Summary
In McPherson, the city of Dayton owned airport property outside its corporate limits, so it enacted special ordinances applicable to the airport property pursuant to R.C. 715.50.
Summary of this case from Village of Indian Hill v. EllisOpinion
Nos. 132922, 132937, 132938
Motion decided May 13, 1969. Decision on demurrer July 8, 1969. Decision on merits July 10, 1970.
Annexation, injunction against — Findings required — Summons, motion to quash — Indorsements and affidavit not required on copies — Interested party — Municipal corporation not excluded by R.C. 709.07, 701.01 or 701.02.
1. R.C. 2703.07 requiring that the authority of the person making service of summons be endorsed on the writ refers to the original writ and not the copies.
2. A municipal corporation comes within the meaning of "any person interested" as a party to bring an action for injunction against annexation under R.C. 709.07.
3. The definition of "person" as including a private corporation in R.C. 701.01 and 701.02 does not purport to be an all inclusive and complete listing of what constitutes a person, and it does not necessarily follow that a municipal corporation is not within the meaning of the word "person."
4. The director of finance of a city having no auditor, as a matter of law, is considered to be the same as an auditor within the meaning of R.C. 709.07 (B), to be named as defendant in an action for injunction against annexation.
5. Councilmen of a city which is a real party in interest in an annexation proceeding are also interested parties to the action.
6. Annexation of territory, 90% of which comprised an airport, was unreasonable where it would vitally and adversely affect the legal rights and interests of the owners of the airport and those operating in it.
7. R.C. 709.033(D) makes it mandatory that the court find the territory not unreasonably large and that the general good of the territory sought to be annexed will be served.
8. A county commission resolution used as a basis for granting annexation was erroneous and contrary to law where it failed to make the findings required by R.C. 709.033 (B), (C) and (D).
9. Annexation of a territory is unreasonable where 90% of the area sought to be annexed was developed and available only for airport purposes and not available for the usual development and expansion of the city to which it would be annexed.
10. R.C. 709.07 included within its meaning the word "injunction" as used in R.C. 2727.09.
11. Notice of annexation published in compliance with R.C. 709.031 and then mailed to the township clerk satisfied the notice provision of R.C. 709.03.
12. Where the clerk of the county commisison was directed by resolution to file an annexation petition in the office of the county auditor, it will be presumed that she complied with such direction in the absence of affirmative evidence that she failed to do so.
13. The omission, if any, of filing the annexation petition with the county auditor, was technical only and did not constitute a basis for finding the procedure preliminary to the hearing unlawful.
14. Under R.C. 709.07 (D) (1), the fact that the city desiring to annex a territory has authority to enact legislation which could adversely affect the rights and interests of those owning and operating in the territory, should be taken into account to determine whether annexation would adversely affect those rights and interests.
Mr. James W. Drake, city attorney, and Messrs. Squire, Sanders Dempsey, for plaintiff, city of Dayton.
Messrs. Smith Schnacke, for plaintiff airlines and amici curiae. Mr. Gregory C. Karas, for plaintiff non-airline tenants.
Mr. Alex V. DeMarco, for defendants.
1. Motion to quash service of summons:
This cause comes before the court on the motions of ten defendants herein, appearing specially, excluding the defendant, city of Vandalia, to quash service of summons made upon each of said ten defendants, on the grounds that the court has no jurisdiction over the persons of such defendants for the reason that the person serving the summons on each of said defendants was appointed by the officer to whom said summonses were directed without the authority of the person serving said summonses being endorsed upon the writs served upon defendants.
R.C. 2703.07 requires the following:
"The summons shall be served by the officer to whom it is directed, who must indorse on the original writ the time and manner of service, or by any person not a party to the action, appointed by such officer. The authority of such person shall be indorsed on the writ. When it is served by a person appointed by the officer to whom it is directed, or when the service is made out of the state, the return must be verified by oath."
R.C. 2703.08 reads:
"Service shall be made at any time before the return day, by delivering a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence; * * * The return must be made at the time mentioned in the writ and the time and manner of service shall be stated on the writ."
The evidence shows that one, Joseph W. Stein, was appointed as a special deputy sheriff by Bernard L. Keiter, Sheriff of Montgomery County, on June 13, 1968, for an indefinite term during good behavior, with the right reserved to the sheriff to remove for cause. On the same date Stein was sworn into office by John H. Draves, Deputy Clerk of Courts of Montgomery County. An official special deputy sheriff's bond was supplied for Stein by the Wolverine Insurance Company for the period from January 13 through December 31, 1968. The sheriff of Montgomery County having been reelected in November 1968, reappointed Stein as a special deputy sheriff on January 6, 1969. Further, that on January 6, the Cincinnati Insurance Company filed an official special deputy sheriff's bond for the period from January 6, 1969 to January 5, 1970. That Stein took the oath on February 1, 1968, and defendants filed their motions to quash summons on February 3, 1969.
The facts further show that Bernard L. Keiter, Sheriff of Montgomery County, appointed, empowered and deputized Joseph W. Stein deputy sheriff of Montgomery County on January 21, 1969, to serve the summonses supplied by the clerk upon the defendants named therein, and to make due return of the time and the manner of service, verified by oath. That due to the limitation of space on the appointment, return and affidavit form used by the sheriff and different dates of service, the deputy sheriff typing up the same found it necessary to use altogether four separate forms to cover the service of summons on the ten defendants named in said four forms. That Joseph W. Stein, Special deputy Sheriff, acknowledged the receipt of the various summonses or writs to be served on the ten moving defendants herein by signing the returns at the time of the receipt thereof, the time and date of service being left in blank. That the following defendants were served on January 21, 1969: Robert Snell, Councilman, city of Vandalia, a municipal corporation, J. R. Brammer, Councilman, Ronald Bowell, Councilman, Rodney A. Oakes, Director of Finance, William Shaner, Vice Mayor, Addison W. Patty, Agent for Annexation Petitioners, Richard L. Miller, Mayor, and Robert Riggsby, Councilman; Glenn Bailey, Councilman, was served on January 22, 1969; and William D. McPherson, City Manager and Clerk of the City Council was served on January 27 and/or January 28, 1969. That Bernard L. Keiter, Sheriff, attached his signature to the appointment of Joseph W. Stein, Deputy Sheriff, to serve summonses in this case on four different occasions covering the service of summonses made on January 21, 1969, January 22, 1969, and January 27 and 28, 1969. That the affidavit portion of the appointment, return and affidavit forms used was torn off by the deputy sheriff preparing such forms at the time of the appointment and signature by Joseph W. Stein acknowledging the receipt of the writs, she being under the impression that an affidavit was unnecessary. That shortly prior to February 1, 1969, the civil division office of the sheriff was advised by counsel for plaintiff that the affidavit form at the bottom of the appointment, return and affidavit form should be executed by Joseph W. Stein, pursuant to which Joseph W. Stein was sworn to the affidavit form on February 1, 1969, by Bernard J. Thill, a notary public, which affidavit form stated, "I, Joseph W. Stein, Deputy Sheriff of Montgomery County, Ohio, and the person appointed, empowered and deputized to serve the within summons, do solemnly swear that the foregoing return of service by me made and subscribed is in all respects true and correct and that the service of said summons was made at the time and in the manner therein stated."
The uncontradicted facts show that the defendants named in the return forms signed by Joseph W. Stein did receive the writ or summons together with copies of the petition and the restraining order issued by this court on the dates set forth in the return of summons, said summons being in the form set forth in the photographed copies thereof attached to the motions of the ten moving defendants herein.
It is further uncontradicted that the copies of the summons served on the ten moving defendants had no reference on the face thereof or by any paper attached thereto to the appointment of Joseph W. Stein, Deputy Sheriff, as the person appointed, empowered and deputized to make service upon the ten moving defendants, although the uncontradicted facts show that the written appointment of Joseph W. Stein was made and signed by Bernhard L. Keiter, Sheriff of Montgomery County, and attached by Deputy Sheriff Connelly to the original writ or summons, all of which were placed in an open file on Mrs. Connelly's desk for the public or anyone interested to see and inspect.
With relation to the claim of moving defendants that the court acquired no jurisdiction over the persons of the defendants nor over the subject matter of this suit for the reason that the authority of the person serving the summonses was not endorsed on the copies of the writs or summonses served upon defendants, defendants claim first that Stein was not empowered to make service of the writs or process upon defendants without the sheriff's appointment of Stein to make such services.
The uncontradicted evidence shows that Stein was appointed as a special deputy sheriff for an indefinite period subject to removal for good cause by the Montgomery County Sheriff, on June 13, 1968, and that he was sworn in as such special deputy by John H. Draves, Deputy Clerk of Courts on said date. That bond in the amount of $1,000 was supplied by Stein and the Wolverine Insurance Company and Walter Kramer as sureties for the period through December 31, 1968, and that Stein, after the reelection of Sheriff Keiter, was again appointed a special deputy sheriff on January 6, 1969, and the Cincinnati Insurance Company supplied a $1,000 faithful performance bond effective from January 6, 1969 to January 5, 1970. That Stein took his oath as a special deputy sheriff on February 1, 1969. That since Joseph W. Stein served without compensation from Montgomery County it was necessary for the sheriff to request him to perform special duties prior to the performance thereof. That such request by the Montgomery County Sheriff could have been verbal or in writing. That the practice of the civil division of the sheriff's office was to reduce such requests to writing by the sheriff appointing, empowering and deputizing the special deputy sheriff to perform duties involving the service of summons and other papers upon defendants and persons named in legal proceedings. That any person not a regular or a special deputy sheriff of Montgomery County must necessarily be appointed, empowered and deputized by the sheriff to serve specific papers upon special parties and to make due return thereof under oath. In such latter case the written appointment or authority to make service must, by the provisions of R.C. 2703.07, be endorsed on the original writ or summons. That such specially deputized person, not a deputy sheriff, either regular or special, upon inquiry as to his authority by a person being served would be in a position to state that his authority was in written form in the civil division office of the sheriff, attached to the original writ or summons, or if he had a copy thereof on his person he could display the same.
Stein, like other special deputy sheriffs, was given a deputy sheriff's badge, or shield, to display upon the performance of official duties. That as a practical matter, no typewritten appointment of Joseph W. Stein by the Montgomery County Sheriff to serve the defendants with writs or summonses in this case was necessary to show his authority to make the services because he was in a position to display and he did display to several of the defendants his deputy sheriff's badge as his authority.
That Joseph W. Stein received from the city of Dayton for making the service of summonses, the returns thereon and the affidavits with relation thereto, $7.50 per hour plus ten cents a mile for such services, but since he was serving as a special deputy sheriff, without compensation by Montgomery County, and since the regular fees taxed in this case for such services are due and owing upon collection by the clerk to the office of the Sheriff of Montgomery County without Stein receiving any portion thereof, there is no conflict of interest between Stein's functioning as a special deputy sheriff for Montgomery County and Stein working for an hourly and per mile rate for the city of Dayton.
From the facts hereinbefore recited it is apparent that Joseph W. Stein was a de facto special deputy sheriff from January 6, 1969 to February 1, 1969, when he was given the oath, and that his acts in serving the writs or summonses upon defendants beginning January 21 and ending January 27 or 28 might be sustained on the theory that he had such general authority as a special deputy sheriff, particularly in view of the fact that he took the oath on February 1, 1969, without regard to the special written authorization from the sheriff. However, he was specially appointed, deputized and authorized by the sheriff to make services of summonses upon the moving defendants herein, he did make such services of summonses, he did make returns on each and all of such services and he did take oath before a notary public that he had served summonses upon the persons and at the times and in the manner indicated in the returns of summonses, and that the return of service made by him was in all respects true and correct.
With relation to the second question raised by defendant of whether or not it was necessary to have Stein's appointment by the sheriff attached to or endorsed upon the copies of the writs or summonses served upon the defendants, we are of the opinion that the language of R.C. 2703.07, relative to the duty of the officer to whom summons is directed to endorse on the original writ the time and manner of service, or by any person not a party to the action appointed by such officer, clearly indicates the intention of the Legislature to require the return of the service to be endorsed upon the original writ only. Consequently, the sentence immediately following, to-wit, "The authority of such person shall be endorsed upon the writ" is clearly a reference to the same writ referred to at the beginning of said section as the original writ in the absence of language such as "copy of the."
Counsel for defendants further claim that the language of R.C. 2703.08, requires that the copy of the summons contain all the endorsements thereon at the time of service on defendants, and that the failure to include the appointment of Joseph W. Stein on the summons was a failure to include necessary endorsements thereon as required by said section.
It is clear that the endorsements referred to in said R.C. 2703.08, do not include the endorsements referred to in R.C. 2703.07, which latter is confined to the original writ. The photographed copies of the summonses served upon and received by defendants and attached to the motions of defendants here under consideration, aside from the case number and the stamped date of service set forth a request directed to the sheriff to notify the defendants named thereon at the address or addresses set forth therein of the filing and pendency of this action, and to serve a copy of the petition and the restraining order heretofore issued against them, also requiring them to answer on or before answer day, to-wit, February 24, 1969, and that unless they answer by said date such petition will be taken as true and judgment rendered accordingly. Said summonses contain at the bottom the returnable date of February 3, 1969, and the signature of the deputy clerk acting for the clerk's office. At the left bottom is a stamp stating "A true copy, Bernard L. Keiter, Sheriff, by J. Connelly, Deputy."
The evidence submitted in opposition to the motion of defendants indicates that this type of copies of the original summonses has been in use by the sheriff's office for many years and that in no case has the authority of the special deputy sheriff or a person duly appointed as a special sheriff been endorsed or placed upon, or attached to a copy or copies of summons or summonses served upon defendants in civil cases. Although this long-standing custom does not establish the legality of such practice, the evidence herein fails to show that this practice has ever been questioned, nor can the court recall of any question being raised heretofore.
We know of no case law authority in Ohio that requires that a copy of the written appointment and deputization to serve summons or summonses on a defendant or defendants be attached to or endorsed upon a copy of the original writ or summons served on a defendant.
The case of Simmons v. Simmons, 38 Ohio App. 391, is cited by counsel for defendants as authority for the proposition that the copy of the summons served on defendant should show the authority of the person making service when such person is not a deputy sheriff. However, a careful reading of the case shows that there was no written appointment and deputization attached to or endorsed on the original summons in that case. Since the person making the service was a resident of Cuvahoga County and not of Summit County where the service was made, and since such person was not a deputy sheriff of Summit County, either general or special, it is clear that the action of the appellate court in that case holding that the summons should have been quashed by the trial court was a sound decision, not because the copy did not contain or have attached thereto the appointment by the sheriff of the person making the service, but because there was no appointment or copy of the appointment granting the authority to make service endorsed or attached to the original summons.
The court recognizes the distinction between defective service on the one hand and a defective return of service on the other, and that if the service in fact was good and complies with the law any defect in the return may ordinarily be amended without the issuance of an alias service. Many of the other cases cited by counsel for plaintiff bear upon the elements ordinarily constituting good service, particularly as defined by the case of International Shoe v. Washington, 326 U.S. 310, a United States Supreme Court decision. Also the case of Krabill v. Gibbs, 14 Ohio St.2d 1.
We believe that the summonses and the services thereof comply with the requirements of said two cases, particularly since the Krabill case supra, adopted the standards set forth in the International Shoe case.
The question is raised by defendants whether the appointment forms signed by the sheriff at times subsequent to the initial appointment and after the actual service and return of summonses were properly executed and properly vested authority in Joseph W. Stein to make the services, the returns of which appear beneath the appointment portion of the form.
Since the evidence is clear that Bernard L. Keiter, Sheriff of Montgomery County, signed the original appointment before any copies of the summonses were served on the defendants, and since the space provided for the return portion of the form was insufficient to contain the names and addresses of the defendants, together with the time of service, and further, since the services and copies of the summonses were made on three or four different dates, — January 21, 22 and 27 and/or 28, the execution subsequently of three duplicate appointment forms by the sheriff became necessary so there would be sufficient space for Joseph W. Stein to make returns of his services by having the same typed on the return portion of the forms by Deputy Sheriff Connelly.
Under such circumstances, the appointments of Joseph W. Stein on four separate appointment forms all related back to the original appointment form signed by the sheriff, and consequently all were dated January 21, 1969, as was the original.
Consequently, we are of the opinion that the services of the copies of the summonses on the ten moving defendants in this case were valid services made by a de facto special deputy sheriff who had the authority to make the same by special written deputization, and that Stein made oath to the services and the return thereof in full compliance with R.C. 2703.07.
Such being the facts and the law, we see no necessity to amend any of the copies of the summonses served, nor any of the returns thereof.
The court, therefore, after thorough consideration of the facts and the law bearing upon defendants' motions herein, finds that such motions to quash service of summons are not well taken, and the same should be and hereby are overruled.
Motion overruled.
2. Hearing on demurrer:
MARTIN, J. This cause comes before the court on the demurrer of the defendants, William D. McPherson and Addison W. Patty, to plaintiff's petition herein on the ground that it does not state facts which show a cause of action.
This cause also comes before the court on the demurrer of defendants, Oakes, Miller, Shaner, Riggsby, Snell, Brammer, Bailey and Bowell on the ground that plaintiff's petition does not state facts which show a cause of action.
The latter demurrer of Oakes, et al., is the first ground of the two grounds of the demurrer, the second of which will be disposed of hereinafter by this court.
Both sets of separately demurring defendants claim through counsel that the city of Dayton does not have the capacity to bring this action for the reason that it is not an "interested party" within the meaning of R.C. 709.07, 701.01 and 1.02.
R.C. 709.07, titled "Injunction against annexation," paragraph (A), reads in its pertinent parts as follows:
"Within sixty days from the filing of the papers relating to the annexation * * * any person interested may make application by a petition to the court of common pleas praying for an injunction" * * *. (Emphasis added.)
R.C. 701.01, titled "Definitions," consisting of paragraphs (A), (B), (C), (D), (E), (F), and (G), in its pertinent parts reads as follows:
"In the interpretation of Title VII of the Revised Code, unless the context shows that another meaning was intended:
"(A) `Person' includes a private corporation." * * *
R.C. 1.02, titled "General Definitions" and consisting of the definition of nine words or terms, reads in its pertinent parts as follows:
"As used in the Revised Code, unless the context otherwise requires
"(B) `Person' includes a private corporation" * * *.
The separately demurring defendants contend that since the word "person" is defined in R.C. 701.01 and 1.02, as including a private corporation, that by necessary implication a municipal or public corporation is excluded, and that the legal maxim, "Expressio unius est exclusio alterius" applies as a rule of statutory construction to determine who or what entities constitute "any interested person." Demurring defendants, in support of their claim that a municipal corporation has no legal capacity to file an action to enjoin another municipal corporation from annexing territory, cites the following cases:
Grandview Heights v. Redick, 79 Ohio Law Abs. 63; City of Cincinnati v. Rost, Reitz v. Morr, 92 Ohio App. 8.
A careful reading by this court of the above quoted portions of R.C. 709.07, discloses that the word "any," as used in connection with "any person interested," suggests that any and all interested persons who or which might own property and/or reside in, or do business in property affected by the annexation, are included within the meaning of such word. Further, the definitions quoted from R.C. 701.01 and 1.02, are both qualified in the introductory paragraphs of said sections by the words "unless the context shows that another meaning was intended" and "unless the context otherwise requires." The last paragraph of R.C. 701.01, to-wit, "This enumeration does not require a strict construction of any other words in such title," implies that somewhat more liberal rules of statutory construction should be applied.
The definition of "person" as including a private corporation in R.C. 701.01 and 1.02, does not purport to be an all-inclusive and complete listing of who and what constitutes a person, but merely refers to one entity, namely, a private corporation as being included within the meaning of the word "person." Such being the case, it does not necessarily follow that a municipal corporation is not within the meaning of the word "person," particularly if the language of pertinent statutory requirements and (context) provisions shows that it was intended to be included.
With relation to the cases of Grandview Heights v. Redick and Cincinnati v. Rost, etc., supra, cited by defendants in support of their demurrers, we are of the opinion that neither case is directly in point with the case at bar. However, the court in the Redick case recognized the principle that who is and who is not a person entitled to invoke the protection of R.C. 709.07, must depend upon the context and purposes of the statute. The Cincinnati case had to do with the question of municipal incorporation and not annexation. Obviously, a contiguous municipal corporation could not be a person interested in the issue of whether or not the adjoining territory should be incorporated or not incorporated.
Although the Supreme Court of Ohio has not yet ruled on the question of whether a municipal corporation that owns a valuable and extensive property outside of its corporate limits, such as plaintiff's ownership of its airport involved herein, is an interested person within the meaning of R.C. 709.07, it is strongly suggested in a unanimous opinion in the case of State, ex rel. Hannan, v. DcCourcy, 18 Ohio St.2d 73, that Cincinnati as "an interested person" in such case, would, in event certain procedure was first followed, be able to resort to the provisions of R.C. 709.07 "claiming that its legal rights or interests were adversely affected by the annexation of relators' territory to Madeira." A landowner, a private corporation, a nonresident contract purchaser of land, all owning land within the territory to be annexed have been held to be persons interested within the meaning of R.C. 709.07.
Hicks v. Cane, 78 Ohio Law Abs. 566; Mariemont, Inc., v. Cain, Case No. 196409, Franklin County Common Pleas Court; Watson v. Doolittle, 10 Ohio App.2d 143; 21 Ohio State Law Journal, 364, at p. 380.
Furthermore, there is some case law authority to support the view that the ownership of an airport by a municipal corporation is a proprietary or private function derived from special statutory authority to acquire, develop and maintain airports outside its corporate limits. Blue Ash v. Cincinnati, 173 Ohio St. 345, 348; Zangerle v. Cleveland, 145 Ohio St. 347, 355 (dictum).
A number of Ohio cases have stated that a municipal corporation acting in its proprietary capacity stands before the law on the same footing and is entitled to the same constitutional protection as a private corporation. Western College v. Cleveland, 12 Ohio St. 375, 377; Cleveland v. Clement Bros. Const. Co., 67 Ohio St. 197; State, ex rel. Forchheimer, v. LeBlond, 108 Ohio St. 41, 42, Syll. 7; State, ex rel. White, v. Cleveland, 125 Ohio St. 230, Syll. 1; State v. Akron, 84 Ohio Law Abs. 385.
R.C. 717.01 (V) and R.C. 719.01 (O), give municipal corporations very extensive authority to appropriate, purchase, acquire by gift and lease real estate within or without their corporate limits to establish, construct, enlarge, improve, equip, maintain and operate airports, landing fields or other air navigation facilities. R.C. 4561.06 has established the Division of Aviation for Ohio to encourage the proper development of aviation within the state.
It would seem, in view of such enactments, that the Legislature did not intend by enacting R.C. 701.01 and R.C. 1.02, to restrict the rights of municipal corporations to protect their property interests in their airports.
Courts of other states have recognized the rights of municipal corporations to protect themselves as persons aggrieved against annexation proceedings. Denver v. Miller, 329 P.2d 169; Elkins v. Denver, 402 P.2d 617; Bronxville v. Francis, 134 N.Y. State 2d 59; Little Falls v. State, 190 N. Y. State 2d 807.
With relation to the second branch of the demurrer of defendants, Oakes, Miller, Shanner, etc., in which defendants claim that they are not persons authorized by R.C. 709.07 (B) to be named and sued as party defendants, for the reason that none of them is the auditor or clerk of the city of Vandalia, the persons authorized to be joined as parties defendant in paragraph (B) of R.C. 709.07, it is true that the auditor or clerk of the municipal corporation to which annexation is proposed, and the agent of the petitioners for the annexation are the only persons required to be named as necessary parties defendant in R.C. 709.07. Defendant, McPherson, is the clerk of Vandalia and Patty is the agent of the petitioners for annexation, both of whom have been joined as parties defendant herein. Rodnay A. Oakes is director of finance of the city of Vandalia, Vandalia having no auditor, and as a matter of law, is considered to be the same as an auditor within the meaning of R.C. 709.07 (B). See Toll v. Schaeffer, 113 Ohio App. 221.
Consequently, the three necessary parties defendant named in R.C. 709.07(B) have been joined as parties herein.
The remaining parties defendant, all councilmen of the city of Vandalia, which is the real party in interest, are directly concerned as councilmen as their function in such capacity might relate to annexation. They are therefore parties interested in the annexation question in issue in this case, and are proper parties defendant herein.
The court, therefore, overrules the demurrer of defendants, McPherson and Patty, and also overrules both the first and second grounds of the demurrer of defendants, Oakes, Miller, Shaner, Riggsby, Snell, Brammer, Bowell and Bailey.
This decision shall operate as an entry and order of the court.
3. Decision on Merits: Preliminary Statement and Findings
MARTIN, J. Plaintiff, city of Dayton, owner and administrator of the James M. Cox Dayton Municipal Airport, five principal airline plaintiffs using and occupying said airport, and seventeen airport non-airline tenant plaintiffs, in cases Nos. 132922, 132937 and 132938 respectively, bring these three actions, consolidated for trial, against defendants, the city manager and also city council clerk of Vandalia, its director of finance, the agent for annexation of petitioners, seven members of the Vandalia city council, including the mayor and vice mayor, and the city of Vandalia, to restrain and enjoin William D. McPherson, as clerk of the city council, and any other defendant or person in possession of the annexation transcript, petition and map delivered to McPherson as clerk on November 26, 1968, by the Montgomery County Commissioners, — from laying before or reporting to the Vandalia city council such transcript, petition and map, to restrain defendants, city council members from taking any action or any proceedings relating to such proposed annexation, pending a final hearing and determination of the issues involved in the three cases, and upon final hearing to permanently enjoin defendant clerk, finance director and any other defendant or person from laying the transcript, etc., before the city council and to enjoin the defendant members of said body from taking any legislative action.
The court issued temporary restraining orders on January 21, 1969, in case No. 132922 and on January 23 in cases Nos. 132937 and 132938, and service of said orders, together with summonses and copies of the petitions upon the defendants in said three cases, was made in accordance with law, as determined by this court's decision of May 14, 1969, overruling the motions of defendants to quash service of summons.
In this connection the evidence shows that defendant McPherson, as clerk, was served with summons and the restraining order on January 27, 1969, late in the day, although he was bound by such order as he received actual notice thereof prior to the date of service, as will be hereinafter discussed.
Furthermore, this court determined by decision of July 9, 1969, on the several demurrers of defendants that the city of Dayton, plaintiff in case No. 132922, was "a person interested" within the meaning of R.C. 709.07, and had the legal capacity to sue in said case. The court further decided that the defendants other than the clerk, finance director and agent for the petitioners were proper parties defendant in the three consolidated cases.
General Claims of the Parties Plaintiffs' Claims:
Plaintiffs in the three cases tried to the court on the merits claim in their petitions and evidence that the proposed annexation will adversely affect their legal rights and interests in that it will interfere with the adequate governmental services now being provided the airport, will interfere with and impair safe, efficient, and economical air transportation, will result in the imposition of substantial taxes, fees and charges without reciprocal benefits, and will not serve the general good of the airport territory to be annexed. Plaintiffs further claim that there was error in the proceedings before the board of county commissioners, that the decision of said board was unreasonable or unlawful, that R.C. 709.02, 709.032 and 709.033, enacted 12-1-67, and in effect when the annexation proceedings herein were initiated, and the provisions of which then governed, are unconstitutional and void by U.S. Supreme Court decision of June 16, 1969, and pursuant to which R.C. 709.02, 709.032 and 709.033 were amended November 21, 1969, that the attempt to lay the annexation transcript and petition before the Vandalia council was void and of no legal effect, and that the transcript and petition have never been properly laid before the Vandalia city council. Plaintiffs pray for a permanent injunction against the annexation.
Defendants' Claims:
The defendants filed general denials in each of the three cases, specifically denying each and every allegation contained in the three petitions filed in said cases, and denying that plaintiffs are entitled to permanent injunctions, thereby placing the burden on plaintiffs to prove their cases.
Defendants contend that many of the adverse effects claimed by plaintiffs are based upon a supposed or assumed series of future governmental actions by Vandalia following annexation which will not necessarily occur.
Defendants introduced no sworn testimony showing or tending to prove that the general good of the airport would be served by the annexation, although a signed but unsworn letter, plaintiffs' exhibit 8, from defendant city manager to Dayton's manager, listed alleged benefits to the airport through annexation, under the headings of utilities, street maintenance, street construction and development, zoning, fire protection, traffic regulation, inspection services, police protection, dispatching and communication services, and legislative capacity.
Stipulations:
Plaintiffs and defendants in said three cases stipulate and agree that plaintiff and defendant cities are municipal corporations and that Dayton is the owner of property comprising the James M. Cox Dayton Municipal Airport; that twenty of the twnety-two airline and tenant plaintiffs are corporations authorized and licensed to do business in Ohio; that plaintiff tenants, Dayton Airport Inn and Ben A. Lee, d. b. a. Val Enterprises, are a partnership and proprietorship respectively doing business in the airport; that defendant, William D. McPherson, is the duly appointed, qualified and acting city manager and is also clerk of the city council of Vandalia. That defendant, Rodney A. Oakes is the duly appointed, qualified and acting director of finance of Vandalia; that defendant, Addison W. Patty, is the agent for the annexation petitioners; that defendants, Richard R. Miller, mayor, William Shaner, vice mayor, Robert Riggsby, Robert Snell, J. R. Brammer, Glenn Bailey and Ronald Bowell, are all the duly elected, qualified and acting members of the city council of Vandalia; that the annexation petition and a certified transcript of the annexation proceedings before the board of county commissioners, with the accompanying map, were delivered on November 26, 1968, to the defendant, William D. McPherson, as clerk of the city council of Vandalia.
Undisputed Facts:
The undisputed facts show that on July 30, 1968, fourteen persons representing themselves to be all, and therefore a majority of the adult freeholders residing in the territory sought to be annexed, signed and addressed a petition to the commissioners praying for annexation to the city of Vandalia, Ohio, of the 1,460 acre area described therein, consisting of about 1,316 acres (57 tracts) of the airport and 144 additional acres (26 tracts) privately owned by individuals and corporations. That one petitioner owned a tract outside the annexation area reducing the number of petitioners to thirteen, the number of privately owned tracts from twenty-seven to twenty-six, and the number of tracts owned by petitioners from thirteen to twelve, comprising seven properties.
The annexation petition, together with the legal description and the map of the area proposed to be annexed, was filed July 30, 1968, with the commissioners and accepted by them for further proceedings on August 6. After the required publication was completed, there was a hearing on such petition on October 8, 1968; that thereafter said commissioners entered an order on November 19, 1968, allowing the annexation of such territory. The certified transcript of the proceedings, plaintiffs' exhibit 10, before said commissioners with the petition and the accompanying map, were on November 26, 1968, filed with defendant, William D. McPherson, as clerk of the city council of Vandalia, who, sixty-two days thereafter, on January 27, 1969, attempted to lay the transcript, etc., before the Vandalia city council for acceptance or rejection of the annexation allowed by the commission.
Clerk Chargeable With Notice:
With relation to whether or not Vandalia's clerk, McPherson, was chargeable with notice of the restraining order as if he had been served within the meaning of R.C. 2727.09, before he attempted to lay the annexation transcript petition and map before the Vandalia council on January 27, 1969, at 7:30 a. m., the evidence shows that he received notice of the subject matter of the restraining order in a telephone conversation with his secretary on January 21, 1969, while he was in Columbus, Ohio, and again on January 27 in a conversation with two members of the city council within the hour before the recessed meeting called for 7:30 a. m. began.
Counsel for defendants contends that R.C. 709.07, which controls the proceeding, does not include within its meaning the word "injunction" as used in R.C. 2727.09, and that the language of R.C. 709.07, to-wit, "Served upon the auditor or clerk" required regular service of summons and the restraining order on McPherson to legally bind him by the restraining order. This contention is refuted by the language of R.C. 709.07 and 709.04, which use the words "praying for an injunction restraining the auditor or clerk" and "a temporary injunction," respectively.
It follows that the pertinent language of R.C. 2727.09 to-wit, "An injunction binds a party from the time he has notice thereof, and the bond required of the applicant therefor is executed," is fully applicable to the notice McPherson received as clerk from his secretary and council members, as the bond of $25.00 in the Dayton case was executed and deposited with the clerk January 21, 1969, and the bonds of $25.00 each in the airlines and tenants cases on January 23, 1969.
Furthermore, such recessed meeting was not the next regular meeting or session of the council (each member of which had been served with restraining orders before January 27, 1969), after the lapse of sixty days as required by R.C. 709.04, as such regular session was mandatorily fixed by Vandalia ordinance No. 111.01 on the first Monday of February, to-wit, February 3, at 7:30 p. m.
It follows that McPherson as city council clerk was chargeable with notice of the restraining order, which he was bound to obey, and even if he had received no notice thereof, his effort to lay the transcript and map before the city council at the January 27 recessed session and not the next regular session was of no legal force and effect, particularly since every council member had been theretofore served with the restraining order. Furthermore, McPherson, as clerk, was served with the restraining order, summons and the petition on January 27, 1969, after the recessed meeting of the council, and no further effort has been made by him to lay the transcript before the council since said date.
It follows that this court had and still has, without any doubt, jurisdiction of the subject matter and of the defendants, including McPherson as clerk, and that the temporary injunction and restraining order is still in full force and effect.
History of Airport and Vandalia:
The James M. Cox Dayton Municipal Airport, referred to hereafter as the airport, located entirely in unincorporated territory within Butler township, Montgomery County, and owned by the city of Dayton, was originally established on less than four hundred acres in 1936 and consists today of twenty-nine hundred acres (plus four hundred acres recently added), with complete commercial and general aviation facilities.
Airlines, non-airline tenants, federal government agencies and the city of Dayton employ more than one thousand persons at the airport. Commercial passenger and freight transportation service is provided by the five airline plaintiffs and other regional airlines. Single plane service is provided to major metropolitan areas throughout the continental United States. In 1968 the airport ranked 37 in respect to passenger arrivals and departures (1,348,512), and 18 in air freight (18,764.76 tons) among U.S. airports.
The portion of the airport sought to be annexed by Vandalia, to-wit, about 1316 acres, includes the terminal building and in general all the operational and revenue producing areas, including all commercial and general aviation facilities and all airport structures, among which is the terminal building and tower, the 160 unit airport motel just completed, all parking, auto rental, taxicab facilities, cargo storage and fuel storage areas, primary and secondary runway construction, including a portion of the new 9,500 foot concrete runway accommodating 300 to 500-passenger Boeing 747s and other large aircraft. Approximately 1,600 acres of airport land (now 2,000), largely unimproved and used in part for runway purposes, are not within the annexation area.
The airport is administered by a department of aviation, one of the departments of the Dayton city government, with supporting services from the city departments of police, fire, service and buildings, water and finance. The city of Dayton is empowered to acquire, maintain, operate, improve and enlarge the airport outside Dayton corporate limits by R.C. 717.01 (V) and is authorized by R.C. 715.50 to enact and enforce necessary police and sanitary regulations for the protection of the airport, including the prosecution of violations in the Dayton Municipal Court.
It is further authorized to appropriate and has appropriated property for airport purposes, with power to impose restrictions thereon, outside its corporate limits without limitation (beyond county lines) by R.C. 719.01 (O).
In addition, the airport was authorized by R.C. 4561.09, to receive federal grants in aid under which Dayton has already received about $4,500,000 toward the construction, enlargement, improvement and operation of the airport.
The city of Dayton, through its general credit base of receipts from its taxpayers and through airport receipts has underwritten issues of general obligation bonds and notes, of which there was outstanding as of September 17, 1969, approximately $13,433,000.00 theretofore issued to provide for the equipping, enlarging and improving the airport, the debt service on which, including principal and interest, will amount to about $1,000,000 per year in 1971, and which will be increased by revenue bond issues in the next several years of from ten to thirteen million dollars. In addition, Dayton has expended over a period of years $875,000 out of its general fund to meet deficits in its airport operation. That approximately $25,000,000 has been invested in airport facilities and the assets of the airport as of 1968 were approximately $20,000,000. That the projected plan of development, construction and growth of the airport will require the expenditure of many millions of dollars in the future not now represented by bonded indebtedness or federal grants in aid.
The city of Vandalia, founded in 1838, was incorporated as a village in 1848. The National and Dixie Highways intersect within the corporate limits of Vandalia, which became a city in 1960. Vandalia has steadily increased in population, and in industrial, commercial and residential development until in 1968 it had an estimated population of about 10,000 persons. That the 1968 comprehensive development plan (defendants' exhibit G), authorized by the community assistance division of the federal department of housing and urban development showed the total area of Vandalia to be 6.07 square miles, or 3,886 acres. Of such acreage 61.6% was undeveloped land and 38.4% consisted of residential, public, semi-public, industrial and business development, plus streets, alleys, and the flood plain of the Great Miami River. Otherwise stated, there are 2,394.23 acres of undeveloped land and 1,491.77 acres of developed land. In 1968 of the total incorporated area, 3,150.77 acres were zoned, and 735 acres unzoned. That because the rate of growth of Vandalia exceeds that of other urban communities in Montgomery County and the growth averages of the state of Ohio and the United States, it will be necessary for Vandalia to zone and develop its undeveloped land within its corporate limits, and to annex, or through other procedures, acquire about 2,500 additional acres by 1985. That there is approximately 12,000 to 13,000 acres of land in the greater Vandalia-Butler township area available for expansion.
General Findings:
Since this court has no doubt whatsoever from the evidence and the applicable law as to what findings should be made on the merits, it would be unfair to leave any inference to the contrary by deferring its general finding to the end of this decision.
Therefore, after intensive and extensive consideration of the evidence and the applicable law, the court finds that the plaintiffs in the three consolidated cases have proven by clear and convincing evidence that they are entitled to a permanent injunction prohibiting defendants and each and all of them from completing or attempting to complete the annexation of the proposed area by defendant clerk, finance director or any other defendant or person by laying or attempting to lay before defendant council members the transcript of commission proceedings, the annexation petition and the map for the purpose of having the Vandalia city council take legislative action thereon, and enjoining and prohibiting each and every individual defendant councilman from taking any legislative action by accepting or purporting to accept the annexation of the proposed area.
Proof Required of Plaintiffs in Injunction Proceedings:
The pertinent provisions of R.C. 709.07, effective 12-1-67, and controlling the annexation procedure and proof in this case, reads as follows:
"Injunction against annexation.
"(A) Within sixty days from the filing of the papers relating to the annexation with the auditor or clerk as provided by R.C. 709.033, any person interested may make application by petition to the court of common pleas praying for an injunction restraining the auditor or clerk from presenting the annexation petition and other papers to the legislative authority. The petition shall set forth facts showing:
"(1) How the proposed annexation adversely affects the legal rights or interests of the petitioner;
"(2) The nature of the error in the proceedings before the board of county commissioners pursuant to R.C. 709.032 or 709.033, or how the findings of the board are unreasonable or unlawful. * * *
"(D) The petition for injunction shall be dismissed unless the court finds the petitioner has shown all of the following by clear and convincing evidence:
"(1) The annexation would adversely affect the legal rights or interests of the petitioner;
"(2) There was error in the proceedings before the board of county commissioners pursuant to R.C. 709.032 or 709.033, or that the board's decision was unreasonable or unlawful." * * *
Plaintiffs to make out a case are required to prove the elements set forth in paragraphs A(1), (2) and D(1) and (2) of R.C. 709.07, by clear and convincing evidence, first, that the annexation of the proposed 1,460 acre tract would adversely affect the legal rights and interests of plaintiffs; second, that there was error in the proceedings before the commissioners in that they made no findings as to procedure required by R.C. 709.033, par. (B) and (C), and furthermore, made no findings as to the substantive matter referred to in para. (D), namely that the territory included in the annexation petition is not unreasonably large, that the plat or map is accurate, and in addition and more importantly, that the general good of the territory sought to be annexed will be served if the annexation petition is granted.
Deferring discussion of plaintiffs' claim that the annexation would adversely affect plaintiffs' legal rights and interests until later in this decision, we will review first the proceedings before the commission in a somewhat chronological order to determine whether they were erroneous either in a procedural or substantive sense, and/or whether the decision of the commission is unreasonable or unlawful.
Proof and Findings Required in Commission Hearing:
With relation to the provisions of R.C. 709.07 D(2), plaintiffs are required to prove by clear and convincing evidence that there was prejudicial error in the commission proceedings governed by R.C. 709.033, or that the decision of the county commission was unreasonable, or was unlawful. Only one of the three elements of proof is required.
Since plaintiffs claim that the county commission failed to make the findings required by R.C. 709.033, it is necessary that the pertinent parts of said section and of the resolution of the county commission granting annexation be set forth. R.C. 709.033 reads in part:
"After the hearing on a petition to annex, the board of county commissioners shall enter an order upon its journal allowing the annexation if it finds that:
"(A) The petition contains all matter required in R.C. 709.02.
"(B) Notice has been published as required by R.C. 709.031 ( 709.03.1).
"(C) The persons whose names are subscribed to the petition are adult freeholders residing in the territory in the petition, and as of the time the petition was filed with the board of county commissioners the number of valid signatures on the petition constituted a majority of the adult freeholders residing in the territory proposed to be annexed, * * *
"(D) The territory included in the annexation petition is not unreasonably large; the map or plat is accurate; and the general good of the territory sought to be annexed will be served if the annexation petition is granted."
Resolution No. 2204 (Nov. 19, 1968), reads in part:
"WHEREAS, Mr. Paul Fleischauer, Assistant Prosecuting Attorney, stated that the petition for annexation was in proper legal form; and
"WHEREAS, Commissioner John C. Smith stated that in view of the decision of the Assistant Prosecuting Attorney, he didn't feel that the Commissioners had any way to act except to honor the wishes of the majority of the petitioners who signed for annexation.
"NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Montgomery County, Ohio, that it is hereby ordered that the prayer of said petition be granted * * * and that the territory to be annexed * * * and further described in said petition may be annexed to the city of Vandalia, Ohio, in accordance with law * * *."
Procedural Errors Claimed:
Plaintiffs claim that the action of the commission in hearing and considering the petition for annexation was unlawful and erroneous in that defendant, Addison W. Patty, as agent for the annexation petitioners, failed to cause written notice of the filing of the annexation petition with the commissioners and the date thereof to be delivered to the clerk of Butler township within which the territory sought to be annexed is located, in violation of R.C. 709.03.
Plaintiffs further claim that the annexation petition was not filed with the Montgomery County Auditor's Office and was not therefore subject to inspection by any interested person, as required by said R.C. 709.03.
There is nothing in the transcript to show that the clerk of the commission filed the petition and map in the office of the county auditor for public inspection, although she was directed by resolution No. 1566, adopted by the commissioners August 6, 1968, to do so. Nor does the transcript disclose that the petitioners' agent gave independent written notice of the filing and date of the filing of the petition to the clerks of Vandalia and Butler townships, as required by said R.C. 709.03, although the notice required to be published for four consecutive weeks by R.C. 709.031 and R.C. 709.033 (B), and which was published, did contain notice of the filing and the date thereof in conjunction with the other matter referred to in the published notice, copies of which notice were mailed to the clerks of Vandalia and Butler townships.
Since both notices were combined in the one published notice copies of which were delivered to the designated clerks, the notice provisions of both R.C. 709.03 and 709.031, were substantially complied with.
Since the clerk of the commission was directed by resolution No. 1566, dated August 6, 1968, to file the annexation petition in the office of the county auditor, for public inspection, it will be presumed that she complied with such direction, in the absence of affirmative evidence that she failed to do so.
Neither of these two alleged omissions on the part of the petitioners' agent or the clerk of the commission was prejudicial to the plaintiffs in the three cases.
The court therefore finds that such omissions, if any, were technical only, and do not constitute the basis of a finding by the court that such procedure preliminary to the hearing before the commissioners was erroneous or unlawful.
Plaintiffs further claim that the action of the commission granting annexation was not only erroneous, but was unlawful and unreasonable in that such action was not based on the criteria prescribed by R.C. 709.033 (D), but rather on an erroneous conclusion that if the petition for annexation was in proper legal form, as they were advised by the assistant prosecuting attorney (which was true as of November 19, 1968, when they granted annexation), that they were then required to approve the annexation by honoring the wishes of the majority of the adult resident freeholders who signed the petition, without regard to the findings required by R.C. 709.033.
Defendants, by counsel, claim that the decision of the board of county commissioners set forth in Resolution No. 2204, adopted November 18, 1968, was more in the nature of a political than a quasi-judicial decision based upon prior usage and custom under statutes, some of which have been in force and effect for many years prior to December 1, 1967, when the sections involved herein became effective, which decision, as in the past, was greatly influenced by the fact that the county commission was given a wide latitude in the exercise of its discretion, which, no doubt, was greatly influenced by the fact that all, or a great majority of the adult freeholders residing in the territory sought to be annexed had requested the annexation by signing the petition therefor. Consequently, the commission thought it "right" to grant the same.
Counsel for defendants further claims that there is a presumption that the commission made the findings required by R.C. 709.03, par. (A), (B), (C) and (D), as a condition precedent to granting the annexation, even though such findings are not specifically set forth in the resolution.
Commission Findings:
Even though it be conceded that the commission made informal findings in Resolution No. 2204 on November 19, 1968, and that paragraphs (A) and (C) of R.C. 709.033, were complied with, the commission failed to make findings as to the publication of notice required by R.C. 709.033 (B), but more importantly, plaintiffs claim that the commission did not make any of the substantive findings required by R.C. 709.033 (D) as conditions precedent to allowing annexation, to the effect that the territory included in the annexation petition is not unreasonably large; that the map or plat is accurate; and most important, that the general good of such territory will be served if the annexation petition is granted.
With relation to the size of the area, plaintiffs contend that annexation of the 1,460 acres to Vandalia would increase the corporate area of such city by 38% from 3,886 acres (defendants' exhibit G) to 5,346 acres, and would impose on Vandalia responsibility for providing governmental services to plaintiffs' airport, which required services are and will be well beyond the ability and capacity of Vandalia to furnish now or in the foreseeable future.
Defendants, on the contrary, assert that Vandalia's governmental and administrative services are adequate to meet the needs and serve the general good of the airport and the acreage adjacent thereto in the annexation area, and that the area of 1,460 acres proposed for annexation was not unreasonably large. Conceded, the acreage, per se, of the area to be annexed perhaps would not have been unreasonably large, had it been unimproved open country needed for municipal expansion and development within Vandalia's development capacity. However, the airport land and facilities developed to serve the highly specialized requirements of air passenger and freight transportation, together with related uses, now efficiently operated and adequately supplied with all necessary governmental services, was not susceptible to growth and development by Vandalia for residential, commercial and industrial purposes, or any municipal purpose other than an airport.
For these reasons it follows that the airport, regardless of its size, should not have been included in the annexation area, and by its inclusion makes the area per se, in view of the extensive governmental services required and Vandalia's limited capacity and facilities, unreasonably large for Vandalia to serve.
With relation to whether or not the map or plat was accurate, it is fair to assume that the several minor corrections suggested by the county engineer's department were adopted by the commission, but on which the transcript is silent, and that such map or plat, together with the legal descriptions of land included therein were accurate as of November 19, 1968, when the commission granted annexation.
General Good:
As to whether or not the general good of the territory sought to be annexed would be served by granting the annexation, plaintiffs contend it was unreasonable for the commission to conclude that the general good would be served as no benefits would accrue to the airport property as a result, for the reason that all required governmental services were and are presently available to the airport, which is efficiently operated and which services are fully sufficient and adequate for its protection, maintenance and development in the interests of the public welfare.
The evidence in this case raises a question as to whether the petitioners and Vandalia officials are really interested in serving the general good of the annexation area and the airport.
It seems probable, after Dayton in April, 1968, publicly announced as a part of its urban services extension plan its intention to annex an area north of Dayton, including the airport, and a corridor west and south thereof, that Vandalia, reacting to such announcement, decided to initiate an annexation proceeding, including the airport, before Dayton could take action. The transcript of the commission hearing shows that the superintendent of the Vandalia-Butler school district urged this course of action so that such district might not lose $30,000 in personal property taxes if Dayton annexed the airport first. That pursuant to Vandalia's decision to annex the Vandalia city manager personally circulated the petition and obtained the signatures of the 13 resident owners of the properties in the annexation area. The evidence shows that they had been notified in April 1968, or thereafter, before they signed the petition in July 1968, that their properties would be acquired by Dayton for airport purposes, that upon signing the petition they knew that their separate properties would not benefit from annexation, but they were willing to assist Vandalia to start the annexation proceeding. That all such properties have been appropriated by Dayton. That no nonresident owner, individual or corporate, has shown any interest in the alleged benefits to be derived from annexation, and the annexation petitioners, who no longer own their properties, cannot be affected by the annexation. Ordinarily, petitioners for annexation initiate the circulation of petitions among resident freeholders or owners in the proposed area for the purpose of obtaining needed governmental services that can be supplied by an adjacent municipality. However, in this case, the petitioners did not voluntarily seek annexation for services that would accrue to their properties, but perhaps in their efforts to realize higher prices for their properties being appropriated, they were willing instruments in Vandalia's plan to annex the airport area.
Defendants' city manager, in his unsworn letter of August 18, 1968, to Dayton's manager, assumes that by some legal or other means, Vandalia will require dedication to Vandalia of the airport thoroughfares, parking areas, water and sewer lines with easements; that upon dedication the airport will receive enlarged water and sewer services with maintenance at lower rates; also street construction, development and maintenance, including cleaning and snow removal. Plaintiff's manager in his letter to the commission and in his testimony in this injunction proceeding, stated that the city of Dayton has adequate and efficient services in these areas, and that Dayton will continue such services whether or not Vandalia annexes the airport area; that such airport facilities are private property of Dayton, and that the city will continue to give police and fire protection to the airport; and that Vandalia does not really plan or intend to extend beneficial urban services to the airport, but is really interested in collecting additional revenues from and exerting governmental control over the airport.
Counsel for defendants, the only person who made a statement at the commission hearing relating to the general good of the airport being served by the annexation, stated that Vandalia would supply "police and fire protection, road repair and snow removal, and various other needed services." Since counsel for defendants and Vandalia's city manager both recognize the necessity of dedication by Dayton of the thoroughfares, parking areas and water and sewer facilities with easements to Vandalia for public use as a condition precedent to Vandalia extending the services and benefits proposed by defendant manager, to the airport, and since there is no legal means to compel dedication, except by appropriation which is impractical and its legality doubtful as between two municipalities, and since the facts do not support an implied dedication, the airport generally extending an invitation only to those intending to use air passenger or freight facilities, and not to the general public without distinction, it appears that neither any benefits to the airport, nor any adverse effects to the legal rights and interests of Dayton would result.
The remaining services that defendants claim will serve the general good of the airport, consisting of first, better coordinated zoning of adjacent land areas with airport land usage; second, Vandalia will establish its own fire department to supplement specialized airport fire equipment; third, Vandalia will plan streets and highways to accommodate traffic flow to and from the airport; fourth, Vandalia will furnish inspection, police and communication services, with the municipal court and jail facilities; fifth, Vandalia will supply its legislative capacity as one governmental unit to replace two units.
With the exception of some auxiliary police service and the use of the Vandalia Municipal Court and jail facilities which may be a small benefit to the airport, none of the remaining items serves the general good of the airport. These items involve subject matter which are unrelated to annexation, such as zoning of adjacent land areas which depends on political and legislative cooperation of areas outside the airport, the bringing into being of a fire department that does not now and may not exist for a number of years, and highway planning to accommodate traffic flow, which planning does not require annexation and can be done equally well without. Inspection services and Vandalia's legislative capacity may be adverse to, as well as serving the general good of the airport. Vandalia, as one governmental unit, may or may not be preferable to two units, Butler township and Montgomery County, depending upon the degree of cooperation.
The court will defer making a finding on whether or not the transcript of the proceedings before the commission justified a finding by the commission that the general good of the annexation area and the airport would be served until after the court has made a general finding on whether or not the proposed annexation will adversely affect the legal rights and interests of the plaintiffs. If the court finds that plaintiffs' legal rights and interests will be adversely affected, the court would be required to take such finding into consideration in determining whether or not the general good of the airport and the annexation area would or would not be served by the annexation.
Adverse Effects:
Plaintiffs' claim that not only would the annexation not be for the general good of the airport, but would adversely affect plaintiffs' legal rights or interests in that the plaintiff, city of Dayton's authority over and responsibility for exclusive control of the airport and its operation, which requires great care and continuous supervision, would be undermined and impaired by Vandalia's interference therewith. Further, that Vandalia lacks the requisite capacity to provide the necessary governmental services to the airport, and that any effort by defendant city to provide such services would necessarily endanger, encumber and impede the safe and dependable operation of the airport for which the city of Dayton has the highest responsibility to the airlines, the passengers and the general public. That to subject the operation of the airport to the dual and divided control of plaintiff and defendant cities would necessarily and dangerously hamper and burden the airport operation for which Dayton has primary responsibility without any reciprocal benefits from Vandalia. That Dayton's responsibility for operating the airport in accordance with the regulations of federal agencies will be necessarily confused and the cost of operations by airlines and other private enterprises using the airport will be necessarily higher by Vandalia's intervention into the control of the airport, its tenants and employees, by taxation, fees and regulations. Further, that Dayton's plans for further development and expansion of the airport and its facilities will be severely impeded and disrupted by annexation to Vandalia.
With relation to the first requirement of proof that plaintiffs must clearly and convincingly show that the annexation would adversely affect plaintiffs' legal rights or interests, defendants contend that the word would in R.C. 709.07 (D)(1), means that plaintiffs must prove that upon annexation the adverse effect must then immediately take place. Plaintiffs, on the contrary, contend that if Vandalia has the legislative or governmental power or legal right to enact legislation or to enforce existing legislation, even though such legislation may or may not be immediately enacted or existing legislation immediately enforced, the fact that such power and authority could adversely affect the rights or interests of plaintiffs in the near or foreseeable future may be taken into account to determine whether the annexation would adversely affect plaintiffs' legal rights or interests.
We agree with plaintiffs' contention. Since predictable governmental action, like other events, may be reasonably certain to occur in the future, the adverse effect of such future action may be felt in the present. Consequently, the words would and could both look to the future, and may affect the present, the difference being that the word could implies events more remote and less certain.
Conflicting or Overlapping Legislative Authority:
There are three classifications of legislative authority that may be exercised over the airport, its facilities, its employees and other persons thereon.
First, the authority of the city of Dayton to acquire lands outside its corporate limits for airport purposes with power to enlarge such airport by purchase, gift or appropriation, and the authority to provide by ordinance or resolution all needful police or sanitary regulations for the protection of such property, and the prosecution of violations thereof in the municipal court of such corporation. R.C. 715.50. The words "may provide" preceding the words by "ordinance or resolution" and the words "may prosecute" preceding the words "violations thereof," indicates the intention of the Legislature to grant to a municipality the option to elect whether or not to enact ordinances or resolutions governing the operation of the facilities located on such airport property. In this case, the city of Dayton has enacted traffic ordinances applicable to the airport, it has invested the director of aviation in charge with authority to adopt and enforce with the consent of the city commission airport regulations and emergency procedures.
Since the airport and its facilities are the property of the city of Dayton, and since the city of Dayton has never dedicated any of its thoroughfares, parking areas and water and sewer facilities to public use, Dayton has a right to continue to enforce such ordinances and regulations in event of annexation by reason of its preemption of the area of police and sanitary regulations with relation to the use of its facilities, not dedicated to public use.
The second classification consists of violations against state law or against ordinances of both Dayton and Vandalia which constitute offenses against the person, such as assault and battery, or a felony which, in event of annexation, either Vandalia or Dayton could prosecute.
Third, in event of annexation Vandalia would succeed to the jurisdiction of Montgomery county in Butler township to enforce the uniform building code and health regulations immediately upon and after annexation, and after the passage of the required period of time, and the giving of notice of the time and place of hearing, the airport annexation area may be re-zoned by Vandalia, after which such rezoning legislation would control the classification of uses and structures in and on the annexation area. In this area, Vandalia has exclusive authority, subject of course and subordinated to any conflicting provisions of state law. Vandalia, in such event, would also succeed to the right to receive all taxes and charges collected under state law formerly received by Butler township, which includes real estate and personal property taxes. Furthermore, Vandalia would have the right to impose and collect Vandalia income tax on non-income tax airport employees, and on the local net profits of the airline and nonairline airport tenants. Furthermore, Vandalia would collect all license and permit fees and charges authorized by Vandalia ordinances against games, exhibitions, taxicabs, for tapins and numerous permits required in connection with building.
It is clear that the second classification of jurisdiction might result in a conflict between Vandalia police and the airport police and deputy sheriffs in the handling of felonies and misdemeanors. The third classification would clearly impose additional expenses upon the airline and non-airline tenants and their employees which would increase their cost of operation which in turn would make the airport operations less efficient and in some cases would necessitate a revision in the terms of the leasing contracts between the city of Dayton and the airlines and nonairline tenants.
The evidence further shows that the city of Dayton and the director of aviation would be required to secure the consent of Vandalia's city manager and mayor in making application for federal grant in aid funds for airport purposes, which consent in the past has been secured from the trustees of Butler township. Such consent if not forthcoming would prevent the application from being processed. Or Vandalia might demand concessions in return for its consent, as its conduct in relation to the operation of the airport by attempting to discontinue its water and sewer services by legal action, and its preoccupation with its own parochial interests, together with its general negative feeling toward Dayton, tends to confirm.
Furthermore, it is clear that Vandalia's ordinances relative to planning, building and zoning codes, together with business regulations, if extended to the airport in their present form, would make practically every building on the airport nonconforming, the extension or enlargement of which is generally prohibited or severely limited.
The motel recently completed at the airport would in such event be in violation, as existing Vandalia ordinances do not permit motels in agricultural districts, thereby making it nonconforming. The larger and higher hangars would become nonconforming. Vandalia's zoning ordinance placing airports in agricultural districts does not permit underground tanks for storage of fuel. Even in I-1 industrial districts fuel storage tanks are limited to 25,000 gallons. Many airport tenants now have storage tanks considerably in excess of such amount, making them nonconforming as to location and gallonage.
From its conduct, dealings and attitudes toward the city of Dayton in the recent past, there is reason to believe that Vandalia will exercise its legislative power, in event of annexation, adversely to the legal rights or interests of the Dayton municipal airport, in that it could enforce either or both of two anti-noise ordinances, one of which delegates to the city manager the discretion of establishing a zone of quiet and the other making loud or unusual noises unlawful. The right of the airport to set its flight patterns would be adversely affected by efforts to enforce Vandalia's anti-noise ordinances. Thus Vandalia would be able to assert legislative control over some phases of the airport operation without assuming responsibilities for the general good of the airport, and the southwest Ohio general public who use its facilities.
It is almost certain that in event of annexation the addition of Vandalia as another governmental agency imposing taxes and controls will result in further litigation between Dayton and Vandalia and perhaps other governmental authorities.
The evidence clearly and convincingly shows that the city of Dayton is supplying the airport with the efficient and adequate governmental services required for a complete and safe airport operation, with provisions for future growth and development. Vandalia is not in a position to supply adequate governmental services and has, by its conduct and statements toward the end of the trial, indicated or implied that it does not intend to supply such required services in event of annexation, although it is ready and willing to accept the revenue from the airport, and to impose its legislative authority on some phases of its operation. It is clear, consequently, that the evidence shows convincingly that the proposed annexation would adversely affect the legal rights and interests of the plaintiffs, city of Dayton, the five major airlines serving the airport, and the 17 nonairline airport tenants.
Commission Procedure Erroneous and Unlawful:
It is clear that there was error in the proceedings and findings of the board of county commissioners in that the resolution of November 19, 1968, allowing annexation did not make the findings mandatorily required by par. (B) and (D) of R.C. 709.033, but rather relied upon the opinion of the assistant prosecuting attorney that the annexation petition was in proper legal form, which only satisfied the requirements of par. (A) of said section, and further found that they had no alternative other than to honor the wishes of the majority of the petitioners who signed for annexation (par. (C)).
Since the commission was acting in a quasi judicial capacity rather than as a political body, Jacobs v. Maddox (1966), 7 Ohio St.2d 21, in hearing and acting upon the petition for annexation, it could not bypass its legal responsibility and mandatory duty to make all the findings required by R.C. 709.033, as a condition precedent to allowing annexation. It had no right to adopt the statement of the assistant prosecuting attorney as its decision, as such statement was limited to matters of form of the petition. The commission was bound to exercise its own independent judgment based upon the facts in making the findings required by par. (A), (B), (C) and (D) of said section.
Under such circumstances it cannot be presumed that the commission intended to make the required findings, but failed to have them inserted in the resolution, as the transcript of the commission hearing wholly fails to establish that the area to be annexed was not unreasonably large for Vandalia to furnish the required governmental services, and fails to show that the annexation would serve the general good of the airport, but instead shows that it was too large for Vandalia to serve, and that the annexation would have an adverse effect thereon, and the legal rights and interests of the plaintiffs. Nothing in the injunction hearing on the merits in this court supports or proves the contrary.
The court therefore finds by clear and convincing evidence that the errors of omission by the commission in failing to make the findings, particularly the substantive findings required by R.C. 709.033 (D), as a condition precedent to its order of annexation makes such order erroneous and unlawful, although had the commission made findings on the size of the area and the general good favorably to annexation such findings would have been erroneous in that they were clearly against the weight of the evidence.
Plaintiff, city of Dayton and the five plaintiff airlines have called the court's attention to the fact that the constitutionality of R.C. 709.02, 709.032 and 709.033, in force and effect at the time the petition for annexation was filed and the decision of the county commission granting annexation was rendered on July 30 and November 19, 1958, respectively, were later on June 16, 1969 called into question by United States Supreme Court decisions in the Kramer v. Union Free School District, 395 U.S. 621 and Cipriano v. Houma, 395 U.S. 701, cases. Further, because of such decisions the Legislature of Ohio amended said sections effective November 21, 1969, substituting the words "owner" and "owners" for "resident freeholders" in the area sought to be annexed.
Assuming that said decisions apply to the Revised Code sections providing for annexation by petition to a municipality and that nonresident owners of real estate in the proposed area, both individual and corporate (not including municipal corporations), would be deprived of equal protection of the law under the 14th Amendment to the federal constitution if not given an opportunity to sign or to refuse to sign the petition for annexation, then had such amended sections effective November 21, 1969, been in force and effect on July 30 and November 19, 1968, there would have been 27 owners of real estate in the proposed annexation area, of which only 13 signed the petition, which is less than a majority, and which would have barred the county commission from granting the annexation.
However, the airline and the nonairline tenant plaintiffs have no standing to assert unconstitutionality in this case for the reason that they are not owners of real estate within the meaning of the definition of that word in R.C. 709.02, as amended November 21, 1969, and are not one of those within the class entitled to be equally protected by the 14th Amendment as a result of the violation thereof by the petition procedure used in July 1968, by the circulator thereof and by the finding of the county commission granting annexation, in which it found that a majority of the freeholders living in the area had signed the petition. Nor can the city of Dayton, which was and still is a freeholder and an owner of the airport land in the annexation area, invoke the equal protection clause against an act of the state Legislature, as it has no standing to assert the invalidity of former R.C. 709.02. State, ex rel. Hostetter v. Hunt (1937), 132 Ohio St. 568; 11 Ohio Jurisprudence 2d, Constitutional Law, 669; Williams v. Baltimore (1933), 289 U.S. 36. By way of general summary and in addition thereto, we find, —
1. That the county commission in Resolution No. 2204 of November 19, 1968, allowing annexation, failed to make the findings required by R.C. 709.033 as conditions precedent to the allowance of the annexation, although the transcript of the proceedings before the commission shows that the matters referred to in paragraphs (A), (B) or (C) of said section, and the second requirement referred to in paragraph (D) thereof were sufficiently complied with to justify the commission in making findings that such items had been complied with.
2. The information, written or verbal, as reflected by the transcript of proceedings before the county commission completely failed to show that the territory proposed to be annexed is not unreasonably large, and further completely failed to show, with the exception of an opinion and conclusion of counsel for defendants, without any supporting facts, that the general good of the airport territory would be served by the annexation.
3. The commission made no findings on the first and third items of paragraph (D) of said R.C. 709.033 relating to the size and the general good of the territory, which findings were mandatory, the same involving important substantive matters.
4. That the commission resolution No. 2204 of November 19, 1968, making reference only to the petition being in proper legal form and to the necessity of honoring the wishes of the majority of the petitioners signing for annexation as a basis for granting such annexation, was erroneous and contrary to law in that the commission failed to make the findings required by paragraph (B), (C) and (D) of R.C. 709.033.
5. The allowance of the annexation by the commission was unreasonable in that 90% of the area sought to be annexed was developed and available only for airport purposes and was not available for the usual development and expansion of Vandalia, residentially, commercially and industrially, with plats and lots, together with streets, roads and utilities.
6. That there are large tracts of vacant land within and outside the corporate limits of Vandalia to the north, east, south and southwest available for municipal expansion, and that no portion of the proposed annexation area is needed for Vandalia municipal purposes.
7. That adequate police protection is supplied to the airport by the airport police department, consisting of 9 deputy sheriffs, in which airport there is practically no criminal activity. That the airport fire department consisting of 12 employees and almost a million dollars worth of specialized airplane crash and structural fire-fighting equipment, backed by Dayton fire department facilities, and the rescue and ambulance services of Butler township, is a well trained and highly competent department serving the needs of the airport. That the public health, planning, zoning, building and safety inspection services supplied by Montgomery County and Dayton have been effectively coordinated and are fully adequate; that no conditions at the airport constitute a threat to the health, welfare or safety of persons in the airport or residing in Vandalia and other adjacent areas. That the roads, parking areas, the water and sewer systems and other sanitary facilities have not been dedicated to general public use, the same being restricted to those having business in the airport. That Vandalia has no fire department and is not likely to have a fully equipped and efficient department in the near or foreseeable future. Vandalia police department, consisting of 14 men, is undermanned and if annexation is granted an addition of 4 men will make possible one man and a patrol car patrolling the airport daily. That gas and electricity are supplied by a non municipal public utility; while water, presently supplied by Vandalia, though currently adequate, will probably be insufficient in the foreseeable future, both in quantity and quality, unless augmented by improved facilities to serve the expanded needs of the airport.
8. That Vandalia does not now furnish, nor is it presently in a position to furnish, excepting water and sewer services at a premium price, services of any substantial value to the airport that are not already supplied more completely and efficiently by the city of Dayton, the airlines and the tenants.
9. That the interests of the residents and businesses located in Dayton, Montgomery County and surrounding counties in southwestern Ohio and eastern Indiana, in the protection, growth, development and general welfare of the airport are more important than the interests of Vandalia and its residents therein.
10. That practically no benefits would accrue to the airport as a result of the annexation, and that the attempted substitution or addition of services by Vandalia would necessarily result in governmental and administrative conflict and confusion, retarding the growth and development of the airport, increasing expenses to Dayton, the airlines and the tenants through taxation, charges and fees, without reciprocal benefits to the airport from Vandalia.
11. Defendants have indicated that Vandalia will not attempt to supply many of the services now being supplied by Dayton and Montgomery County, either due to the fact that Vandalia has no such services, or has inadequate servces, or that the services now being supplied by Dayton are highly efficient and adequate, or because Dayton, the airlines and the tenants propose to continue present services, whether or not annexation is granted, in the interests of continuing to furnish the public with safe and efficient transportation services heretofore supplied. As a consequence, the general good of the airport and the annexation area will not be served by annexation.
12. Annexation will interfere with Dayton's unrestricted right to apply for and secure federal grant-in-aid funds for airport improvement in that Vandalia's consent to such application must be obtained, in return for which Vandalia will if it desires be in a position to make demands or exact concessions from the city of Dayton and the airport.
13. That Vandalia's legislative power may be used as a means of imposing controls on the airport, as well as realizing large amounts of money from airport real estate, personal property and income taxes, together with other fees and charges, with practically no benefits being conferred by Vandalia on the airport.
14. That in event of annexation the rights and interests of the city of Dayton, the airlines and the tenants under their leasing contracts will be unfavorably affected in that the overall cost of airlines operations will be increased by the taxes, charges and fees payable by them to Vandalia, which in turn may, and probably will require revision of the leasing contracts.
15. That there has been practically no growth from Vandalia into the annexation area, and that no part of such area is needed by Vandalia for municipal purposes, there being much more available territory into which Vandalia can expand within its corporate limits, and more than ten thousand acres beyond to the north, east, south and southwest than Vandalia can possibly need in this century.
16. Consequently, the annexation of the airport by Vandalia is unreasonable, the proceedings before the commission therefor were erroneous and unlawful, and such proposed annexation would vitally and adversely affect the legal rights and interests of plaintiffs in the three consolidated cases. McDonnell Aircraft v. City of Berkeley, 367 S.W.2d 498.
The court, therefore, finds that a permanent injunction should issue enjoining defendants, clerk and finance director, and any other defendant or person from laying the transcript, petition and map before the city council of Vandalia, and permanently enjoins the individual defendant members of the city council of Vandalia from taking any legislative action with respect to the annexation.
Permanent injunction granted.