Katz v. Department of Liquor Control of Ohio, 34858

• Decision Date: 20 March 1957
• Docket Number: No. 34858,34858
• Citation: 166 Ohio St. 229,2 O.O.2d 54,141 N.E.2d 294
• Parties: , 2 O.O.2d 54 KATZ et al., d/b/a Century Grill, Appellees, v. DEPARTMENT OF LIQUOR CONTROL OF OHIO, Appellant.
• Court: Ohio Supreme Court

Page 229

166 Ohio St. 229

141 N.E.2d 294, 2 O.O.2d 54

KATZ et al., d/b/a Century Grill, Appellees, v. DEPARTMENT OF LIQUOR CONTROL OF OHIO, Appellant.

No. 34858.

Supreme Court of Ohio.

March 20, 1957.

Syllabus by the Court.

Under the provisions of Section 119.12, Revised Code, as amended in 1953, 125 Ohio Laws 488, an administrative agency may appeal from a judgment of the Court of Common Pleas, rendered on appeal from a decision of such agency, only upon questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency, but when such appeal is perfected the reviewing court has jurisdiction to review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record

Sanford D. Katz and Max Arnovitz, doing business as Century Grill, hereinafter referred to as appellees, appealed to the Court of Common Pleas of Franklin County from an order of the Board of Liquor Control revoking their D-1, D-2, D-3 and D-3a permits. That court reversed the order of the Board of Liquor Control, finding that 'there is no evidence to show that the appellants conducted a game of chance on the permit premises; that there is insufficient evidence to show that appellants had knowledge that someone else was conducting a game of chance on the permit premises; that the order of the Board of Liquor Control is not supported by reliable, probative and substantial evidence in the entire record and is not in accordance with law.'

The Department of Liquor Control, hereinafter referred to as appellant, appealed from the judgment of the trial court to the Court of Appeals. Appellees filed a motion in the Court of Appeals to dismiss the appeal, claiming that the Court of Appeals does not have jurisdiction to hear an appeal by an administrative agency pursuant to Section 119.12, Revised Code, where the only question presented is one of fact. A majority of the Court of Appeals sustained appellees' motion, and the appeal was accordingly dismissed.

The allowance of a motion to certify the record brings the cause to this court for review.

C. William O'Neill and William Saxbe, Attys. Gen., and S. Noel Melvin, Columbus, for appellant.

Isadore Topper and Joel Krupman, Cleveland, for appellees.

HERBERT, Judge.

The decision in this case hinges entirely on the construction of the provisions of Section 119.12, Revised Code, which were amended following the decision of this court in Corn v. Board of Liquor Control, 1953, 160 Ohio St. 9, 113 N.E.2d 360. That case held that an administrative agency did not have the right to appeal to the Court of Appeals from an adverse judgment rendered by the Court of Common Pleas under Section 154-73, General Code, Section 119.12, Revised Code, as it was then in effect. The statute as so amended, effective October 21, 1953, 125 Ohio Laws, 488, contains the following language:

'* * * The * * * judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in Sections 2505.01 to 2505.45, inclusive, of the Revised Code. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record. Such appeals may be taken regardless of the fact that a proceeding was pending prior to the amendment of this section expressly authorizing such appeals, provided such appeals are perfected by the filing of notice of appeal within the time prescribed by Section 2505.07 of the Revised Code.' Appellant presents the question: 'Does an administrative agency have the right to appeal under Section 119.12, Revised Code, from an adverse decision of a lower court on the question of whether an order of the Board of Liquor Control is...