
    BURKHART, d. b. a. CORNER GRILL, Appellants-Appellees, v. DEPARTMENT OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5538.
    Decided August 22, 1956.
    Isadora Topper, Columbus, for appellants-appellees.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
   OPINION

By THE COURT.

This is a motion filed by the appellees herein, Herman J. Burkhart and Gerald L. Weiss, seeking an order dismissing the appeal for the alleged reason that the Court does not have jurisdiction to hear an appeal filed by an administrative agency pursuant to §119.12 R. C., as amended in 1953, which is limited to reviewing the correctness of a judgment of the Court of Common Pleas that an order of an administrative agency is not supported by reliable, probative and substantial evidence in the entire record.

The record reveals that the appellees herein were charged with selling beer to a minor in violation of the provisions of the Liquor Control Act and Regulations of the Board of Liquor Control; that they were found guilty of the charge by the Board and appeal was prosecuted to the Court of Common Pleas which reversed the finding of the Board, the judgment entry reciting,

“Whereupon, the Court being fully advised in the premises and upon due consideration of the entire record finds, that there is no evidence in the record that appellants sold beer to a minor; that the order of the Beard of Liquor Control is not supported by reliable, probative and substantial evidence in the entire record and is not in accordance with law and that the order of the Board of Liquor Control should be reversed.”

The appeal and decision of the Court of Common Pleas did not involve the validity or construction of the statute or rule. The question here presented is whether in the absence of such showing the administrative agency may prosecute this appeal. A similar question was before this Court in the case of Katz v. Department of Liquor Control, being case No. 5434, unreported. Affirmed in 166 Oh St 229. We there held that an administrative agency could not appeal from the Court of Common Pleas to review solely the correctness of a judgment that an order of an administrative agency was not supported by reliable, probative and substantial evidence in the entire record. Although the decision, supra, was by a divided court, we adhere to our former ruling and sustain the motion to dismiss the appeal.

MILLER, PJ, WISEMAN, J, concur.

HORNBECK, J., dissents.  