Opinion
No. 34247
Decided May 11, 1955.
Governmental boards and commissions — Power granted to two boards — Acquisition of exclusive authority by board first acting — Dependent on acquisition being valid — Municipal incorporation proceedings — Not rendered void by prior annexation proceedings when — Transcript of record — Duty of county recorder to record — Section 707.19, Revised Code — Mandamus.
1. Where power is given by statute to two different governmental boards to act with reference to the same subject matter, the acquisition of the exclusive authority to act with reference to such subject matter by the board first acting under the power is dependent upon such acquisition being valid. (Paragraph one of the syllabus of Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St. 247, explained.)
2. A municipal incorporation proceeding properly certified by a Board of Township Trustees following an election approving said incorporation is not rendered void by virtue of a prior annexation proceeding covering a portion of the same territory, where such annexation proceeding has been permanently enjoined; and in such situation a writ of mandamus will issue ordering the county recorder to comply with the recording enjoined on him by Section 707.19, Revised Code.
IN MANDAMUS.
This is an action in mandamus originating in this court, wherein the relator, alleging that he is a resident freeholder of Blue Ash in Sycamore Township, Hamilton County, Ohio, and agent for petitioners for incorporation of Blue Ash, seeks a writ requiring the respondent, Recorder of Hamilton County, to record in the public book of records the transcript of the proceeding of the Board of Township Trustees of Sycamore Township, the original petition and the plat, all with reference to the incorporation of the village of Blue Ash.
Respondent filed an answer admitting relator's status as a resident freeholder of Sycamore Township and as agent for petitioners for incorporation. He admits further that on October 7, 1954, there were delivered to him papers purporting to be a certified transcript of the entire proceeding in the incorporation of the village of Blue Ash, together with the recording fee therefor. Respondent then alleges that the purported incorporation of the village of Blue Ash is void ab initio because at the time said incorporation proceeding was adopted there was pending before the Board of County Commissioners of Hamilton County, Ohio, a petition for the annexation to the city of Reading, Ohio, of a portion of the land included in the incorporation proceeding.
Relator filed a reply denying that any of said land was annexed to the city of Reading, and alleging that the annexation proceeding had been permanently enjoined by the Common Pleas Court of Hamilton County.
The cause is now presented to this court on the pleadings and an agreed statement of facts.
Mr. Frank F. Ferris, in propria persona. Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid and Mr. Carl B. Rubin, for respondent.
From the pleadings and the agreed statement of facts appear the following facts:
On September 14, 1954, a petition for an election to incorporate the village of Blue Ash was filed with the Board of Township Trustees of Sycamore Township. An election was held in Sycamore Township on September 30, 1954, in which 982 electors voted in favor of incorporation and 495 voted against it. Thereupon, the board of trustees adopted a resolution declaring the village incorporated, certified a transcript of the incorporation proceeding and delivered the same to the respondent.
On October 9, 1949, there had been presented to the Board of County Commissioners of Hamilton County a petition for annexation of certain property within Sycamore Township to the city of Reading, Ohio, and on March 29, 1950, the Board of County Commissioners allowed said petition. On May 27, 1950, in cause No. A121868 in the Court of Common Pleas of Hamilton County, a temporary restraining order was issued enjoining the annexation proceeding. Said order remained pending until December 2, 1954, at which time it was made permanent.
It is the contention of respondent that, since the Board of County Commissioners had exercised jurisdiction in the annexation proceeding, the Board of Township Trustees had no jurisdiction in the incorporation proceeding and that the latter proceeding is, therefore, void.
This court has held that where power is given by statute to two different governmental boards to act with reference to the same subject matter, exclusive authority to so act is acquired by the board first acting under the power. Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St. 247, 171 N.E. 241. However, such acquisition must be valid. The Court of Common Pleas of Hamilton County when it issued the injunction against the annexation proceeding obviously held such proceeding to be void. Although the annexation was not permanently enjoined until December 2, 1954, such injunction must nevertheless be tantamount to a holding that the annexation proceeding was void from the beginning.
Inasmuch as there was no valid annexation proceeding pending at the time the transcript of incorporation was presented to the respondent, there was no reason for his refusing to perform the ministerial duty of accepting the same for recording.
The writ, therefore, is allowed.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.