Andrews v. Board of Liquor Control

• Decision Date: 23 November 1955
• Docket Number: 34238,Nos. 34228,s. 34228
• Citation: 164 Ohio St. 275,131 N.E.2d 390,58 O.O. 51
• Court: Ohio Supreme Court
• Parties: , 58 O.O. 51 ANDREWS, Jr., d. b. a. Buffalo Grill & Hotel, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee, RUFO, d. b. a. Mickey's Cafe, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.

Page 275

164 Ohio St. 275

131 N.E.2d 390, 58 O.O. 51

ANDREWS, Jr., d. b. a. Buffalo Grill & Hotel, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee, RUFO, d. b. a. Mickey's Cafe, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.

Nos. 34228, 34238.

Supreme Court of Ohio.

Nov. 23, 1955.

Syllabus by the Court.

1. Under Section 154-73, General Code, as amended in 1951 (Section 119.12, Revised Code), in an appeal from the Board of Liquor Control to the Court of Common Pleas of Franklin County, that court must give consideration to the entire record before the Board of Liquor Control, including all evidence offered before the board, and such additional evidence as the court may admit, and must appraise all such evidence as to the credibility of witnesses, the probative character of the evidence and the weight to be given it, and, if from such a consideration it finds that the board's order is not supported by reliable, probative and substantial evidence and is not in accordance with law, the court is authorized to reverse, vacate, or modify the order of the board.

2. Where the Court of Common Pleas reverses an order of the Board of Liquor Control, such board may appeal to the Court of Appeals for Franklin County, which court may affirm or reverse the judgment of the Court of Common Pleas, in accordance with the provisions of Section 119.12, Revised Code, but in doing so must be guided by the nature and scope of the appellate jurisdiction of the Court of Common Pleas under such section.

3. It is an invariable rule that a court speaks only through its journal, and where its opinion and its journal are in conflict the latter controls and the former must be disregarded.

4. However, where it is essential in the interest of justice for a reviewing court to ascertain the grounds upon which a judgment of a lower court is founded, and the judgment entry fails to disclose such grounds, resort may be had to the opinion of the lower court to ascertain those grounds.

These two cases, while differing in their facts, present the same question of law and are, therefore, decided together.

In case No. 34228, Albert A. Andrews, Jr., d. b. a. Buffalo Grill & Hotel, appellant, will hereinafter be referred to as Andrews, in case No. 34238, Dan A. Rufo, d. b. a. Mickey's Cafe, appellant, will hereinafter be referred to as Rufo, and in both cases the Board of Liquor Control will hereinafter be referred to as the board.

In the Andrews case, a charge was made before the board that Andrews or his agents sold and furnished beer to a minor 17 years of age, in violation of the Liquor Control Act and the regulations of the Board of Liquor Control.

There was evidence before the board in support of the charge, which consisted of the testimony of the alleged minor and two companions, to the effect that the minor had purchased six bottles of beer. This charge was denied by the bartender, a brother of Andrews, and by three other persons who were on the premises that evening and who each testified that no sale was made; that the boys attempted to buy beer but the bartender refused to make the sale; and that the boys were intoxicated and staggered when they entered the premises.

It is admitted that the boys had purchased a case of beer earlier in the evening at another place, and that three of them had consumed this entire amount.

The boys had been touring the countryside in an automobile for several hours prior to entering Andrews' premises and in the course of their tour had pulled up several mailboxes.

Upon submission of the case to the board, it revoked Andrews' class D-1, class D-2 and class D-3 permits for his place of business located in Buffalo, Ohio.

Thereafter, pursuant to Section 154-73, General Code, Section 119.12, Revised Code, Andrews appealed to the Court of Common Pleas of Franklin County. That court, after hearing the appeal on the transcript of the proceedings before the board, reversed and set aside the order of revocation, upon the ground that the order was not supported by reliable, probative and substantial evidence in the whole record.

The board then appealed the case to the Court of Appeals for Franklin County, pursuant to Section 119.12, Revised Code, effective in 1953 after the decision in Corn v. Board of Liquor Control, 160 Ohio St. 9, 113 N.E.2d 360.

The Court of Appeals, 130 N.E.2d 374, reversed the judgment entered by the Court of Common Pleas and affirmed the order of revocation made by the board.

The cause is before this court upon the allowance of a motion to certify the record.

In the Rufo case, a charge was made before the board that Rufo, his agents or employees did have, keep and possess in and upon his permit premises intoxicating liquor in the original containers, which liquor had been diluted or the containers refilled or partially refilled in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.

As of the date of the charge, Section 6064-68, General Code, which was claimed to have been violated, read as follows:

'Any person who shall sell, offer for sale or possess intoxicating liquor in any original container which has been diluted, refilled or partly refilled, shall be deemed guilty of a misdemeanor * * *.'

Regulation No. 47 of the board reads as follows:

'No holder of a permit authorizing the sale by the glass, or any agent or employee thereof, shall refill any bottle formerly containing alcoholic beverages.'

After a hearing before the board, it revoked Rufo's permits.

Thereafter, pursuant to Section 154-73, General Code, Section 119.12, Revised Code, Rufo took an appeal to the Court of Common Pleas of Franklin County, which court, after hearing the appeal upon the transcript of the proceedings before the board, reversed and set aside the order of revocation, upon the ground that the order was not supported by reliable, probative and substantial evidence in the whole record, and was not in accordance with law.

The board thereupon appealed to the Court of Appeals for Franklin County, pursuant to Section 119.12, Revised Code, supra.

The Court of Appeals reversed the judgment entered by the Court of Common Pleas and affirmed the order of revocation made by the board.

The cause is before this court upon the allowance of a motion to certify the record.

Isadore Topper, Columbus, and John C. Sheppard, Cambridge, for appellant in cause No. 34228.

Isadore Topper, Columbus, and John T. Feighan, Jr., Cleveland, for appellant in cause No. 34238.

C. William O'Neill, Atty. Gen., and Kiehner Johnson, Columbus, for appellee.

STEWART, Judge.

Both the present cases involve the same legal question.

Although it is true that in the Rufo case it is argued that the provisions of Section 6064-68, General Code, are void because they are indefinite, uncertain, inadequate, unreasonable and ambiguous, we are of the opinion that their meaning is clear.

It is true that an original container can not be diluted, and the language of the statute is far from perfect grammatically, but we have no doubt as to its meaning from the language of the enactment itself. We are also of the opinion that neither scienter nor guilty knowledge is an essential element to be established in the proof of violation of the statute.

The question then presented to us is the meaning of the language of, the scope of review provided by, and the effect of Section 154-73, General Code, Section 119.12, Revised Code, as amended in 1951, with respect to an appeal before a Court of Common Pleas from an order affecting a license issued by an administrative agency such as the Board of Liquor Control.

In the case of Farrand v. State Medical Board, 151 Ohio St. 222, 85 N.E.2d 113, this court held that, under Section 154-73, General Code, a Court of Common Pleas, in reviewing an order of an administrative agency pertaining to a state license, can not substitute its judgment for that of the agency and is confined 'to determining the rights of the parties in accordance with the statutes and other law applicable.'

The principal paragraph of Section 154-73, General Code, construed by this court in the Farrand case, supra, read as follows:

'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.'

After the decision in the Farrand case, which was decided in 1949, the General Assembly, in 1951, rewrote the entire paragraph of Section 154-73, General Code, relating to appeals. The new language of the paragraph, which has not been substantially changed in Section 119.12, Revised Code, was as follows:

'The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such other additional evidence as the court may have admitted, that the order is supported by reliable,...