Fortner v. Thomas

• Decision Date: 08 April 1970
• Docket Number: No. 69-86,69-86
• Parties: , 51 O.O.2d 35 FORTNER, Appellee, v. THOMAS et al., Liquor Control Commission, Appellants.
• Court: Ohio Supreme Court

Page 13

22 Ohio St.2d 13

257 N.E.2d 371, 51 O.O.2d 35

FORTNER, Appellee, v. THOMAS et al., Liquor Control Commission, Appellants.

No. 69-86.

Supreme Court of Ohio.

April 8, 1970.

Syllabus by the Court

1. The review of proceedings of administrative officers and agencies authorized by Section 4(B), Article IV of the Ohio Constitution, contemplates quasi-judicial proceedings only.

2. Courts will not aid in making or revising rules of administrative officers, boards or commissions, being confined to deciding whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case. (Zangerle v. Evatt, 139 Ohio St. 563, 41 N.E.2d 369, approved and followed.)

3. R.C. § 119.11 may not be employed to obtain judicial review of quasi-legislative proceedings of administrative officers and agencies.

On April 12, 1966, appellants, members of the Ohio Liquor Control Commission, amended one of the Commission's regulations. Appellee is the holder of permits issued by the Department of Liquor Control. Pursuant to R.C. § 119.11, and although he had never been directly subjected to the application of the amended regulation, appellee lodged an appeal from appellants' action in the Court of Common Pleas of Franklin County. That court reviewed the procedure used by appellants in adopting the regulation, and the lawfulness and reasonableness of the regulation, and held in favor of the appellant. Appellee then appealed to the Court of Appeals for Franklin County, which court substantially modified the lower court's ruling.

Appellants' motion to certify the record to this court was allowed and the cause is now before us for review.

Topper & Alloway, Isadore Topper and James F. Deleone, Columbus, for appellee.

Paul W. Brown, Atty. Gen., and James E. Rattan, Columbus, for appellants.

HERBERT, Justice.

It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect. It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. The extension of this principle includes enactments of the General Assembly (Pifeifer v. Graves (1913), 88 Ohio St. 473, 104 N.E. 529; Foster v. Com'rs. of Wood County (1859), 9 Ohio St. 540, 544); questions which are moot (Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21); and administrative or quasi-legislative proceedings of administrative officers and agencies (Zangerle v. Evatt (1942), 139 Ohio St. 563, 41 N.E.2d 369; Craun Transportation, Inc., v. Pub. Util. Comm. (1954), 162 Ohio St. 9, 120 N.E.2d 436; Morgan County Budget Comm. v. Board of Tax Appeals (1963), 175 Ohio St. 225, 193 N.E.2d 145; see concurring opinion of Schneider, J., in Tuber v. Perkins (1966), 6 Ohio St.2d 155, 158, 216 N.E.2d 877, and compare Poe v Ullman (1961), 367 U.S. 497, 81 S.Ct. 1752 6 L.Ed.2d 989). The cases involving administrative proceedings were decided both before and after adoption of the Administrative Procedure Act and represent a consistent line of authority relative to judicial review of quasi-legislative proceedings of administrative officers and agencies.

At the time of those decisions, Section 2 of Article IV of the Ohio Constitution conferred upon this court 'such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law.' At the same time, Section 4 of that article specified that 'the jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law.'

Zangerle interpreted the word 'proceedings,' in Section 2 of Article IV, to include quasi-judicial proceedings and exclude quasi-legislative proceedings. As stated in the Zangerle opinion, 139 Ohio St. at page 574, 41 N.E.2d at page 374:

'Whether the rule in question is one which the Tax Commissioner may or may not make and promulgate is not properly raised here. Our immediate inquiry is whether rule-making by the commissioner and appeal to or revision by the Board of Tax Appeals is such a proceeding as may be appealed to this court under its revisory jurisdiction of the proceedings of administrative officers.

'What rights and whose rights have been affected? What adjudication may be made in respect of this rule? On whom would our decision be binding? To attempt to establish the right or wrong of this rule for the valuation of property in the absence of any owner whose property is to be valued would be a violation of judicial ethics and should not be tolerated.'

And, 139 Ohio St. at page 580, 41 N.E.2d at page 377 in the opinion:

'* * * action taken by a board in adopting a valid rule is not justiciable by a court on review. The validity of a rule can be determined only when that question arises in connection with a matter that is justiciable. * * *'

The first and fifth paragraphs of the syllabus in Zangerle provide:

'1. The revisory jurisdiction of the proceedings of administrative officers authorized by Section 2, Article IV of the Ohio Constitution, contemplates quasi-judicial proceedings only.'

'5. Courts will not aid in making or revising rules of administrative officers, boards or commissions, being confined to deciding whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case.'

Article IV of our Constitution has been amended since Zangerle and the cited subsequent decisions. Section 4(B) of that Article now states:

'The courts of common pleas shall have * * * such powers of review of proceedings of administrative officers and agencies as may be provided by law.'

It seems clear that by employing in the amendatory language the same phrase, 'proceedings of administrative officers,' that had been the subject of our scrutiny in Zangerle, the framers of the constitutional amendment intended to maintain the impact of that and following decisions in the area of judicial review of proceedings of administrative officers and agencies. Therefore, the instant appeal clearly presents the question of the meaning and effect of R.C. § 119.11.

R.C. § 119.11 provides, in part:

'Any person adversely affected by an order of an agency in adopting, amending, or rescinding a rule or in adopting, readopting or continuing a rule, amendment, or rescission previously adopted as an emergency rule as provided in Section 119.03 of the Revised Code, may appeal to the court of common pleas of Franklin county on the ground that said agency failed to comply with the law in adopting, amending, rescinding, publishing, or distributing said rule, or that the rule as adopted or amended by the agency is unreasonable or unlawful, or that the rescission of the rule was unreasonable or unlawful.'

In spite of the above-cited cases, it has apparently been assumed that the General Assembly intended for R.C. § 119.11 to serve as a vehicle for the judicial testing of quasi-legislative proceedings of administrative officers and agencies. As in the case at bar, R.C. § 119.11 has been used as a method of challenging the lawfulness of an administrative regulation in a vacuum-of of obtaining judicial review of a quasi-legislative proceeding. We doubt that the statute ever gave such authority to the Court of Common Pleas of Franklin County, and the amendment to Section 4 of Article IV of the Constitution is supportive of that doubt.

It was contended in the oral argument of this case that the use of R.C. § 119.11 to obtain such a judicial review should be continued for the reason that it would assure a central source of regulatory interpretation. While the reason expressed for such advocacy has merit, the subject matter of the statute has, by its own terms, long been cognizable in a proceeding under R.C. § 119.12, ¹ thus casting doubt upon the reality of such centralization. See Stouffer Corp. v. Board of Liquor Control (1956), 165 Ohio St. 96, 99, 133 N.E.2d 325. Furthermore, it seems logical that any order which effectuates or employs a rule, amendment or rescission that is unreasonable or unlawful could not be an order 'in accordance with law' as that language appears in R.C. § 119.12. The same logic applies to an order effectuating or employing a rule, amendment or rescission which was adopted contrary to lawful procedure.

In the event an appeal is taken from the judgment of the court and the court has previously granted a suspension of the agency's order as provided in this section such suspension of the agency's order shall not be vacated and shall be given full force and effect until the matter is finally adjudicated. No renewal of a license or permit shall be denied by reason of such suspended order during the period of the appeal from the decision of the court of common pleas. The final order of adjudication may apply to any renewal of a license or permit which has been granted during the period of the appeal.

It is our conclusion that R.C. § 119.11 may not be employed to obtain judicial review of quasi-legislative proceedings of administrative officers and agencies, and that such was done in the instant case. Therefore, the judgment of the Court of Appeals is reversed and the cause is dismissed.

Judgment reversed.

C. WILLIAM O'NEILL, C. J., and ABELE, SCHNEIDER and CORRIGAN, JJ., concur. ²

ABELE, J., of the Fourth Appellate District, sitting for MATTHIAS, J.

DUNCAN, Justice (concurring in decision).

Only with great hesitancy do I further fan the fire of the result reached herein, with which I agree. The abandonment of a well understood and widely used statutory vehicle for the judicial review of rules promulgated in accordance with R.C. § 119.01 to 119.13 is a matter of great concern. Therefore, I take this opportunity to make my position clear in this very important decision.

As I understand it, the...