GAY v. Board of Liquor Control

151 N.E.2d 686 | Ohio Ct. App. | 1958

This cause is on for hearing upon the motion of John A. and Dorothy Gay, hereinafter referred to as the appellees, for an order dismissing the appeal of the Department of Liquor Control for the reason that the same is not properly taken pursuant to the provisions of Section 119.12, Revised Code.

The pertinent part of the statute referred to reads as follows:

"* * * Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in Sections 2505.01 to 2505.45, inclusive, of the Revised Code. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record. * * *" (Emphasis added.)

It is our opinion that the right to appeal by the Department of Liquor Control is not authorized in a case where the only error complained of was the finding by the Common Pleas Court that the defense of entrapment was well taken. The right of appeal of the agency, which, in this case, includes the Board of Liquor Control, must relate to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency. While the defense of entrapment is a mixed question of law and fact, a ruling on that question does not give a right of appeal as contemplated by Section 119.12, Revised Code. Entrapment is a common-law and not a statutory rule of evidence.

The motion of the appellees herein is well taken, and the appeal will be dismissed.

Motion sustained.

MILLER, J., concurs.

BRYANT, J., not participating.