Genoa Banking Co v. Mills

Celebrezze, C. J.,

dissenting. I respectfully dissent from the majority opinion and would affirm the judgment of the Court of Appeals.

R. C. 119.01(B) defines license in the following manner:

“ ‘License’ means any license, permit, certificate, commission, or charter issued by any agency.***”

Conspicuous by its absence from R. C. Chapter 1111 is any use of the words license, permit, certificate, commission, or charter.

In Home Sav. & Loan Assn. v. Boesch (1975), 41 Ohio St. 2d 115, 119 , a case dealing with an application for a building and loan association branch office, this court unanimously made the distinction between (1) licensing a building and loan association to commence business, and (2) allowing a building and loan association to expand its business by opening a branch office. As the court specifically ruled, at page 119:

“The superintendent performs a licensing function when he certifies that a building and loan association may commence doing business pursuant to R. C. 1151.03. When he allows an application for a branch office, pursuant to R. C. 1151.05, he allows the association to expand that business in a specific location and no licensing function is involved. The right to commence operations is the subject of the licensing function, and whether the association may operate a branch is ancillary to that right.”

I submit that the similarity of the case at bar to Home Sav. & Loan Assn. v. Boesch, supra, requires us to apply, in this instance, the Boesch rationale. Applying the Boesch ruling to the facts sub judice leads to the conclusion that the already-licensed Bank of Elmore Company, in seeking permission to expand by opening a branch office, is not attempting to secure another license. Therefore, since appellant is attempting to challenge a non-licensing action of the Superintendent of Banks, it has no statutory foundation upon which to construct an appeal.

Accordingly, I believe that both the trial and appellate courts correctly concluded that appellant’s cause was not an appeal of a licensing function.

W. Brown and Locher, JJ., concur in the foregoing dissenting opinion.