Opinion
No. 36567
Decided February 8, 1961.
Municipal corporations — Annexation of territory — Continuing jurisdiction of county commissioners — Power to reconsider and redetermine action on petition to annex.
APPEAL from the Court of Appeals for Franklin County.
This case involves the annexation of land to the city of Columbus. An amended petition for annexation was filed with the Board of County Commissioners of Franklin County as authorized by Section 709.02, Revised Code. A hearing was had by the board which approved the amended petition. A transcript of the proceeding was certified and delivered to the City Clerk of Columbus on August 27, 1956. On October 23, 1956, prior to the expiration of the 60-day waiting period before presentation of the proceeding to council, as prescribed by Section 709.04, Revised Code, Mariemont, Inc., a plaintiff in the instant action, instituted an action in the Common Pleas Court of Franklin County to enjoin the City Clerk from presenting the annexation matter to the city council and to enjoin further proceedings. The court entered a judgment dismissing the petition on July 28, 1958. On the same day, the cause was appealed to the Court of Appeals which entered a temporary restraining order enjoining the City Clerk from presenting the annexation matter to city council. On August 5, 1958, while the injunction suit was pending in the Court of Appeals, an application was filed with the Board of County Commissioners to reconsider its decision on the annexation. The board exercised jurisdiction and set November 12, 1958, as the date for further hearing. At 9:47 a.m. on November 12, the Court of Appeals dismissed the aforesaid appeal. At 10 a.m. on the same day, the Board of County Commissioners continued the matter to November 14, on which day it denied the amended petition for annexation. At the next regular meeting of the city council on November 17, the earliest time the transcript could be presented to city council (Section 709.07, Revised Code), it passed an ordinance accepting the application for annexation.
Thereafter the instant action was brought in the Common Pleas Court of Franklin County, seeking to enjoin the county recorder from recording the transcript of the annexation proceeding and the county auditor from transferring the territory on the tax duplicate. A temporary restraining order was issued, and the city of Columbus was given leave to intervene as a party defendant.
The trial court rendered judgment for defendant city of Columbus, dissolved the temporary restraining order, and dismissed the petition.
The Court of Appeals, on appeal on questions of law, reversed the judgment of the trial court and remanded the cause with instructions to enter a decree of injunction.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Lucas, Lucas, Prendergast Albright, for appellee.
Mr. Russell Leach, city attorney, Mr. John C. Young, Mr. Frank A. Reda and Mr. Alba L. Whiteside, for appellant.
The question here presented is whether the Board of County Commissioners had continuing jurisdiction to rehear and redetermine the annexation proceeding after the Court of Appeals dismissed the former injunction proceeding on November 12, 1958.
This question was answered by this court in the case of State, ex rel. Maxson, v. Board of County Commrs. of Franklin County, 167 Ohio St. 458, wherein it is stated on page 460:
"* * * the board had the statutory power and duty to determine, in the exercise of its sound discretion, whether annexation * * * should be granted and had continuing jurisdiction to reconsider its decision until the institution of court proceedings attacking such decision or until the expiration of the time allowed for the institution of such proceedings." (Emphasis supplied.)
The judgment of the Court of Appeals is reversed, and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
ZIMMERMAN, TAFT, BELL, HERBERT and O'NEILL, JJ., concur.