Rankin-Thoman, Inc. v. Caldwell

• Decision Date: 11 June 1975
• Docket Number: RANKIN-THOMA,Nos. 74-441 and 74-471,INC,s. 74-441 and 74-471
• Citation: 71 O.O.2d 411,42 Ohio St.2d 436,329 N.E.2d 686
• Parties: , 71 O.O.2d 411 , Appellant, v. CALDWELL, State Fire Marshal, Appellee. AMERICAN ELECTRIC POWER CO. et al., Appellants, v. CHIEF OF the DIVISION OF FORESTRY AND RECLAMATION, Appellee.
• Court: Ohio Supreme Court

Page 436

42 Ohio St.2d 436

329 N.E.2d 686, 71 O.O.2d 411

RANKIN-THOMAN, INC., Appellant, v. CALDWELL, State Fire Marshal, Appellee.

AMERICAN ELECTRIC POWER CO. et al., Appellants, v. CHIEF OF the DIVISION OF FORESTRY AND RECLAMATION, Appellee.

Nos. 74-441 and 74-471.

Supreme Court of Ohio.

June 11, 1975.

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. (Paragraph one of the syllabus in Fortner v. Thomas, 22 Ohio St.2d 13, 257 N.E.2d 371, approved and followed.)

2. R.C. 119.11, which provides for an appeal to the Court of Common Pleas from the quasi-legislative proceedings of administrative officers and agencies, is unconstitutional, in violation of Section 4(B), Article IV of the Ohio Constitution.

The issues raised by these appeals are identical.

The facts in case No. 74-441 are:

On February 27, 1973, the State Fire Marshal of Ohio adopted the rules and regulations which comprise the Ohio Fire Code. Section 14.6 of that Code requires the installation of a household fire warning system in all dwellings of more than one unit, from and after the effective date of the regulation.

On March 9, 1973, appellant, Rankin-Thoman, Inc., an Ohio corporation, filed two actions in the Court of Common Pleas of Franklin County. The first, a declaratory judgment action, is not before this court. The second, an appeal pursuant to R.C. 119.11 from the adoption of the regulations, was dismissed by the Court of Common Pleas for lack of jurisdiction. The Court of Appeals affirmed the judgment dismissing the appeal.

The facts in case No. 74-471 are:

On May 8, 1973, the Chief of the Division of Forestry and Reclamation adopted rules and regulations pertaining to stripmining and the reclamation of mined land.

On May 22, 1973, appellants, American Electric Power Company and others, filed an appeal pursuant to R.C. 119.11 from the adoption of the regulations, alleging that they were unreasonable and unlawful. The Court of Common Pleas of Franklin County dismissed the appeal for lack of jurisdiction. The Court of Appeals affirmed the judgment dismissing the appeal.

The causes are now before this court pursuant to the allowance of motions to certify the records.

Topper, Alloway, Goodman, DeLeone & Duffey, John J. Duffey and Clifford M. St. Clair, Columbus, for appellant in case No. 74-441.

Lane, Alton & Horst, John W. Edwards, Columbus, Freifield, Wehr, Moreland & England, William W. Wehr, Steubenville, Graham & Graham, James F. Graham, Zanesville, Neal S. Tostenson, Cambridge, Weinman, Downer, Quinn, Adulewicz & Kerr and William M. Downer, Steubenville, for appellants in case No. 74-471.

William J. Brown, Atty. Gen., Gary E. Brown and Jay McKirahan, Columbus, for appellees.

PAUL W. BROWN, Justice.

In Zangerle v. Evatt (1942), 139 Ohio St. 563, 41 N.E.2d 369, Fortner v. Thomas (1970), 22 Ohio St.2d 13, 257 N.E.2d 371, M. J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 290 N.E.2d 562, Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 296 N.E.2d 261, and DeLong v. Board of Edn. (1973) 36 Ohio St.2d 62, 303 N.E.2d 890, this court held that 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. In Fortner, supra, and Burger Brewing Co., supra, we declared that R.C. 119.11 could not be employed to obtain judicial review of quasi-legislative proceedings of administrative officers and agencies. Those unequivocal judicial pronouncements foreclose the attempt by each appellant herein to appeal a quasi-legislative determination pursuant to R.C. 119.11.

However, these appeals present a broader question for determination, namely whether any situation exists, other than the review of quasi-legislative proceedings, to which R.C. 119.11 would be relevant. We conclude that the sole purpose and effect of R.C. 119.11 is to provide judicial review by the Court of Common Pleas of quasi-legislative proceedings, and therefore hold that section to be unconstitutional, in violation of Section 4(B), Article IV of the Ohio Constitution.

The distinction between quasi-legislative and quasi-judicial proceedings has sometimes been predicated upon procedural differences. Quasi-judicial proceedings require notice, hearing and the opportunity for introduction of evidence. Kelley, supra; DeLong, supra. Quasi-legislative proceedings do not. More frequently, however, courts have examined the nature of the proceedings themselves, to ascertain whether they involve the making or revising of rules, rather than the application of rules in an adjudicatory manner. Thus, in Zangerle, supra, this court determined the adoption of a rule by the Tax Commissioner to be quasi-legislative in character, and stated that '(c)ourts 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.' In Fortner, supra, and Burger Brewing Co., supra, we declined to hear appeals filed pursuant to R.C. 119.11, because in each case the appellant sought judicial review in the Court of Common Pleas of a regulation, not a determination of its application in an administrative adjudication.

Paragraph one of R.C. 119.11 provides that:

'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 explicit language, R.C. 119.11 provides for an appeal to the Court of Common Pleas from the making, revising, or rescinding of administrative rules, not from the application thereof in an adjudicatory proceeding. The language of the statute is clear and precise, and speaks to the 'adopting, amending, or rescinding a rule,' and to the failure 'to comply...