Opinion
No. 29125
Decided October 14, 1942.
Board of Barber Examiners — Suspension of certificate of registration — Review by Common Pleas Court — Original action and court to consider proffered competent, material evidence — Sections 1081-18, 12223-3 and 12223-23, General Code.
APPEAL from the Court of Appeals of Mahoning county.
Appellees are barbers who were licensed to practice in the state of Ohio. Charges were preferred against them for the violation of certain sections of the General Code and after a hearing before the state Board of Barber Examiners their certificates of registration were suspended.
Appellees then filed a petition in the Court of Common Pleas seeking a vacation of the order of the board and enjoining the board from taking any steps against appellees.
The trial court affirmed the order of the board, basing its finding and judgment solely on the evidence introduced before the Board of Barber Examiners and refusing to give any consideration to any additional evidence offered by appellees.
The Court of Appeals reversed the judgment of the Court of Common Pleas and the cause is here following the allowance of a motion to certify the record.
Mr. W.M. Howard, for appellees.
Mr. Thomas J. Herbert, attorney general, Mr. Richard A. Morris and Mr. Richard C. Gerken, for appellant.
The sole question before us is whether Section 1081-18, General Code, authorizes an original action or an appeal only on questions of law The trial court held that the statute authorizes an appeal only on questions of law without the right of the plaintiffs below to a trial de novo.
The Court of Appeals held that Section 1081-18 authorizes the bringing of an original action in the Court of Common Pleas.
The question of misjoinder of parties plaintiff is not before us.
We think that a careful reading of Section 1081-18, General Code, requires an affirmance of the judgment of the Court of Appeals. Otherwise, no effect would be given to those parts of the section italicized in the quotation below, to wit:
"Any applicant * * * dissatisfied with the decision of the board * * * in suspending * * * a certificate of registration may commence an action in the Court of Common Pleas against the state Board of Barber Examiners to set aside, vacate or modify any such decision on the ground that the same is unreasonable or unlawful, and said court is hereby vested with exclusive jurisdiction to hear and determine such action. The board shall be served with summons by leaving a copy of the same at its office in the city of Columbus, with answer day fixed as ten days after the service of summons. Upon the filing of an answer, or the expiration of return day, said action shall be deemed to be at issue and shall be advanced and assigned for trial by the court, upon the application of either party, at the earliest possible date."
We find no merit in the claim that a barber aggrieved by any ruling of the state Board of Barber Examiners is limited to an appeal under Section 12223-23, General Code. Even if the proceeding under Section 1081-18 were to be held an appeal instead of an original action, it would come within the exception of Section 12223-3, General Code.
We, therefore, hold that Section 1081-18, General Code, authorizes the bringing of an original action wherein the trial court is required to hear and take into consideration any competent, material evidence proffered by the parties on such hearing.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.