Summary
In Hall, the court reasoned that "the proceedings before (the lower) court are but a review of the determination of the board of review"; thus, the trial court is limited to reviewing only what was before the review board when it came to its decision.
Summary of this case from Abrams-Rodkey v. Summit Cty. Children ServOpinion
No. 40885
Decided January 3, 1968.
Appeal — Bill of exceptions — Filing in appellate court not required, when — Bureau of Unemployment Compensation — Appeal to Board of Review — To Common Pleas Court — Transcript of record and proceedings before board — Appeal heard on record.
Neither the provisions of Section 2321.05, Revised Code, nor any other provision of law requires the filing in an appellate court of a bill of exceptions setting forth evidence adduced in the tribunal from whose decision the appeal is taken where: (1) the proceedings before that tribunal constitute, in turn, a review of the determination of the cause by yet another tribunal; and (2) that reviewing tribunal is inhibited by law from considering any other evidence than that adduced before the trial tribunal and that evidence is exemplified in the record of the cause before the reviewing tribunal as provided by law.
APPEAL from the Court of Appeals for Athens County pursuant to an allowance of a motion to certify the record.
The Administrator of the Bureau of Unemployment Compensation allowed unemployment benefits to appellants. American Brake Shoe appealed to the board of review, which, after receiving and considering evidence presented by the opposing parties, reversed the decision of the administrator.
Appellants next appealed to the Common Pleas Court pursuant to paragraph (O) of Section 4141.28, Revised Code, which reads, in part:
"* * * The board upon written demand filed by an appellant shall within thirty days after the filing of such demand file with the clerk a certified transcript of the record of the proceedings before the board pertaining to the decision complained of, and the appeal shall be heard upon such record certified by the board. A bill of exceptions shall not be required. * * *"
Appellants filed no bill of exceptions to the proceedings before the board, but, pursuant to their written demand, the board filed with the Clerk of the Common Pleas Court a certified transcript of the record of the proceedings before it pertaining to the decision appealed from.
The transcript of the docket shows that the filing was made on October 27, 1964, with the notation "Administrator's File filed." An examination of a document bearing, on its cover, the legend, "Administrator's File," which is among the original papers before this court, shows that it contains a copy of the transcript of the evidence adduced and the original papers in this cause before the board, duly certified by the members thereof. It bears the filing stamp of the Clerk of the Common Pleas Court dated October 27, 1964, on its first and last pages. No question is raised by appellees that this document is not, in fact, a certified transcript of the evidence before the board in this cause.
The Common Pleas Court affirmed the decision of the board. The judgment entry of that court recites that "the court, having considered the transcript of the record of the proceedings before the board pertaining to the decision complained of and having considered the briefs submitted by the parties, the oral argument of said parties and the applicable law, finds that the decision of the board of review was not unlawful, unreasonable, nor against the manifest weight of the evidence and that said decision should be affirmed." No complaint is made by appellees that that court, in fact, considered evidence other than that exemplified by the transcript certified by the board as recited in its entry.
On appeal to the Court of Appeals, that court dismissed the appeal without consideration of the merits on the ground that no bill of exceptions to the proceedings before the Court of Common Pleas was presented and allowed by that court and filed in the Court of Appeals pursuant to Section 2321.05, Revised Code.
Messrs. Clayman, Jaffy Taylor, Mr. David Clayman and Mr. Stewart R. Jaffy, for appellants.
Messrs. Alexander, Ebinger, Holschuh Fisher, Mr. John Holschuch and Mr. Samuel Erskine, for appellee, American Brake Shoe Company.
Subsequent to the allowance of the motion to certify in this case, the General Assembly amended Section 4141.28 (O), Revised Code, effective December 31, 1967, so as to resolve conclusively the problem presented by adding the following language to that subparagraph: "provided a bill of exceptions shall not be required at any level of appeal." The "public" interest in the decision of the court below is, therefore, to a large extent, removed. However, we have retained this case on its merits in the exercise of our supervisory jurisdiction of the lower courts which is within the ambit of "public" interest, particularly where the interpretation of a statute governing the conduct of a public agency is at issue.
The Court of Appeals has misconstrued the statutes regulating the proceedings in this kind of case and we are required to reverse its judgment and to remand the cause to it for consideration on the merits as revealed by the record, which includes the transcript certified by the board of review as contained in the document entitled "Administrator's File."
The proposition of law stated in the syllabus not only withstands, but finds support in, an analysis of the controlling statutes.
The Court of Common Pleas is not authorized to try the issues of fact in this kind of proceeding. Pursuant to Section 4141.28 (O), Revised Code, it is limited to finding "that the decision [of the board of review] was unlawful, unreasonable, or against the manifest weight of the evidence," in which event, "it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification, otherwise * * * [it] shall affirm such decision."
In approaching its finding, the Court of Common Pleas is not authorized to receive evidence but "the appeal shall be heard upon such record certified by the board" and "a bill of exceptions shall not be required." Circumscribed as they are by that language of Section 4141.28 (O), Revised Code, the proceedings before that court are but a review of the determination of the board of review in which the "record certified by the board" is the equivalent of "a bill of exceptions setting forth that part of the evidence and such other matters occurring during the progress of the trial * * * not contained in the transcript upon which the appellant asserts his claims of error," as described by Section 2321.05, Revised Code.
By virtue of the statutory command that the board of review "file with the clerk [of the Court of Common Pleas] a certified transcript of the record of the proceedings before the board pertaining to the decision complained of," that transcript becomes an original paper and a part of the record in the cause in the same manner as a bill of exceptions filed in a Court of Appeals becomes an original paper and a part of the record in the Supreme Court, if an appeal is otherwise perfected thereto.
Judgment reversed.
TAFT, C.J., HERBERT and BROWN, JJ., concur.
ZIMMERMAN, MATTHIAS and O'NEILL, JJ., dissent.