Canton v. Imperial Bowling Lanes, Inc.
| Decision Date | 04 December 1968 |
| Docket Number | No. 68-136,68-136 |
| Citation | 16 Ohio St.2d 47,45 O.O.2d 327,242 N.E.2d 566 |
| Parties | , 45 O.O.2d 327 CANTON, Appellee, v. IMPERIAL BOWLING LANES, INC., Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. One may have a D permit for a particular location and yet be prohibited from selling intoxicating liquor at that location by reason of a valid local option election against such sale in the territory including that location. (Sections 4301.35 and 4301.36, Revised Code, construed.)
2. The right to object to a failure to make a necessary party a defendant to an action is waived if not specifically raised either by demurrer or by answer. (Section 2309.10 applied.)
3. A municipal corporation may bring an action under the declaratory judgment statutes (Chapter 2721, Revised Code) against a D permit holder to determine whether it is lawful for such permit holder to sell intoxicating liquor in the part of a township that is annexed to that municipal corporation.
4. The General Assembly will not be presumed to have intended to enact a law producing unreasonable or absurd consequences. It is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result. (State, ex rel. Cooper, v. Savord, 153 Ohio St. 367, 92 N.E.2d 390, followed.)
5. Annexation of township territory to a municipal corporation does not change the local option status of that territory as wet or dry. (Sections 709.10 and 4301.32, Revised Code, construed.)
This cause originated with the filing by the city of Canton, in the Common Pleas Court of Stark County, of a petition praying for a declaratory judgment as to whether it is lawful to sell intoxicating liquor in certain territory that had been a part of Plain Township, Stark County, but which was duly annexed in 1964 to the city of Canton.
At a special election, duly held in 1937 pursuant to Section 6064-33, General Code (now Section 4301.35, Revised Code), the voters of Plain Township had certain questions submitted to them, including the question as to whether 'the sale of any intoxicating liquor' should 'be permitted in Plain Township,' and a majority of those voters voted 'no' on that question. No subsequent election involving the sale of intoxicating liquor has been held in any part of Plain Township or in the part of that township annexed in 1964 to the city of Canton.
By its judgment, the Common Pleas Court held that it would be unlawful to sell intoxicating liquor in the part of Plain Township annexed in 1964 to the city of Canton.
That judgment was affirmed by the Court of Appeals.
The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to the allowance of a motion to certify the record.
Harold E. DeHoff, City Sol., for appellee.
James V. Armogida and Frank DePasquale, Canton, for appellant.
It is contended that the Common Pleas Court of Stark County had no jurisdiction of this action by reason of Section 4301.31, Revised Code, which reads, so far as pertinent:
'No court, other than the court of common pleas of Franklin County, has jurisdiction of any action against the board of liquor control, the director of liquor control, or the department of liquor control, to restrain the exercise of any power or to compel the performance of any duty under Chapters 4301 and 4303 of the Revised Code, * * *' This does not purport to be an action against either the board, the director, of the Department of Liquor Control.
However, it is contended that it is in effect such an action because the Department of Liquor Control is a necessary party since the regulation of the sale of intoxicating beverages and the issuance of permits has been completely pre-empted by the state and vested in that department, and that department has issued a D-2 permit to the defendant for a location within the part of Plain Township which was annexed to Canton in 1964 and is involved in the instant case.
This requires a consideration of the following provisions of the Revised Code.
Section 4301.35. '* * * At such election all of the following questions shall be submitted to the electors of the district:
'(A) 'Shall the sale of any intoxicating liquor be permitted in..........?' * * *'
Section 4301.36. 'If a majority of the electors voting on the questions set forth in section 4301.35 * * * in a district vote 'no' on question (A), no * * * D permit holder shall sell intoxicating liquor of any kind within the district concerned, during the period such election is in effect * * *.'
Thus, Section 4301.36, Revised Code, recognizes that one may have a D permit for a particular location and yet be prohibited from selling intoxicating liquor at that location by reason of a valid local option election against such sale in the territory including that location.
This statutory language requires the conclusion that the issuance of a D permit for a specific location will not authorize a sale of any intoxicating liquor at that location if a majority of voters have voted in a valid local option election pursuant to Section 4301.35, Revised Code, against the sale of any intoxicating liquor in territory which includes that location.
Furthermore, Section 4301.39, Revised Code, as in force prior to June 4, 1968, provided in part:
'If, as the result of such election, the use of a permit is made wholly unlawful, the department shall forthwith cancel such permit. * * *'
Although provision for a protest against a local option petition is made in Section 4301.33, Revised Code, the Department of Liquor Control is given no right to make such a protest. Neither is the department given any right, such as is given to voters, to contest a local option election. Sections 3515.08 and 3515.09, Revised Code.
It is difficult to perceive any real interest that the department would have in whether the permit, which it had issued to defendant, authorized sales of intoxicating liquor by defendant. It is obvious that the party really interested in that question is defendant.
Section 2721.12, Revised Code, does provide that 'when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration,' but it contemplates that there may be a declaration, even if some such person is not made a party, when it states that 'no declaration shall prejudice the rights of persons not parties to the proceeding.'
If we assume that, because of Section 2721.12, Revised Code, the Department of Liquor Control was a necessary party, then there would at most be what Section 2309.08, Revised Code, describes as 'a defect of parties' which was waived by defendant because not specifically raised either by demurrer or by answer. Section 2309.10, Revised Code.
It is contended further that there is no justiciable controversy in the instant case. Whether there is depends on a construction of Section 2721.03, Revised Code, which reads, so far as pertinent:
'Any person (defined in Section 2721.01, Revised Code, to mean a 'municipal corporation,' such as Canton) * * * whose rights (here, the city, as enforcer of the law, and the defendant permit holder as enforcee thereof) * * * or other legal relations are affected by a * * * statute (such as those involved in the question as to whether sales of liquor in the annexed portion of Plain Township are now lawful) * * * may have determined any question of construction * * * arising under such * * * statute * * * and obtain a declaration of rights * * * or other legal relations thereunder.' (Interpolations in brackets added for understanding and emphasis.)
In our opinion, a municipal corporation may bring an action under the declaratory judgment statutes (Chapter 2721, Revised Code)...
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