McKenzie v. Ohio State Racing Commission

Dueeey, J. This is an appeal on questions of law by the Ohio State Racing Commission from a judgment of the Court of Common Pleas of Franklin County in favor of appellee, Michael J. McKenzie. Appellee was charged and found guilty by the commission of two violations of commission rule 321 concerning the paying or offering of bribes to a jockey. An appeal was taken to the Common Pleas Court pursuant to Section 119.12, Revised Code. *285 The notice of appeal was filed on June 26, 1963. On July 12, 1963, the clerk of the court received an envelope containing: (1) A transcript of evidence with exhibits attached, but without any certification or authentication attached to it. (2) Photostatic copy of a letter dated June 13, 1963, to the appellee, notifying him of the commission’s findings and order. (3) A typewritten sheet with the heading “Copied from Minutes of the Ohio State Eacing Commission Meeting held on June 12, 1963,” and containing two paragraphs which state, in essence, that a hearing was held and appellee found guilty and that his license be revoked. No signature or certification appears on this sheet. (4) A paper which reads as follows: “CEETIFICATION “I hereby certify that this is a complete record of the proceedings regarding Michael J, McKenzie before the Ohio State Eacing Commission, and a copy of the final order and decision of said commission. “Items attached hereto are: “1. Transcript of proceedings In the Matter of Michael J. McKenzie, No. 63-4 and the exhibits attached to said transcript. “2. Copy of Letter dated June 13, 1963 advising Michael J. McKenzie of the commission’s decision after hearing. “3. Copy of final order. “Further, any copies of material herein attached are certified to be true copies of the original matter. “By order of the Ohio State Eacing Commission and acting in its behalf. “Harry M. Hoffheimer Harry M. Hoffheimer, Chairman Ohio State Eácing Commission “State of Ohio Hamilton County, ss: . “Sworn to before me and subscribed in my presence this 11th day of July, 1963. “John Paul Curry John Paul Curry Notary Public, State of Ohio.” The appeal was heard by the court on February 1Ó, 1964, and taken under advisement. On March 6, 1964, appellee filed *286 a motion for judgment on the ground that the agency had failed to certify a complete record as required by Section 119.12, Revised Code. The motion was sustained on the ground that the certification was insufficient. The trial court relied upon Allesandro v. Board of Liquor Control (1955), 72 Ohio Law Abs. 528, and Ohio Real Estate Commission v. Evans (1962), 119 Ohio App. 1. The pertinent portion of Section 119.12, Revised Code, provides: “Within twenty days after receipt of notice of appeal from an order in any case wherein a hearing is required by Sections 119.01 to 119.13, inclusive, of the Revised Code, 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. * * *” Appellant contends that the court should have found that appellee waived any objection to the form of the record by submission of the case on its merits. In view of the second sentence of the paragraph, it is our opinion that a motion filed any time prior to the final judgment is timely. See Matash v. State Department of Insurance (1964), 177 Ohio St. 55. Appellant also contends that the record as filed was a sufficient compliance with the statute. We note that copies of original documents have been provided. This would appear proper in the instance of the photostat of the letter of notification, since it is offered as part of the proof of the fact of notification. However, as to original records, notably the minutes of the commission which here constitute the final order itself, the original document must be supplied. The statute requires that the “record” be certified. We see no basis for the substitution of copies for original documents, at least without the consent of the parties. The method of certification used here might also be compared to the provisions of Section 121.20, Revised Code, for the authentication or certification of public records and official papers. The principal issue is the sufficiency of the certification it *287 self. The statute requires that the “agency shall prepare and certify” the record. In Ohio Real Estate Commission v. Evans (1962), 119 Ohio App. 1, this court held that the secretary was not the “agency,” but rather the entire commission itself composed of the three members. On the other hand, the court went on to discuss whether the statute applicable to the Ohio Real Estate Commission (Chapter 4735, Revised Code) provided any authority for the secretary to certify the record. While the court found no such authority, the discussion itself was an implicit recognition that specific statutory provisions applicable to a particular agency might modify the effect of Section 119.12, Revised Code. An example of such a modification is found in the recent case of Tisone v. Bd. of Liquor Control, 1 Ohio App. 2d 126. The court there found that the Director of Liquor Control was granted such authority by provisions of Chapter 4301, Revised Code. We have examined the provisions of Chapter 3769, Revised Code, applying to the Ohio State Racing Commission as they were in effect at the time involved in this case. We find no specific or general authority granted to the chairman with respect to the keeping, preservation or certification of records. Appellant has argued that the statute merely contemplates certification “in the name of the agency by anyone connected therewith who can reasonably be construed to have authority to act in its behalf in such a matter.” Appellant would surely modify this view to require that only a person who attended a hearing and had personal knowledge should be allowed to certify to the testimony and other evidence presented. In any event, the problem in this ease is not whether appellant’s view should be used, but whether the statutes, either in Section 119.12, Revised Code, or in Chapter 3769, Revised Code, permit the chairman of this agency to certify the record. In our opinion, they do not. It might be noted that in this ease the chairman’s certification states that he is acting by order of the commission. However, no such order is found in the record. It would appear arguable that the trial court has authority under the statute to grant additional time not to exceed 10 days from the ruling on the motion. However, the Supreme Court has ruled otherwise. The 10-day period must be com *288 puted with reference to the notice of appeal, i. not more than 30 days in all from receipt of the notice of appeal. Matash v. State Department of Insurance (1964), 177 Ohio St. 55. The failure to fully comply within the 30-day period requires a reversal of the agency’s order, and a judgment for the appellee. The judgment of the Common Pleas Court is affirmed. Judgment affirmed. Troop, J., concurs.