Diltz v. Crouch

• Court: Ohio Supreme Court
• Writing for the Court: BELL; WEYGANDT; HURD, J., of the Eighth Appellate District, sitting by designation in the place and stead of HERBERT
• Citation: Diltz v. Crouch, 173 Ohio St. 367, 182 N.E.2d 315 (Ohio 1962)
• Decision Date: 09 May 1962
• Docket Number: 37288,37283,Nos. 37282,37289,s. 37282
• Parties: , 19 O.O.2d 312 DILTZ, Appellee, v. CROUCH, Director of Liquor Control, Appellant. GAY et al., d.b.a. Johnny's, Appellees, v. CROUCH, Director of Liquor Control, Appellant. MILLER et al., Appellees, v. CROUCH, Director of Liquor Control, Appellant. SANDERS, d.b.a. Peacock Bar, Appellee, v. CROUCH, Director of Liquor Control, Appellant.

Page 367

173 Ohio St. 367

182 N.E.2d 315, 19 O.O.2d 312

DILTZ, Appellee, v. CROUCH, Director of Liquor Control, Appellant.

GAY et al., d.b.a. Johnny's, Appellees, v. CROUCH, Director of Liquor Control, Appellant.

MILLER et al., Appellees, v. CROUCH, Director of Liquor Control, Appellant.

SANDERS, d.b.a. Peacock Bar, Appellee, v. CROUCH, Director of Liquor Control, Appellant.

Nos. 37282, 37283, 37288, 37289.

Supreme Court of Ohio.

May 9, 1962.

Syllabus by the Court

The Board of Liquor Control has control over its orders until the actual institution of an appeal therefrom or the expiration of the time for an appeal.

With the exception that in cases Nos. 37288 and 37289 the injunctions which are the subject of these appeasl were issued after the defendant was found to be in default for answer or demurrer, the controlling facts are identical in all four cases. Since the same rule of law applies to each of the cases, the cases are considered together, and the plaintiffs are designated in the plural.

Plaintiffs were holders of permits issued under the Liquor Control Act. Pursuant to citations and hearings thereon, the permits of the plaintiffs were revoked by the Board of Liquor Control. An appeal was taken from each order and each was ultimately affirmed by the Court of Common Pleas or the Court of Appeals or both.

Thereafter, upon applications of the plaintiffs, the orders of revocation were modified by the Board of Liquor Control and suspensions for a certain number of days substituted for the orders of revocation. Defendant, the Director of Liquor Control, nevertheless proceeded to seize or threaten to seize the permits under the original orders of the board.

Plaintiffs then instituted these actions to enjoin the defendant from so acting or to require him by mandatory injunctions to return the permits already seized. Permanent injunctions were ultimately allowed by the Court of Common Pleas and the judgment in each case was affirmed by the Court of Appeals. $The causes are before this court upon the allowance of motions to certify the records.

Mark McElroy, Atty. Gen., and Michael Kouskouris, Columbus, for appellant.

Edwin M. Tuttle, Columbus, for appellees in cases Nos. 37282 and 37283.

Butler, Addison & Smith, Columbus, for appellees in case No. 37288.

Abraham Gertner, Columbus, for appellee in case No. 37289.

BELL, Judge.

The single question presented in these appeals goes to the authority of the Board of Liquor Control to modify an order of revocation after an appeal has been taken from that order and the order affirmed.

It may be welt at the outset to dispose of the case of Hotel Hollenden, Inc. v. Crouch, Dir., 171 Ohio St. 528, 172 N.E.2d 612, by pointing out its inapplicability to this situation. In that case, the court was concerned with whether the Director of Liquor Control has the authority to modify an order of the board and effectuate suspensions of certificates which the board could have suspended but did not. The fact that the director may not do so is in no way dispositive of the question of whether the board itself may modify its own order after an appeal therefrom is taken to the courts.

The Board of Liquor Control is a creature of statute, and, if it has authority to do that which plaintiffs assert it may do, that authority must be found in the statutes creating it.

Chapter 4301, Revised Code, reposes wide powers in the board, particularly in regard to the adoption and promulgation of rules and regulations. Pursuant to that power, the board adopted regulation No. 65 pertaining to the hearing procedure when a permit holder is cited to appear before the board to show cause why his permit should not be revoked, suspended or cancelled. Section IX of that regulation provides for an application for rehearing upon written application therefor within 15 days after a decision by the board, for certain specified causes relating to mistake or irregularity, fraud, unavoidable casualty which prevented an appeal, false testimony and newly discovered evidence.

In so limiting the grounds for rehearing, the obvious intention of the board was to make its orders final except in those enumerated cases where the denial of a rehearing would amount to a denial of justice. If there is not some point at which the power to modify ends and an order becomes final, it takes little imagination to conjure up the chaos that may result from pressures applied to...