Hoffman Candy & Ice Cream Co. v. Department of Liquor Control

• Decision Date: 03 February 1954
• Citation: 121 N.E.2d 837,52 O.O. 168,96 Ohio App. 304
• Parties: , 54 O.O. 314 The HOFFMAN CANDY & ICE CREAM CO., Appellant, v. The DEPARTMENT OF LIQUOR CONTROL of The State of Ohio, Appellee.
• Court: Ohio Court of Appeals

Page 304

96 Ohio App. 304

121 N.E.2d 837, 54 O.O. 314

The HOFFMAN CANDY & ICE CREAM CO., Appellant, v. The DEPARTMENT OF LIQUOR CONTROL of The State of Ohio, Appellee.

Court of Appeals of Ohio, Franklin County.

Feb. 3, 1954.

Syllabus by the Court.

1. Section 6064-30, General Code, which, inter alia, provides that, 'Neither the department, nor the members of the board, nor the director shall be personally liable in any action at law for damages,' and subdivision (9) of Section 6064-8, General Code, which authorizes the Department of Liquor Control to be sued 'only in connection with the execution of leases of real estate and such purchases and contracts necessary for the operation of the state liquor stores that are made under the provisions of this act,' are in pari materia, and the former section constitutes an express limitation on the right to sue authorized by the latter section.

2. An action for damages for breach of contract does not lie against the Department of Liquor Control for the breach of a contract by the terms of which a person was to act as agent of the department in the sale of spirituous liquor at retail by the bottle, which contract was made and entered into by the department under authority of Section 6064-11, General Code, 116 Ohio Laws, Pt. 2, 226, and pursuant to power conferred upon the Department of Liquor Control by Section 6064-8, General Code, to engage in the sale and distribution of spirituous liquor in Ohio.

Isadore Toppor, R. Brooke Alloway, Columbus, and E. A. Plazer, Cleveland, for appellant.

C. William O'Neill, Atty. Gen., Robert Leach, Columbus, and Ralph N. Mahaffey, Ashville, for appellee.

PER CURIAM.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining a demurrer to plaintiff's petition, and, the plaintiff electing not to plead further, dismissing the action.

Defendant demurred on two grounds, namely, first, that the petition does not state facts which show a cause of action; and second, that the court had no jurisdiction of the subject of the action. The demurrer was sustained on both grounds.

The question presented is whether the Department of Liquor Control can be sued for damages for the breach of a contract by which the plaintiff, appellant herein, was to act as the agent of the department in the sale of spirituous liquor by the bottle at retail and which contract was made and entered into by the department with the plaintiff as...