Summary
In Matash, supra, the court interpreted a prior version of R.C. 119.12 which allowed twenty days to certify the record but also stated that a failure to certify within that time period must result in a judgment for the party adversely affected.
Summary of this case from In re TroianoOpinion
No. 38603
Decided November 18, 1964.
Appeal — From administrative agency to Common Pleas Court — Section 119.12, Revised Code — Record of proceedings to be certified to court — Failure to file within 20 days — Appellant entitled to judgment on motion.
Where an appeal from an order of an administrative agency has been duly made to the Common Pleas Court pursuant to Section 119.12, Revised Code, and the agency has not prepared and certified to the court a complete record of the proceedings within twenty days after receipt of the notice of appeal and the court has granted the agency no additional time to do so, the court must, upon motion of the appellant, enter a finding in favor of the appellant and render a judgment for the appellant.
APPEAL from the Court of Appeals for Trumbull County.
On January 11, 1963, the Department of Insurance, herein referred to as the agency, issued an order pursuant to an adjudication revoking the license of Matash to engage in the insurance business. This order was based upon the conviction of Matash, who had been engaged in the bail bond branch of the insurance business, of the crime specified in Section 2917.07, Revised Code, of corruptly attempting to influence a witness before the grand jury.
Matash duly filed a notice of appeal to the Common Pleas Court of Trumbull County on January 25, 1963.
So far as pertinent, Section 119.12, Revised Code, provides:
"Any party adversely affected by any order of an agency issued pursuant to an adjudication * * * revoking * * * a license, may appeal from the order of the agency to the Court of Common Pleas * * *.
"* * *
"Any party desiring to appeal shall file a notice of appeal * * *.
"* * *
"Within twenty days after receipt of notice of appeal from an order * * * the agency shall prepare and certify to the court a complete record of the proceedings in the case. 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. Additional time, however, may be granted by the court, not to exceed ten days, when it is shown that the agency has made substantial effort to comply."
On February 28, 1963 (34 days after the filing of the notice of appeal), Matash filed a motion for judgment in his favor, on the ground that the agency had not prepared and certified to the court a complete record of the proceedings as required by the foregoing-quoted statutory provisions.
This motion was heard on March 8, 1963, at which time the agency moved for leave to file such a record instanter.
On June 6, 1963, the Common Pleas Court in its judgment found that the agency had failed "to comply with the mandatory requirements of Section 119.12," entered a finding in favor of Matash and ordered that he "be restored his license to do insurance business."
The cause is now before this court, pursuant to allowance of a motion to certify the record, on appeal from the judgment of the Court of Appeals which affirmed the judgment of the Common Pleas Court.
Mr. Wm. P. McLain, for appellee.
Mr. William B. Saxbe, attorney general, and Mr. Theodore K. High, for appellant.
The question to be determined may be stated as follows:
Where an appeal from an order of an administrative agency has been duly made to the Common Pleas Court pursuant to Section 119.12, Revised Code, and the agency has not prepared and certified to the court a complete record of the proceedings within twenty days after receipt of the notice of appeal and the court has granted the agency no additional time to do so, must the court, upon motion of the appellant, enter a finding in favor of the appellant and render a judgment for the appellant?
Prior to the 1959 amendment of this statute, it would have been reasonably arguable that the statute was only directory in providing for the certifying of the record of proceedings within a certain number of days (then ten). But see Stephan v. State Veterinary Medicine Board (1960), 113 Ohio App. 538, 173 N.E.2d 389 .
However, that 1959 amendment (128 Ohio Laws, 1116) extended the number of days specified from ten to twenty and added the last two sentences hereinbefore quoted from Section 119.12, Revised Code. Those amendments clearly express a legislative intention that a failure to certify such record within the time now specified must, on motion of the appellant, result in a judgment for the party adversely affected by the order appealed from.
Thus, it is specified that "failure of the agency to comply within the time allowed shall [not "may"], upon motion, cause the court to enter a finding in favor of the party adversely affected" by the order appealed from. The next sentence provides for a possible ten additional days but, in using the words "not to exceed ten," it clearly indicates a legislative intent to limit the power of the court ever to permit an agency to certify its record at a time more than thirty days "after receipt of notice of appeal."
Judgment affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.