Indiana Alcoholic Beverage Commission v. Biltz, 20745

Decision Date27 March 1968
Docket NumberNo. 20745,20745
Citation235 N.E.2d 79,142 Ind.App. 418
PartiesThe INDIANA ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. Imogene BILTZ, Appellee.
CourtIndiana Appellate Court

John J. Dillon, Atty. Gen., Frank M. Maley, Deputy Atty. Gen., for appellant.

James C. Courtney, James W. Bradford, Indianapolis, for appellee.

COOPER, Judge.

This is a proceeding for a a judicial review of a final order and decision of the Superior Court of Marion County in General Term, which was adverse to the Appellant, Indiana Alcoholic Beverage Commission, hereinafter designated as the A.B.C.

This matter is now before us on the Appellee's Motion to Dismiss, which said Motion is as follows:

'Appellee, Imogene Biltz, respectfully moves this Court that this appeal be dismissed and shows the following facts in support thereof:

'1. Appellant has not perfected its appeal within 90 days from the day of Final Order of General Term of Marion Superior Court, contrary to Rule 2--2 of the Indiana Supreme Appellate Courts.

'2. The statute under which this matter was appealed to the General Term of the Marion Superior Court provides that the Order of the Court 'shall be final' and no further appeal is authorized (Acts 1935, Chapter 226, Sec. (42) 46, Page 1056; 1937, Chapter 197, Sec. 12, Page 931; 1939 Chapter 30, Sec. 7, Page 79--Burns' Ind.Stats.Ann. 12--921.

'WHEREFORE, Appellee prays that the appeal be dismissed with prejudice, the costs of this action be assessed against the Appellant, and for all other relief proper in the premises.'

It is the contention of the A.B.C. that it has perfected its appeal pursuant to Rule 2--2 of the Rules of the Supreme Court of Indiana.

In reviewing the record now before us, it appears that the Marion Superior Court in General Term rendered its final order and decision on July 1, 1966. The A.B.C. filed a motion for a new trial on July 5, 1966. On February 6, 1967, the reviewing court overruled the A.B.C.'s motion for a new trial.

Thereafter, on April 27, 1967, the A.B.C. filed a petition for an extension of time in which to file its transcript of the record and assignment of errors. This petition was granted and the time was extended to and including June 1, 1967, in which to file said record and assignment of errors. Subsequently, the A.B.C. filed two additional petitions for extensions of time both of which were granted, and the last order which was granted extended the time to and including August 30, 1967, in which to file the transcript of the record and the assignment of errors. The transcript and assignment of errors were filed with the Clerk of this court on August 30, 1967.

Historically, there was no right of appeal from a ministerial act of an administrative board unless such right was specifically given by the statute. See Cushman v. Hussey (1918) 187 Ind. 228, 118 N.E. 816; State Board of Health, etc., v. Ort, Township Trustee (1926) 84 Ind.App. 260, 151 N.E. 31.

It was further held that the right of appeal from administrative boards applied only to decisions involving the exercise of judicial power. See Financial Aid Corp. v. Wallace, Dir. of the Dept. of Financial Inst. et al. (1939) 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736; Board of Commissioners of Dearborn County v. Droege et al. (1946) 224 Ind. 446, 68 N.E.2d 650; Hall et al. v. Kincaid et al. (1917) 64 Ind.App. 103, 115 N.E. 361.

It was previously held that where the special statutes regulating procedure before administrative boards failed to provide for appellate review of the findings of the Court which reviewed the orders of administrative board, such appellate review could not be taken. See Cincinnati I. & W.R. Co. et al., v. Board of Public Works of the City of Indianapolis, et al., 187 Ind. 235, 118 N.E. 957; Luten v. Schmidt, et al. (1928) 88 Ind.App. 134, 163 N.E. 536; Stockton et al. v. Yeoman et al. (1912) 179 Ind. 61, 100 N.E. 2; Hughes, et al., v. Parker et al. (1897) 148 Ind. 692, 48 N.E. 243; Randolph v. City of Indianapolis et al. (1909) 172 Ind. 510, 88 N.E. 949; Brown, et al., v. Porter (1871) 37 Ind. 206.

The rule as set out in the foregoing cases is no longer valid since the holding of our Supreme Court in the case of Warren v. Indiana Telephone Co. In that case, the Supreme Court stated that even when the legislature has not provided for an appeal to the Supreme Court, such right exists under constitutional authority. See Warren v. Indiana Telephone Company (1940) 217 Ind. 93, 26 N.E.2d 399; Joseph E. Seagram and Sons, Inc., v. Board of Commissioners of Awrenceburg Flood Control District (1943) 220 Ind. 604, 45 N.E.2d 491; Public Service Commission of Indiana et al., Indianapolis Water Co. v. City of Indianapolis (1956) 235 Ind. 70, 83, 131 N.E.2d 308.

The same rule applies in those instances in which the statute prohibits an appeal or declares that the judgment of the nisi prius court is to be final. Therefore, we are of the opinion that the provision in Sec. 12--921, Burns' Indiana Statutes Annotated that the order of the Court (in this case, the Marion Superior Court in General Term) shall be final, is ineffective. See also the 1965 amendments of Sec. 12--921, Burns' Indiana Statutes, pertaining to the lower courts having jurisdiction of reviews.

We believe that the law is well established that there is no statutory provision for an appellate review of the findings, order, or decisions arising out of a trial court's review of the orders or decisions of administrative boards, or appeals in the usual sense. However, we find such authority under the due process clause of our constitution and its interpretation by our Supreme Court in the cases of Warren v. Indiana Telephone Company, Supra, and Joseph E. Seagram and Sons, Inc. v. Board of Commissioners, Supra.

In the Warren case, supra, 217 Ind. at page 105, 26 N.E.2d at page 404 our Supreme Court stated:

'Strictly speaking, there is no such thing as an appeal from an administrative agency. It is correct to say that the orders of an administrative body are subject to judicial review, and that they must be so to meet the requirements of due process. Such a review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers * * *'

See also: State Board of Tax Commissioners, et al., v. Indpls. Lodge No. 17, Loyal Order of Moose, Inc. (1964) 245 Ind. 614, 625, 200 N.E.2d 221; State ex

rel. Harris, et al., v. Superior Court of Marion County et al. (1964) 245 Ind. 339, 356, 197 N.E.2d 634; Mills v. City of Winchester (Castor v. City of Winchester) (1959) 130 Ind.App. 397, 400, 162 N.E.2d 97.

We judicially know that the A.B.C. is an administrative agency or body. Our Supreme Court in the case of State, ex rel. Pollard and Burton D/B/A, etc., v. Superior Court of Marion Cunty, Room 3, Brennan, Judge (1954) 233 Ind. 667, 122 N.E.2d 612, at page 677, in speaking of the A.B.C. states:

'The Commission is an administrative board, and on appeal the trial court cannot try the matter de novo.' (our emphasis)

We have reviewed the Alcoholic Beverage Commission Act and fail to find wherein there is any provision providing for a trial de novo in the Marion Circuit or Superior Courts, and we are of the opinion that none is contemplated. We think the law is clear that in the case of a denial, or revocation of a permit or license, the procedure outlined in the Alcoholic Beverage Commission Act must be followed in order to secure a judicial review by a court of the action and ruling of said board, after the final hearing and determination before the administrative body, and such a judicial review is not a trial in the usual snese.

Since the ruling or decision of the Superior Court of Marion County in reviewing the proceedings of the A.B.C. was entered without a trial, we are of the opinion that the motion for new trial presented nothing and could not have extended the Appellant's time in which to perfect an appeal to our court for a review of the proceedings below. Under Rule 2--2 of the Rules of the Supreme Court, the time for perfecting the appeal by filing the transcript and assignment of errors with the Clerk of this Court, had expired before the first petition for extension of time had been granted by order of this court. Our Supreme Court has held in many cases that the failure to perfect an appeal from the final decision or judgment within 90 days, or within time properly extended pursuant to Rule 2--2, fails to give an appellate court jurisdiction of the appeal and it should be dismissed. State Board of Tax Commissioners, et al., v. Stanley, et al., etc. (1952) 231 Ind. 338, 341, 108 N.E.2d 624; Stocker v. City of Hammond (1938) 214 Ind. 628, 16 N.E.2d 874; Brady et al., v. Garrison et al. (1912) 178 Ind. 459, 460, 99 N.E. 738; Vail v. Page (1911) 175 Ind. 126, 131, 93 N.E. 705.

By reason of what we have heretofore stated, we do not believe there is any merit in the Appellee's second paragraph of her Motion to Dismiss. It is our opinion that we correctly stated the law applicable in the recent case of Indiana Alcoholic Beverage Commission v. B & T Distributors, Inc., (1967) Ind.App., 228 N.E.2d 35, wherein this Court stated:

'Under Rule 2--2, and the case law applicable to such situations as now confronts us, we are compelled to agree with the Appellee. In discussing judicial reviews, our Supreme Court in the case of The City of Plymouth, Ind. v. Stream Pollution Cont. Bd. of the State of Ind. (1958) 238 Ind. 439, 445, 151 N.E.2d 626, stated:

'As there is no trial in the usual sense upon the judicial review, there can be no basis for asking for a new trial when a losing party is disappointed or dissatisfied with the outcome of the judicial review.'

'Also in the case of Dawson, et al. v. Wright, Mayor of City of Anderson, et al. (1955) 234 Ind. 626, 630, 129 N.E.2d 796, we note...

To continue reading

Request your trial
3 cases
  • Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, 1268A218
    • United States
    • Court of Appeals of Indiana
    • April 27, 1970
    ...deprives this Court of jurisdiction of the appeal and we only have jurisdiction to dismiss the matter. Indiana Alcoholic Beverage Comm. v. Blitz (1968), Ind.App., 235 N.E.2d 79; Stover v. Parker GMC Truck Sales, Inc., supra; City of Indianapolis v. Hoffman (1966), 247 Ind. 228, 213 N.E.2d 7......
  • Gerhardt v. City of Evansville
    • United States
    • Court of Appeals of Indiana
    • August 26, 1980
    ...v. City of Winchester (Castor v. City of Winchester) (1959) 130 Ind.App. 397, 400, 162 N.E.2d 97. Indiana Alcoholic Beverage Commission v. Biltz, (1968) 142 Ind.App. 418, 235 N.E.2d 79, 81-82. (Emphasis Warren and its progeny have held that the availability of judicial review of administrat......
  • Colbert v. Allied Concord Financial Corp., 470A69
    • United States
    • Court of Appeals of Indiana
    • October 26, 1970
    ...the Rules, deprives this Court of jurisdiction of the appeal, and we only have jurisdiction to dismiss the matter. Ind. A.B.C. v. Biltz (1968), 142 Ind.App. 418, 235 N.E.2d 79; Stover v. Parker GMC Truck Sales (1967), 140 Ind.App. 475, 223 N.E.2d 777, 778; City of Indianapolis v. Hoffman (1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT