504 N.E.2d 724 | Ohio Ct. App. | 1986
Plaintiffs, Robert W. and Madonna J. Rickard et al., appeal from a judgment of the Franklin County Court of Common Pleas dismissing this action for declaratory judgment against defendants, Ohio Department of Liquor Control et al., and raise two assignments of error in support of their appeal as follows:
"1. The Franklin County Court of Common Pleas erred in finding that the Court of Claims was the only proper forum to hear a declaratory judgment action requesting a state statute to be found unconstitutional.
"2. The court below erred in not finding that appellants had no notice of the effects of the local option election and therefore Ohio Revised Code Sections
This cause was originally filed in the Greene County Court of Common Pleas, which granted a judgment favorable to plaintiffs. However, upon appeal, that judgment was reversed upon jurisdictional grounds for the reason that R.C.
Plaintiffs are the holders of liquor permits, which previously permitted them to sell intoxicating liquor in precinct CFA of the city of Xenia. As a result of a local-option election held on *135
November 8, 1983, precinct CFA and the adjoining precinct of CLB were voted "dry," the effect of which is to prohibit the sale of intoxicating liquor in precinct CFA and to require plaintiffs as permit holders to cease to sell intoxicating liquor in said precinct and to place their liquor permits in safekeeping with the defendant Department of Liquor Control until transferred to another location. See R.C.
By this action, plaintiffs seek a declaratory judgment finding R.C.
The first assignment of error pertains to a jurisdictional issue, the Franklin County Court of Common Pleas having held that the action could be brought only in the Court of Claims. This was erroneous for two reasons: (1) an action for declaratory judgment may be maintained in the court of common pleas against a state agency; and (2) R.C.
The trial court predicated its determination that this action could be brought only in the Court of Claims upon Friedman v.Johnson (1985),
"* * * The state had consented to declaratory judgment suits prior to 1975. See, e.g., Burger Brewing Co., supra [(1973),
The holding of American Life Accident Ins. Co. is of particular significance since the fourth paragraph of the syllabus thereof specifically holds that:
"An action against the administrator of a state bureau for a declaratory judgment pronouncing the rights, status or other legal relations of the plaintiff with reference to a statute is not an action against the state, even though other incidental relief is granted."
In Burger Brewing Co. v. Liquor Control Comm. (1973),
"* * * The fact that the state consented *136 to permit its officers and employees to be sued in the Court of Common Pleas in those cases does not mean the state consented to itself be sued in those cases. * * *"
In Plastic Surgery Associates, Inc., supra, this court stated at 121:
"In American Life Accident Ins. Co. v. Jones * * *, the Supreme Court expressly held that a declaratory judgment action cannot be brought against the state itself but can be brought against a state officer or agency because such an action is not one against the state itself. * * *
"Prior to the consent of the state itself to be sued, it was generally recognized that state officers and agencies were subject to actions in injunction, mandatory injunction, mandamus and declaratory judgment so long as direct relief was not sought against the state but, instead, the remedy sought was to compel the officer or agency to perform a duty enjoined by law. Thus, declaratory judgment actions could be brought against state agencies, but the state itself could not be a party to such action * * *."
Earlier in State, ex rel. Ferguson, v. Shoemaker (1975),
"However, an action against a public officer to compel him to perform a public duty or to enjoin him from performing an act contrary to law is not an action against the state precluded by the doctrine of sovereign immunity. * * *"
R.C.
"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties * * *. To the extent that the state has previously consented to be sued, this chapter has no applicability. * * *"
However, R.C.
Accordingly, the court of common pleas has jurisdiction over a declaratory judgment action against a state agency (rather than the state itself), seeking to determine the constitutionality of a statute. Nor does the fact that ancillary injunctive relief is sought deprive the court of common pleas of jurisdiction. R.C.
R.C.
"Except as provided in section
Such section not only precludes the exercise of jurisdiction by other courts of common pleas but also precludes the Court of Claims from exercising jurisdiction of an action against the Department of Liquor Control to restrain the exercise of a power or to compel the performance of a duty under R.C. Chapters 4301 and 4303.
The ancillary injunctive relief sought in this action is to enjoin the Department of Liquor Control from exercising a power conferred under R.C. Chapter 4301 upon the basis that the statute is unconstitutional. R.C.
Defendants' reliance upon Hoffman Candy Ice Cream Co. v.Dept. of Liquor Control (1954),
However, the sustaining of the first assignment of error does not dispose of this case in light of the issue raised by *138 the second assignment of error and the fact that we conclude that the trial court reached the correct result, although for the wrong reason. Defendants' motion to dismiss ruled upon by the trial court raised not only the jurisdictional issue but also the issue of whether plaintiffs' complaint states a proper claim for relief. Neither the trial court nor this court directly reaches the issues raised by the motion for summary judgment filed by plaintiffs.
The second assignment of error raises the issue of whether R.C.
"Almost every jurisdiction considering the issue has concluded that a liquor license or permit is neither a contract nor a property right but, instead, a mere privilege, revocable pursuant to the terms of the statute authorizing the issuance of the permit. Thus, in this case, plaintiffs have been deprived of no property right by being denied the continuation of use of their liquor permit at the permit premises as a result of the local-option election, since by accepting the liquor permit, they consented to all the conditions of the liquor-control law, including the right of the electors in the precinct involved to vote the area dry in a local-option election."
We further noted at 79:
"In addition, under Ohio law, the holder of the liquor permit does not lose his permit as the result of a local-option election. The permit itself is not revoked by the local-option election. Rather, all that is terminated is the right to use that permit at the permit location. The permit, however, continues to belong to the permit holder and, to the extent that there be a property interest in the permit itself, the permit holder continues to have that property interest. He may renew the permit and may transfer the permit either to another person or to another location, assuming statutory qualifications are met. * * *"
We noted, however, at 79 the possibility that: "[A] liquor permit may be subject to protection of due process or equal protection under some limited circumstances * * *." We continued, however, with the statement that:
"* * * Here, we are dealing strictly with the termination of the right to use a liquor permit at a specific location as a result of the area being voted dry at a local-option election. There is nothing in the statutory provisions or in the manner of conduct of the election that constitutes a denial of due process or a denial of equal protection of the law. * * *" Id. at 79-80.
We are not unmindful, however, that the Second District Court of Appeals in its reported decision in this case in considering the assignments of error, by dicta, found R.C.
The Second District Court of Appeals correctly held that the Greene County Court of Common Pleas had no jurisdiction over this action. Since the Greene County Court of Common Pleas had no jurisdiction over the merits of *139 this action, likewise, the Second District Court of Appeals had no jurisdiction to determine the merits of this action once it determined the jurisdictional issue. However, pursuant to App. R. 12(A), the Second District Court of Appeals was required to rule upon all of the assignments of error even though determination of the jurisdictional issue was dispositive of the case. Accordingly, the ruling of the Second District Court of Appeals upon the merit issue was solely dicta applicable only in the event that the Supreme Court would review the matter and reverse the decision of the Second District Court of Appeals upon the jurisdictional issue, which did not occur. Not only do we find the decision of the Second District Court of Appeals to be inconsistent with that of this court in Scioto Trails Co.,supra, but we also disagree with the reasoning of that court.
Arguably, Scioto Trails Co. dealt only with what is sometimes called substantive due process; whereas, an issue of procedural due process is raised in this case. Such procedural issue is whether plaintiffs are entitled to actual notice of an impending local-option election. We find no constitutional basis for a requirement of such notice.
A local-option election involves a legislative action, not an administrative or quasi-judicial action. Although such an election may affect the right of plaintiffs to use their liquor permits in the precinct in which the election is being held, no rights of plaintiffs are being adjudicated. Rather, the issue on a local-option election is whether legislation shall be adopted making the sale of intoxicating liquor unlawful in the area in which the local-option election is held. The Second District Court of Appeals in Rickard, supra, implicitly equated a local-option election to a quasi-judicial proceeding speaking in terms of notice and hearing, stating in part at 108:
"* * * Elections provide the permit holders with their hearing. The notice required of the hearing must be reasonably calculated to apprise the permit holder of the `hearing' so that he may meaningfully participate in the process. * * *"
Were a quasi-judicial process involved, notice and hearing might well be required even though no property right be involved. However, an individual who may be affected by pending legislation is not entitled to specific actual notice and hearing with respect to whether such legislation will be adopted. In Illinois, which has local-option laws similar to those of Ohio, it has expressly been held that a person licensed to sell intoxicating liquor has no constitutional right to notice of an impending local-option election. See Malito v. Marcin (1973),
R.C.
The petition was filed in a public office and available for public inspection. As indicated in Scioto Trails, Co., supra,
every liquor permit holder takes his permit subject to the holding of a local-option election. Such permit holder has it within his power to ascertain whether a petition for a local-option election has been filed potentially affecting the sale of intoxicating liquor at the permit permises by timely ascertaining whether such a petition has been filed with the board of elections. Although R.C.
Although plaintiffs broadly assert that R.C.
R.C.
"No permit premises shall remain in operation inconsistent with the results of a local option election after the thirty day period set forth in section
R.C.
"If, as the result of a local option *141
election, * * * the use of a permit is made wholly unlawful, the permit holder may, within thirty days after the certification of such final result by the board of elections to the department, deliver his permit to the department for safekeeping as provided in section
R.C.
Defendants contend that plaintiffs' rights are barred by failing either to file a protest pursuant to R.C.
The question is whether such permit holders have a constitutional due process right to prior notice that a local-option election will be held which will affect their continued right to remain in operation at the permit premises inconsistent with the results of the local-option election. We hold that a permit holder has no constitutional right to specific notice of an impending local-option election, which may affect the continued sale of intoxicating liquor at the permit premises, since a local-option election is a legislative action by the electorate of the district involved.
As we indicated above, the permit holder has constructive notice of the filing of the petition for the local-option election in a public office (the board of elections), which petition is open to public inspection. As we noted in SciotoTrails Co., plaintiffs herein accepted the liquor permit and commenced operation of the permit premises, including the sale of intoxicating liquors there, with the knowledge and understanding that the statutes of Ohio, R.C.
Accordingly, as we did in Scioto Trails Co., we find that R.C.
For the foregoing reasons, although we sustain the first assignment of error, the second assignment of error is overruled, and we affirm the judgment of the Franklin County Court of Common Pleas because that court reached a correct result, dismissal of plaintiffs' action, since R.C.
Judgment affirmed.
MOYER, P.J., and TYACK, J., concur.