Opinion
No. 34982
Decided April 17, 1957.
State Board of Real Estate Examiners — Hearings — Notice to members — Revocation of broker's license — Number of members necessary to execute authority — Appeal.
APPEAL from the Court of Appeals for Jackson County.
A formal complaint was filed with the State Board of Real Estate Examiners, appellant herein, charging Slavens, a real estate broker, appellee herein, with a violation of Section 6373-42, General Code (Section 4735.18, Revised Code), in that appellee "made misrepresentation and false promises" to complainants in regard to a real estate transaction, for the purpose of inducing complainants to enter into such transaction.
A hearing before the board was commenced on October 26, 1953, at which time one member of the three-member board was not present and only one witness testified. The record is silent as to whether notice of such hearing and an opportunity to be present were given to all three members of the board. By agreement the hearing was continued to November 30, on which day all three members of the board were present and the hearing was concluded. At the latter hearing, a member of the board made the following statement:
"This is a continuation of the case * * *. I would like to state for the record that Mr. Roy Carpenter, a member of the board, was not able to attend the last hearing, and he will not participate in any decision in this case at all. He will just sit in on the hearing."
Subsequent to such hearing, the board issued an order in which it found appellee guilty of violating Section 6373-42, General Code (Section 4735.18, Revised Code), and revoked her license.
The Court of Common Pleas, on appeal from that order, overruled a motion to dismiss the appeal on jurisdictional grounds, found "that the order of the board in regard to ground 5 of the complaint, is supported by reliable, probative and substantial evidence and is in accordance with law," and affirmed the order.
The Court of Appeals, on appeal from the judgment of the Court of Common Pleas, found the order of the board to be void for the reason that, only two members of the three-member board participating, it was without power to act and revoke the license, reversed the judgment of the Court of Common Pleas, rendered final judgment for the appellee, and remanded the cause to the Court of Common Pleas for execution of the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Eubanks Slavens, for appellee.
Mr. C. William O'Neill, Mr. William Saxbe, attorneys general, Mr. Earl N. Merwin and Mr. James F. DeLeone, for appellant.
The issue presented to this court is whether the order of the board revoking appellee's license is void where, at the hearing resulting in such order, only two of the three members of the board were present at the first day of the hearing, only two of the three members present at the second day of the hearing participated therein, the statutory provisions governing the board are silent as to how many members are necessary to constitute a quorum, and the record is silent as to whether notice of the hearing and opportunity to be present were given to all three members of the board.
Where authority has been conferred upon an administrative board consisting of three or more members and where at a particular meeting one or more members of the board are absent, such board, in the absence of statutes to the contrary, may act through a majority of a quorum consisting of a majority of the members, providing all members had notice and an opportunity to be present. Merchant v. North, 10 Ohio St. 251. See State, ex rel. Cline, v. Trustees of Wilkesville Township, 20 Ohio St. 288. If all members were required to be present regardless of notice, one member or a minority of the board by staying away could control the majority.
Where the record does not indicate, as in this case, whether notice was given to all members of the board, notice to all members is presumed and all are regarded as constructively present. Merchant v. North, supra.
The Court of Appeals was in error in holding that the order of the board is void because, only two members of the board participating, it was without power to act, and in failing to review the order of the board on the question of whether the order was supported by reliable, probative and substantial evidence. Section 119.12, Revised Code.
The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals for further proceedings according to law.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.