196 N.E.2d 338 | Ohio Ct. App. | 1962
This is an appeal on questions of law from a judgment of the Common Pleas Court sustaining a motion of *2
Robert Evans, appellee herein, for a judgment in his favor, for the reason that the Ohio Real Estate Commission, appellant herein, had failed to certify to the Common Pleas Court a complete record of the proceedings against Evans as required by Section
The appellant makes the following assignments of error:
(1) That the order is contrary to law.
(2) That the transcript of the record of the proceedings of the Ohio Real Estate Commission filed in the Common Pleas Court was not certified as required by Section
(3) That no opportunity for a hearing of the merits of the appeal from the order of the Ohio Real Estate Commission was granted to the commission as prescribed by Section
(4) That the Common Pleas Court erred and abused its discretion in reversing the order of the Ohio Real Estate Commission.
(5) That such judgment of the Common Pleas Court is contrary to the evidence and the law.
(6) That the appointed secretary of the Ohio Real Estate Commission, a classified employee of the Department of Commerce, was not the proper party to certify the transcript of the proceedings of the commission to the Common Pleas Court.
(7) That the court erred on questions of law relating to the construction and interpretation of statutes as revealed by the record.
This court is of the opinion that none of the assignments of error have merit.
It appears that in August 1957 a complaint was filed with the Ohio Real Estate Commission (then the State Board of Real Estate Examiners) against Robert Evans by Paul Merriman and Patricia Merriman, husband and wife. The complaint was originally scheduled for hearing in Toledo, Ohio, on October 1, 1957, and the Merrimans, complainants, were not present, although Evans was present and ready to proceed. At the request of the attorney for the complainant, the commission granted a continuance to the complainants. More than three *3 years and eight months later, in the summer of 1961, the Ohio Real Estate Commission gave notice to Robert Evans that a hearing was scheduled on the complaint. Hearing was held on October 19, 1961, at Toledo, Ohio, and, on the same day, appellant ordered the license of Evans suspended for a period of one year. Thereafter, on November 7, 1961, Evans filed a notice of appeal from such order of the Ohio Real Estate Commission to the Court of Common Pleas of Lucas County, Ohio. On the same day, a judgment was signed by the Common Pleas Court suspending the commission's order pending the appeal to such court.
On November 28, 1961, the Ohio Real Estate Commission, appellee in the Common Pleas Court, filed a motion in such court to extend the time for filing the transcript of its proceedings, which motion was sustained on the same day, and the commission was given an additional ten days within which to file the transcript of its proceedings.
On December 5, 1961, the Ohio Real Estate Commission filed with the Clerk of the Common Pleas Court a purported record of its proceedings.
In considering the claimed errors assigned by appellant herein, the controlling question involves the construction of Section
"Within 20 days after receipt of notice of appeal from an order in any case wherein a hearing is required by Sections
By the clear language of the above-quoted provisions, the filing of the record of the hearing before the Ohio Real Estate Commission on appeal to the Common Pleas Court, without a proper certification by the agency, would not constitute "a complete record of the proceedings in the case." The purported record filed in the Common Pleas Court consisted of a transcript of testimony not certified in any manner at the end thereof. Stapled to the back cover of the transcript are the following, in their order:
1. A paper dated October 19, 1961, purporting to be an excerpt from the minutes of a meeting of the commission on such date, at the bottom of which is typed and without a handwritten signature: "This is to certify this is a true and correct copy taken from the minute book of the Ohio Real Estate Commission. Leo D. Kricker, Secretary."
2. A carbon copy of a letter dated October 26, 1961, addressed to Robert Evans, purporting to enclose a certified copy of the order of the Ohio Real Estate Commission.
3. A letter of transmittal of record of proceedings addressed to the Clerk of the Common Pleas Court of Lucas County, at the end of which appears: "Ohio Real Estate Commission, by Leo D. Kricker, Secretary (signature in writing)."
4. A paper, with the numeral, 2, appearing at the top thereof, referring to exhibit No. 1, original complaint; exhibit No. 2, copy of notice of hearing served for the licensee; exhibit No. 3, request for hearing; exhibit No. 4, stenographic record of testimony and all evidence admitted at the hearing, including proffered evidence, if any; exhibit No. 5, journal entry of the commission; and exhibit No. 6, copy of notice of appeal, followed by the statement: "I hereby certify that the herein transcript and all the attachments hereto are a true and correct record of the proceedings of the hearing cause. By Ohio Real Estate Commission. By Leo D. Kricker (signature) secretary."
5. A copy of a notice dated October 2, 1961, addressed to Robert Evans advising him of the time of a scheduled hearing before Ohio Real Estate Commission.
6. A copy of a letter from Boggs, Boggs Boggs, attorneys *5 for Robert Evans, dated October 11, 1961, addressed to the State Board of Real Estate Examiners (Ohio Real Estate Commission) enclosing a motion to dismiss complaint.
7. An unconforming copy of a journal entry of the Common Pleas Court extending time for filing a transcript of proceedings in such court.
8. A paper addressed to "clerk of courts" stating the costs of transcribing the record in the matter of Robert Evans, to be taxed as a part of the costs of appeal, at the end of which appears, all in typewriting: "Ohio Real Estate Commission. Leo D. Kricker, Secretary."
9. A photostatic copy of notice of appeal.
10. A photostatic copy of a paper entitled "Sworn Statement of Complaint for Filing with the State Board of Real Estate Examiners."
11. Documents, inserted but not attached, marked state's exhibits A, B and C, and respondent's exhibits 1, 2, 3, 4-A and 5.
Under the provisions of Section
It is self-evident that the "agency" referred to in Section
"Section
"`* * * the agency shall prepare and certify to the court a complete record of the proceedings in the case.' *6
"It will be noted that the foregoing section does not provide the manner in which the certification shall be made. An examination of the purported transcript of the testimony discloses that it is certified by Hazel Gibbon, reporter, as being a true and correct copy. Since no provision is to be found in the Administrative Procedure Act on this specific question the same must be governed by the provisions of the Appellate Procedure Act. A. DiCillo, Inc., v. Zoning Board, 59 Ohio Law Abs., 513. The bill of exceptions provided for under this act must be allowed and signed by the trial judge. Section
Furthermore, the pseudo certificate of the secretary, if it were valid, nevertheless does not state that the record contains all the evidence. See Regan, Admx., v. McHugh,
The Attorney General, representing the Ohio Real Estate Commission, appellant in this court, in his oral presentation and brief contrives to cloak the secretary of the commission with authority to certify the record by fallacious implication from the provisions in the statute specifically applying to other unrelated duties of the secretary. A judge of the Court of Common Pleas is required by statute to sign a bill of exceptions on an appeal from that court to this court. A fortiori, should the Ohio Real Estate Commission have less responsibility in certifying the record affecting the rights of a licensee as an alleged violator?
No implied authority of the secretary to certify the record can be derived from Section
Express specific authority provided in the statutes regarding the powers and duties of the secretary excludes any general authority and any implication beyond the express authority. It is stated, as follows, in 50 Ohio Jurisprudence (2d), 165, Section 188:
"A general principle of interpretation is that the mention of one thing implies the exclusion of another; expressio unius estexclusio alterius. General words following the designation of particular subjects are ordinarily restricted by the particular designation to include only things of the same nature as those specifically enumerated. The maxim is to be applied where there is a grant of power, or a direction, to do a particular thing. When a statute directs a thing to be done by a specified means or in a particular manner it may not be done by other means or in a different manner."
The Ohio Real Estate Commission is an administrative agency set up by statute, Section
This court, in Leiphart Lincoln-Mercury, Inc., v. Bowers, TaxCommr.,
"* * * Administrative officers and agencies have no common-law or inherent powers other than have been granted to or conferred on them by law. As a creature of statute, it is without power to exercise any jurisdiction beyond that conferred by statute. The applicable sections of the Revised Code set out above are statutory, jurisdictional prerequisites as to the time for doing an act, and without compliance therewith the administrative agency is without power or authority. The jurisdiction of such officials and tribunals must be invoked in the manner prescribed by statute, and their proceedings must be in accordance with valid statutory requirements. They are authorized to act only in the mode prescribed by statute and can not dispense with the essential forms of procedure which condition their statutory powers, or have been prescribed for the purpose of investing them with power to act. 1 Ohio Jurisprudence (2d), 487, 488, Section 88; 73 Corpus Juris Secundum, 367-369, 400-401, Sections 48, 49 and 74; AmericanRestaurant Lunch Co. v. Glander, supra [
A protection against bureaucratic encroachment upon our judicial system is wisely provided by the Legislature granting the aggrieved citizen recourse by appeal to the courts. And the Legislature, in its wisdom, has plainly stated that such avenue cannot be thwarted, and any failure to abide by the provisions empowers the Common Pleas Court to annul the proceedings of the commission, to wit, "failure of the agency to comply within the time allowed shall, upon motion, cause the court to enter a finding in favor of the party adversely affected."
The noncompliance by the Ohio Real Estate Commission, appellant herein, to properly file a duly verified record of the proceedings before it extricated Robert Evans, appellee herein, from what would turn out to be a bureau booby trap. It appears that the alleged violator, Evans, was, for no valid reason, kept in jeopardy of losing his license, for three years and eight months. Much criticism is leveled at the courts for delay, while the administrative agencies are created to expedite such matters. Bureaucracy in government by untrammeled practices is becoming a putative fourth branch of government overshadowing the true constitutional triumvirate of checks and *9 balances, namely the executive, legislative, and judicial branches.
For the foregoing reasons and upon the above authority, the assignments of error of the appellant, Ohio Real Estate Commission, are not well taken, and, therefore, the judgment of the Common Pleas Court is affirmed.
Judgment affirmed.
DEEDS and FESS, JJ., concur.