I find myself unable to concur with the majority of the court and must therefore respectfully dissent. In many respects I regard as adequate the statement of facts contained in the majority opinion. I wish to supplement it rather than to dispute it.
It appears to me that the Ohio State Racing Commission and its member chairman, Harry M. Hoffheimer, at every step in the proceeding, displayed most commendable care in providing full, adequate and timely notice to Michael J. McKenzie well in advance of each step contemplated, and due notice of those taken. Quite obviously, the appeal is not before us on the merits, and on issues related thereto no opinion is expressed.
Subject to the statement just made, it seems to the writer that the steps taken to comply with McKenzie's praecipe were both thorough and complete and appear to me to comply with all applicable statutes and fully to protect McKenzie's rights.
On June 26, 1963, McKenzie's attorney filed a praecipe with the commission "for a transcript of the record" asking that certain items be filed with the Court of Common Pleas of Franklin County "on or before July 16, 1963." Every single item requested was placed in the mail on July 11, 1963, addressed to the Clerk of Courts by certified mail and was received by the clerk and filed on July 12, 1963, four days ahead of the time specified.
Accompanying the items just referred to was a letter of transmittal on the letterhead of the commission, signed by Chairman Hoffheimer, and, in addition, there was a full page certification that the various documents, all of which are specifically described, constitute the "complete record of the proceedings." *Page 289 Further, where copies are included, it is certified that they are "true copies of the original matter."
No objection of any kind to the certification of the record was made in the original presentation to the court. The questions presented related to the five errors assigned. These dealt chiefly with the reasonableness, weight or admissibility of evidence, the alleged vagueness of the commission's rule against bribery, and other undesignated errors.
It is not contended either in this court or in the court below that the commission furnished the complete record too late, for in fact they furnished it several days ahead of the statutory 20-day period. Nor is it argued that there were in fact errors, mistakes or omissions in the transcript of testimony, the attached exhibits, or other papers.
It can not be successfully contended here that the record was not certified as being full and complete. The majority opinion sets forth the certificate signed by Chairman Hoffheimer to that effect. However, it is contended by counsel for McKenzie and upheld by the majority of this court that the chairman was not authorized to sign.
The undisputed record in this case, however, appears to me to be otherwise. The certificate of Chairman Hoffheimer contains the statement that it was executed "By order of the Ohio State Racing Commission and acting in its behalf." The foregoing is a positive assertion under oath by a person whom we are required judicially to notice holds a membership on this commission and is chairman thereof.
Neither in the record nor elsewhere in this case is there a syllable of evidence questioning, disputing or denying this statement of fact made under oath that the commission had made such an order and that it supported the language quoted above. In the majority opinion, it is said that such order is not included in the papers in the case. The writer knows of no requirement that such order be included in the transcript, and we have not been cited to any statute or case requiring such action.
The necessary effect of the holding of the majority in this case seems to the writer to be that the commission lacks the power to make such an order, which is quite different from merely a failure to attach to the record a copy of the commission's *Page 290 order. The writer feels that there are a number of errors in the majority opinion. However, mention will be made here of only a few of them.
1. The provisions of Section 119.12, Revised Code, that "the agency shall prepare and certify to the court a complete record of the proceedings in the case," in my opinion, were fully complied with by the agency. I feel that in the words quoted there is the implication of delivering the record as well as vouching for its completeness.
2. The penalty found in Section 119.12, Revised Code, if the agency fails to act in 20 days, is authorized to be invoked, not on the request of any person or even any party, but only "upon motion" of "the party adversely affected." (Emphasis added.) In my opinion, there is no showing or even a claim that McKenzie was prejudiced or in any way adversely affected.
3. The court below relied on, and the majority opinion apparently cites with approval, the case of Allesandro v.Board of Liquor Control (1955), 72 Ohio Law. Abs. 528. This case is widely misunderstood and simply is not in point here for several reasons. One is that in the third of five opinions inAllesandro, a transcript of testimony certified by a court reporter employed by the Board of Liquor Control was held insufficient. It seems clear that no member of the board had signed or certified this transcript. This was all superseded by the same court in its fourth and fifth decisions when it was discovered in the same case that the parties had stipulated what the evidence was, and the question of the stenographer's certificate simply was not before the court. The best that can be said for Allesandro as to certification of the record is that it is strictly obiter. I also feel that it deals with an entirely different fact situation (a stenographer's certificate).
4. The court below and the majority rely upon the case of theOhio Real Estate Commission v. Evans (1962), 119 Ohio App. 1. This case quotes (on page 6) from Allesandro at some length to the effect that the provisions of the Administrative Procedure Act contain no provisions as to "the manner in which the certification shall be made," followed by the holding that "the same must be governed by the provisions of the Appellate Procedure Act."
No authority is advanced on this point. It is quite clear in *Page 291 Evans that no member of the Ohio Real Estate Commission, chairman or otherwise, signed the record and there was no claim that the commission had adopted an order authorizing the chairman or other member to sign. On the contrary, in Evans, the only signature affixed was that of the secretary of the commission. In course of the opinion in Evans, it is pointed out that even the certificate of the secretary does not state that the record contains all the evidence, the opinion stating at page 6:
"Furthermore, the pseudo certificate of the secretary, if it were valid, nevertheless does not state that the record contains all the evidence. * * *"
This is vastly different from the facts in the case now before us in which it is certified "that this is a complete record of the proceedings" and in which the certificate was signed and sworn to by a member of the commission, as chairman, acting "By order of the Ohio State Racing Commission and acting in its behalf."
5. The majority opinion also relies upon the case ofMatash v. State Department of Insurance (1964), 177 Ohio St. 55. In Matash, the facts are so radically different that they offer no help here. In Matash, although Section 119.12, Revised Code, requires the transcript and complete record to be filed within 20 days "after receipt of notice of appeal," the agency did not file a single paper during the entire 20 days nor was anything filed during the 13 days thereafter. As the Supreme Court was of the opinion that this 20-day requirement was mandatory and there was a total noncompliance during that period, it followed that a reversal was ordered.
For the foregoing reasons, I am of the opinion that the judgment of the court below should be reversed and set aside and the cause remanded for consideration upon the issues specified in the notice of appeal. *Page 292