Summary
In Hoye v. Schaefer, Recorder (1957), 166 Ohio St. 277, annexation proceedings were filed, and subsequently an incorporation petition.
Summary of this case from Guy v. DunnOpinion
No. 34988
Decided April 17, 1957.
Municipal corporations — Incorporation proceedings — Pending annexation proceeding not ground for enjoining, when — Annexation petition disallowed before injunction action heard.
A proceeding for incorporation may not be enjoined for the reason that, at the time of filing the petition with the Board of Township Trustees and at the time of the election conducted pursuant thereto, there was pending before the Board of County Commissioners a proceeding for annexation of part of the territory sought to be incorporated, where, at the time of hearing and decision of the action for injunction, the annexation proceeding is no longer pending because of a disallowance of the annexation petition by the commissioners.
APPEAL from the Court of Appeals for Franklin County.
On April 5, 1954, a petition for the incorporation of a portion of Franklin Township in Franklin County was filed with the board of trustees of the township. Within 15 days thereafter, as provided for in Section 707.16, Revised Code, an election was held in the township on April 20, 1954, and a majority of those voting approved the incorporation.
Within ten days after the filing of the transcript of the incorporation proceeding with the county recorder, one of the defendants herein, plaintiff filed his petition for injunction in the Court of Common Pleas of Franklin County, as provided for in Section 707.20, Revised Code. Although other reasons for the injunction are alleged, the only one involved in this appeal is that at both the time the petition for incorporation was filed and the time of the election there were pending before the Board of County Commissioners of Franklin County several proceedings for annexation of part of the territory sought to be incorporated.
At the time this injunction action was heard by and finally submitted to the trial court, February 1, 1955, all these annexation proceedings had been disposed of by the county commissioners adversely to the petitioners.
The trial court, relying principally on the first paragraph of the syllabus in State, ex rel. Ferris, v. Shaver, Recorder, 163 Ohio St. 325, 126 N.E.2d 915, held that, since proceedings for annexation were pending before the county commissioners at the time the petition for incorporation was filed, the Board of Township Trustees was without jurisdiction to act on the petition for incorporation.
The Court of Appeals for Franklin County, without written opinion, affirmed the judgment of the Court of Common Pleas, and the cause is before this court upon the allowance of defendant's motion to certify the record.
Messrs. George, Greek, King McMahon and Mr. David A. Johnson, for appellee.
Mr. Thomas W. Applegate and Mr. C. Richard O'Neil, for appellants.
The only difference between the facts of this case and those of the Shaver case, supra, is in the manner of disposition of the annexation petitions. In the Shaver case the commissioners had allowed the annexation, but it was subsequently enjoined. In the instant case, the annexation petitions were disallowed by the commissioners themselves.
This court held in the Shaver case that the granting of the injunction was tantamount to a finding that the annexation proceedings were void from the beginning, and that, since there had been no valid acquisition of jurisdiction by the county commissioners, there was no reason why the recorder should not accept for recording the transcript of the incorporation proceeding.
It is unfortunate, indeed, that the statutory situation is such that proponents of annexation and those of incorporation are required to engage in races to the courthouse; and the chaos and confusion which exist as a result of discrepancies in timing and the parallel jurisdictions of county commissioners and township trustees should undoubtedly be made the subject of careful legislative study.
However, taking the present statutes as we find them, we believe the same rule should apply as well to the case where the annexation proceeding is disposed of by the commissioners themselves as to the case where a court, by injunction, disposes of it.
In this case, at the time the court was called upon to make a decision as to the validity of the incorporation proceeding, there was no jurisdictional impediment to such proceeding. Obviously, had any of the annexation proceedings actually been pending at the time of such decision, or if the commissioners had previously allowed any or all of the annexation petitions, there would have been no basis upon which the incorporation could proceed, and the court would have been justified in granting the injunction. But the township trustees had jurisdiction of the subject matter at the time the incorporation petition was filed and, since, at the time their action was subjected to judicial scrutiny, there were no proceedings for annexation pending before the county commissioners, they are entitled to proceed with such incorporation.
The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for such further considerations as will dispose of the remaining issues.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART and TAFT, JJ., concur.
MATTHIAS and HERBERT, JJ., dissent.