442 N.E.2d 799 | Ohio Ct. App. | 1981
Lead Opinion
This is an original action wherein relator seeks a writ of mandamus ordering respondent to hold a hearing upon the verified complaint filed by relator in accordance with R.C.
An examination of the record in this case, which was stipulated by the parties to be a statement of facts and certain pieces of proffered evidence, indicates Falhaber Datsun, Inc. submitted an application for a dealer's license on March 3, 1980. On the following day, said corporation received a dealer's license after the proposed site of the dealership was inspected by an investigator of the Bureau of Motor Vehicles.
Pursuant to R.C.
"All clerical, inspection, and other agencies for the execution of the powers and duties vested in the board shall be in the bureau of motor vehicles, which shall provide the necessary employees as authorized by section
Walter J. Arrowsmith, an administrative assistant at the Bureau of Motor Vehicles, conducted the investigation. Said investigation included interviews with relator, William H. Falhaber, a representative of Nissan Motor Corp., the field investigator of the Bureau of Motor Vehicles who inspected the proposed site of the dealership prior to the issuance of the dealer's license, the chief investigator of the Bureau of Motor Vehicles and the assistant chief of the vehicle registration division of the Bureau of Motor Vehicles. After reviewing the notes and conclusions drawn by Arrowsmith, Dean L. Dollison, Registrar of Motor Vehicles and, pursuant to R.C.
Relator's attempt to appeal the decision of respondent, as represented by the letter from Dean L. Dollison, to the Court of Common Pleas of Franklin County failed upon this court's holding that the decision by respondent was not an appealable order. This court also found that, even if the decision not to proceed against Falhaber Datsun, Inc. was a final, appealable order, relator would have no standing to bring the appeal, relator not being adversely affected by such an order. See this court's decision in Barron v. State (Dec. 2, 1980), No. 80AP-470, unreported.
In State, ex rel. Pressley, v. Indus. Comm. (1967),
"Mandamus will lie to permit a private individual to compel a public officer to perform an official act, where such officer is under a clear legal duty to do so, and where the relator has an interest, such as that of a taxpayer, or he is being denied a private right or benefit by reason of such public officer's failure to take action to perform that act which he is under a clear legal duty to perform." *456
Relator's petition for a writ of mandamus raises the single issue of whether respondent has a duty to conduct a hearing upon the verified complaint filed by relator so as to determine whether or not the dealer's license issued to Falhaber Datsun, Inc. should be revoked. Relator contends that R.C.
At the center of this dispute between the parties is R.C.
"The board may make rules governing its actions relative to the suspension and revocation of dealers', motor vehicle leasing dealers', distributors', auction owners', and salespersons' licenses and may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the conduct of any licensee under sections
A reading of that portion of R.C.
"All clerical, inspection, and other agencies for the execution of the powers and duties vested in the board shall be in the bureau of motor vehicles, which shall provide the necessary employees as authorized by section
A review of the record before us indicates that the report of the investigation conducted by Arrowsmith was made available to respondent but only reviewed by Dean Dollison, Registrar of the Bureau of Motor Vehicles and ex officio secretary and executive officer of respondent. It appears from the record that Dollison alone concluded that relator's verified complaint should be dismissed without further action. Based upon those undisputed facts we find that respondent has complied with R.C.
Resolution of this issue requires that we define the nature of relator's interest in the procedures of the respondent. R.C.
The facts of this case indicate that relator filed a verified complaint alleging that Falhaber Datsun, Inc. was improperly issued a dealer's license by the Bureau of Motor Vehicles. Once the verified complaint was filed, the record indicates that the investigation was conducted by an employee of the Bureau of Motor Vehicles and that the Registrar of the Bureau of Motor Vehicles reviewed the report of the investigation and concluded that there was no evidence to support relator's complaint. Such a procedure does not comply with the intent of the legislature as manifested by the language in R.C.
While relator's interest in the proceedings of respondent is limited, due process requires that, if respondent delegates the investigation to the Bureau of Motor Vehicles, there must be a hearing in which the respondent must determine whether relator's verified complaint presents probable cause for respondent to engage in a proceeding against the dealer in question, based on the evidence arising from the investigation.
The probable cause hearing is important in two respects. First, it assures all participants that the investigation conducted by the Bureau of Motor Vehicles was complete. Secondly, a probable cause hearing before respondent guarantees that an impartial authority has reviewed results of the investigation and made a decision as to whether to continue with proceedings against the person accused in a verified complaint.
As previously stated, upon the filing of a verified complaint relator's interest in the subsequent proceedings is limited. Relator claims that, upon the filing of a verified complaint, relator is entitled to participate in a hearing before respondent conducted pursuant to R.C. Chapter 119. We do not agree. Relator's position as a complainant pursuant to R.C.
"`Party' means the person whose interests are the subject of an adjudication by an agency."
This court has previously ruled in Barron, supra, that relator's interests in the proceeding before respondent did not rise to that of a person afforded an adjudication hearing pursuant to R.C. Chapter 119, for the purposes of appeal. Relator's interest in the subsequent proceedings of respondent following the filing of a verified complaint does not rise to the level of that which would require a hearing within the requirements of R.C. Chapter 119.
R.C.
Accordingly, relator is hereby allowed a writ of mandamus ordering respondent to conduct a hearing to determine whether there is evidence to support further action against Falhaber Datsun, Inc.
Writ allowed.
MOYER, J., concurs. *458
WHITESIDE, J., dissents.
Dissenting Opinion
Being unable to concur in the conclusions reached by the majority, I must respectfully dissent.
First, I cannot concur in the finding that relator is entitled to a due process hearing. In my view, relator has no due process rights involved, being only the complainant of a complaint filed pursuant to R.C.
Second, I cannot concur in the determination of the majority that respondent board can delegate its responsibilities under R.C.
"All clerical, inspection, and other agencies for the execution of the powers and duties vested in the board shall be in the bureau of motor vehicles, which shall provide the necessary employees * * *."
Here we are concerned with an investigation, not clerical or inspection functions. Application of the doctrines ejusdemgeneris as well as that of expressio unius est exclusio alterius
clearly indicates that investigations are not included within the contemplation of R.C.
Respondent contends that since R.C.
Webster's Third New International Dictionary defines "investigate" as "inquire into systematically" or "to subject to an official probe" or "to conduct an official inquiry." The same dictionary defines investigation as "the action or process of investigating" or "detailed examination" or "a searching inquiry." The American Heritage Dictionary defines investigate as "to observe or inquire into in detail." That dictionary defines investigation as "the act, process or an instance of investigating; inquiry." Further insight might be gained from the discussion of the word "hearing" in Black's Law Dictionary, which concludes with a statement:
"Hearings are extensively employed by both legislative and administrative agencies and can be adjudicative or merely investigatory. Adjudicative hearings can be appealed in a court of law. * * *"
Perhaps the important distinction is between investigatory and adjudicatory hearings. An investigation is not an adjudication but may lead to an adjudication. The word "investigation" is *459
sometimes used in connection with judicial proceedings. See R.C.
"The motor vehicle dealers board shall hear appeals which may be taken from an order of the registrar of motor vehicles, refusing to issue a license. * * * In such appeals the board may make investigation to determine the correctness and legality of the order of the registrar.
"* * *
"The board * * * may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the conduct of any licensee under Sections
The board apparently was advised to bifurcate the matter and first to conduct an investigation and then to conduct an adjudicatory hearing if the investigation revealed probable cause for revocation of the license involved. There is nothing in the statute, nor in any rule adopted by the board, providing for such a bifurcated procedure. Rather, the mandate of R.C.
The essence of the requirements of R.C.
Respondent goes on to state, however, that the board lacks discretion "to determine which complaints, after investigation, merit the issuance of formal charges * * * and the holding of an adjudicatory hearing." Accepting respondent's propositions, it is still the duty of the board to investigate the charges made by the verified complaint. Here, the board did not investigate but instead delegated the responsibility. The usage of the word "investigate" is given clearer meaning when it is recognized that with respect to appeals the preceding paragraph of the same section provides that "the board may make investigation to determine the correctness and legality of the order." In this section, the investigation is for a purpose of making a determination. That determination must be made by the board. The board may well find after investigation that no ground existed upon *460 which the license could have been refused but it is the responsibility of the board to make such determination predicated upon the investigation. Here the board has not done so. While the investigation may have been commenced, it is not complete.
While I dissent from the issuance of a writ of mandamus ordering respondent board to conduct a hearing upon the verified complaint, I would find that a limited writ of mandamus should issue requiring the board to comply with R.C.