinafter limited, any official, board or commission having authority to promulgate rules or make adjudications in the bureau of unemployment compensation, the state civil service commission, the department of industrial relations, the department of liquor control, the department of taxation, the industrial commission, the functions of any administrative or executive officer, department, division, bureau, board or commission of the government of the state of Ohio specifically made subject to the provisions of the administrative procedure act, and the licensing functions of any administrative or executive officer, department, division, bureau, board or commission of the government of the state of Ohio having the authority or responsibility of issuing, suspending, revoking or cancelling licenses. This act shall not apply to the public utilities commission, nor shall it apply to actions of the superintendent of banks, the superintendent of building and loan associations and the superintendent of insurance in the taking possession of, and rehabilitation or liquidation of, the business and property of banks, and building and loan associations, insurance companies, associations, reciprocal fraternal benefit societies and bond investment companies, nor to any action that may be taken by the superintendent of banks under the provisions of sections 710-19, 710-88a and 710-107a of the General Code. This act shall not apply to actions of the industrial commission under the provisions of sections 1465-37 to 1465-112, both inclusive, of the General Code, anything in this act to the contrary notwithstanding. This act shall not apply to actions of the bureau of unemployment compensation except those relating to the adoption, amendment or rescission of rules, and those relating to the insurance [issuance], suspension, revocation or cancellation of licenses.

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" 'Adjudication' means and includes the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits or legal relationships of a specified person or persons, but does not include the issuance of a license in response to an application with respect to which no question is raised nor other acts of a ministerial nature.

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" 'Person' means and includes person, firm, corporation, association or partnership.

" 'Party' means and includes the person or persons whose interests are the subject of an adjudication by an agency.

" 'Appeal" means and includes the procedure by which a person aggrieved by a finding, decision, order or adjudication of any agency, invokes the jurisdiction of a court."

Section 154-73. "Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination or denying the issuance or renewal of a license, registration of a licensee, or revoking or suspending a license, may appeal to the common pleas court of the county in which the place of business of the licensee is located or the county in which the licensee is a resident from the order of said agency, provided, however, that appeals from decisions of the board of liquor control shall be to the court of common pleas of Franklin county only. If any such party is not a resident of and has no place of business in Ohio he may appeal to the common pleas court of Franklin county.

"Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the common pleas court of Franklin county.

"Nothing in this section shall apply to appeals from the department of taxation. Appeals from that agency shall be as otherwise provided by law.

"Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of his appeal. A copy of such notice of appeal shall also be filed by appellant with the court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order as herein provided.

"The filing of a notice of appeal shall not automatically operate as a suspension of the order of an agency. However, if it appears to the court [that] an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal the court may grant a suspension and fix its terms and conditions.

"Within ten days, or within such period as may be authorized by law, after receipt of notice of appeal from an order in any case wherein a hearing is required by this act the agency shall prepare and certify to the court a complete record of the proceedings in said case. Such record shall be prepared and transcribed and the expense thereof shall be taxed as a part of the costs of the appeal. The appellant must provide security for costs satisfactory to the court of common pleas. Upon demand by any interested party the agency shall furnish at the cost of the party requesting same a copy of the stenographic report of testimony offered and evidence submitted at any hearing and copy of complete record.

"Unless otherwise provided by law, in the hearing of the appeal the court shall be confined to the record as certified to it by the agency, provided, however, unless otherwise provided by law the court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency.

"The court shall conduct a hearing on such appeal and shall give preference to all proceedings under this act over all other civil cases, irrespective of the position of any such proceedings on the calendar of the court. The hearing in the court of common pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the statutes or other law applicable to such action. At such hearing counsel may be heard on oral argument, briefs may be submitted, and evidence introduced if the court has granted a request for the presentation of additional evidence.

"Unless otherwise provided by law, the court may affirm, reverse, vacate or modify the order of the agency complained of in the appeal and its order shall be final and conclusive unless reversed, vacated or modified on appeal.

"The court shall certify its judgment to such agency or take such other action in connection therewith as may be required to give its judgment effect."

The procedure in the present causes is governed by the above sections, which were in effect prior to the amendment of section 154-73, effective August 28, 1951, 124 Ohio Laws 262.

In construing those sections, it is pertinent to refer to the case of State, ex rel. Zugravu v. O'Brien, 130 Ohio St. 23, 196 N.E. 664, which was decided at a time when, under the statutes, the action of the Board of Liquor Control was final and there was no right of appeal therefrom to a court. The action was one in mandamus seeking to compel the Board of Liquor Control to reverse a revocation of certain liquor permits and to require the reinstating thereof. It...