Opinion
No. 35196
Decided December 24, 1957.
Municipal corporations — Annexation of territory on application of corporation — Sections 709.13 to 709.21, Revised Code — Vote by electors of unincorporated area — Section 709.17, Revised Code — Election favorable to annexation — Not mandate to county commissioners to effectuate annexation — Commissioners required to exercise discretion — Denial of petition determinative of issue, when.
1. As to proceedings by a municipal corporation, under Sections 709.13 to 709.21, Revised Code, for the annexation of contiguous unincorporated territory of a township, Section 709.17 provides for a vote by the electors of the unincorporated area of the township, and that all annexation proceedings shall be stayed until the result of the election shall be known. If, in such election, a majority of the electors of the unincorporated area vote in favor of annexation, proceedings shall begin within 90 days to complete it, but if a majority of the votes in the election are against annexation, no further proceedings by petition of a municipal corporation for annexation shall be had for at least five years.
2. The election provided for in Section 709.17. Revised Code, operates as a veto upon such annexation proceedings if it is adverse to such annexation, but, if it is favorable to annexation, such election does not constitute a mandate to the county commissioners to act in a ministerial capacity to effectuate such annexation, the commissioners are still required to exercise their discretion to either allow or deny the petition for annexation, and their denial thereof in good faith, for the reasons that the territory proposed to be annexed is unreasonably large and that it is not right or equitable that the petition for annexation be allowed, is determinative of the issue.
APPEAL from the Court of Appeals for Franklin County.
Clark E. Loofbourrow, solicitor of the village of Worthington, Ohio, hereinafter designated relator, instituted an action in mandamus in the Court of Appeals for Franklin County against the Board of County Commissioners of Franklin County and Henry A. Koontz, C.P. Lauderbaugh and Harry T. Vigor, members of such board, hereinafter designated respondents.
In the amended petition filed September 11, 1956, relator alleges that on June 14, 1954, the council of the village of Worthington passed, as an emergency measure, ordinance No. 1280 authorizing the annexation of certain and described contiguous territory in Sharon Township, Franklin County, to the village of Worthington and appointing relator its agent to prosecute proceedings to effect such annexation; that on July 2, 1954, relator filed a certified copy of such ordinance, together with an accurate map showing the territory proposed to be annexed, with the Board of Elections of Franklin County in order that an election might be had in accordance with the provisions of Section 709.17, Revised Code; that on July 2, 1954, he filed with respondents a petition, in the name of the village, requesting annexation of the described territory to the village and having attached thereto an accurate map of the territory, together with a certified copy of the ordinance; that immediately thereafter relator, seeking an election on the question as required by statute, filed a certified copy of the ordinance, together with a map showing the territory proposed to be annexed, with the board of elections; that a vote on the question by the electors in the unincorporated area of Sharon Township was had on November 2, 1954; that such question was approved by a substantial majority of the voters voting in the election, which result was, on November 15, 1954, certified by the board of elections to respondents; that, pursuant to the provisions of Section 709.17, respondents, by resolution adopted November 16, 1954, ordered a hearing on the petition of the village to be held on January 28, 1955, and ordered petitioner's agent to give notice thereof, which notice such agent caused to be given; that at the hearing on the petition of the village on January 28, 1955, respondents found that such petition contained all the matters required by law; that the territory sought to be annexed is adjacent and contiguous to the village; that the petition contains a full and complete description of the territory sought to be annexed; that the map of the territory is accurate; that the petition is signed by the duly authorized agent of the village; that the respondents, however, by resolution dated February 7, 1955, have attempted to deny the petition and have failed to complete the annexation, approved by the electors of the unincorporated area, notwithstanding that respondents have found such petition to be in order and the map and description of the contiguous property to be complete and accurate; that the Court of Appeals for Franklin County, by its decision dated March 10, 1955, held that the petition of the village is valid and properly before respondents and issued a peremptory writ of mandamus against respondents, ordering them to take up, consider and act upon such petition; that respondents, by resolution dated March 21, 1955, have assumed the law allows them discretion to either allow or refuse the annexation; that they have attempted to again deny such petition and have failed and refused and continue to fail and refuse to complete the annexation approved by the electors of the unincorporated area, as required by Section 709.17; that, by virtue of the facts that respondents have found the petition of the village to be valid and that a majority of the electors of the area voting in the election favored the annexation, such petition of the village must be allowed by respondents, pursuant to Section 709.17; that respondents' failure and refusal to allow the annexation result in irreparable damage to the village of Worthington in matters of taxes, fiscal affairs and governmental functions for which there is no plain and adequate remedy in the ordinary course of the law; and that the council of the village specifically authorized relator to institute and prosecute these proceedings.
For his second cause of action, relator alleges, in the alternative, that, if respondents had any discretion as to the petition of the village, the refusal of respondents to allow the annexation was an abuse of such discretion.
Relator prays that respondents' resolutions in this matter, dated February 7, 1955, and March 21, 1955, be adjudged null and void, so far as such resolutions purport to find or hold, or both, "that the territory sought to be annexed is unreasonably large; that subsequent to the election remonstrances were filed with the board indicating that they did not wish to be annexed, and that it is not right, just and/or equitable that the prayer of the petition be granted, and it is therefore, ordered that the petition of the village of Worthington be denied"; and that a writ of mandamus issue commanding respondents to allow the petition and forthwith complete the annexation as respondents are, by Section 709.17, required to do, at costs to respondents.
On February 1, 1957, respondents filed a demurrer to the amended petition, on the ground that it does not set forth facts sufficient to constitute a cause of action.
The Court of Appeals sustained the demurrer and denied the writ of mandamus.
The cause is before this court as a matter of right.
Mr. Richard T. Savage, solicitor, and Mr. Carl Tangeman, for appellant.
Mr. Samuel L. Devine, prosecuting attorney, and Mr. Earl W. Allison, for appellees.
The question of law posed by relator is, where a Board of County Commissioners has before it a petition wherein annexation of contiguous territory in a township is sought by an incorporated municipality, and the question has been submitted to a vote of the electors of the unincorporated area of the township, pursuant to Section 709.17, Revised Code, at which election a majority of the electors voted in favor of the proposed annexation, does the Board of County Commissioners have discretion to determine (a) "that the territory sought to be annexed is unreasonably large," or (b) "that it is not right, just and/or equitable that the prayer of the petition be granted."
In the present case, stipulations were filed to the effect that relator, after the resolution of respondents of February 7, 1955, in which they denied the petition of the village on jurisdictional grounds, instituted an action in the Court of Appeals to mandamus respondents to act upon the petition and consider it on its merits.
The Court of Appeals issued the writ of mandamus requested by relator, and in response thereto the respondents had a hearing and passed the resolution of March 21, 1955, denying the petition.
Respondents maintain that, since relator in his first action in mandamus recognized a discretionary power in the commissioners to allow or deny the petition of the village, and since he might have demanded in that action the relief which he now seeks, the matter is res judicata and relator is estopped to proceed further.
Likewise, in the stipulations filed, it is agreed that portions of the territory sought to be annexed by the village have either been or are in the process of being annexed to the city of Columbus, and in their brief respondents contend that the question raised in the present case is moot, since the territory originally described can no longer be legally annexed to the village.
Both these propositions have persuasive force, but since they are developed only in the stipulations and brief, and the question before us arises on a demurrer to the amended petition, and likewise because of the conclusion at which we have arrived, we base our decision in the present case solely on the question of whether the amended petition states a cause of action.
Annexation of contiguous territory to a municipality may be accomplished through two methods.
Sections 709.02 to 709.12, inclusive, Revised Code, set out the method of annexation of adjacent territory by resident free-holders.
Sections 709.13 to 709.21, inclusive, Revised Code, provide the method of annexation on petition by a municipal corporation, which is the method used in the present case.
Section 709.14, Revised Code, provides for the passage of an ordinance authorizing annexation to be made and directing the solicitor of the municipal corporation, or some other person named in the ordinance, to prosecute the proceedings necessary to effect it.
Section 709.15, Revised Code, provides for the application of the municipality to the Board of County Commissioners, requesting the annexation of contiguous territory, with an accurate description of the territory to be annexed, accompanied by an accurate map or plat thereof.
Section 709.16, Revised Code, provides that the proceedings before the county commissioners shall be in all respects, so far as applicable, such as are required by Sections 709.02 to 709.12, Revised Code.
Section 709.17, Revised Code, reads, in part, as follows:
"A vote by the electors of the unincorporated area of the township shall be taken under the election laws of this state at the next general or primary election occurring more than 30 days after the legislative authority of a municipal corporation passes the ordinance mentioned in Section 709.14 of the Revised Code. Thereupon all annexation proceedings shall be stayed until the result of the election is known. If a majority of the electors of such area voting in the election favor annexation, proceedings shall begin within 90 days to complete annexation, and if a majority of the electors voting in the election is against annexation, no further proceedings shall be had for at least five years."
Since it is conceded that all the proceedings taken by the village were regular, and that at the election the voters of the unincorporated territory voted in favor of the annexation, the sole question before us is whether the succeeding action of the county commissioners is purely ministerial to order the annexation, or whether they have discretion to either allow or deny the petition therefor.
Relator strenuously maintains that, the village having petitioned for the annexation, and the electors in the territory proposed to be annexed having voted in favor of annexation, the voice of the people settles the question, and the commissioners have nothing further to do except to order it. Their contention is along the vox populi vox Dei philosophy.
We are of the opinion that the General Assembly could have provided for such a process, but this it did not do.
Section 709.16 provides, with reference to a petition for annexation of contiguous territory by a municipality, that proceedings shall be had in all respects, so far as applicable, as are required by Sections 709.02 to 709.12, inclusive, Revised Code. These sections refer to the incorporation of villages, and in Section 707.07, Revised Code, there are set out the various requirements for organization. Among the requirements are that the limits of the proposed municipal corporation be accurately described and the proposed corporation is not unreasonably large or small, and that it is right that the prayer of the petition be granted. It is requisite that the county commissioners make a finding to that effect.
Since this section is made applicable to the proceedings in the present case, it follows, by inexorable logic, that the vote of the people is not final, but that the commissioners still have the discretion to find as they did in the present case.
It seems that the only reasonable interpretation of Section 709.17, with reference to an election, is that such election shall be in the nature of a veto power. In other words, a municipality files a petition for annexation, and, instead of leaving it entirely to the commissioners as to whether to allow such petition, the electors have a right to vote upon the question whether they desire such annexation.
After the municipal corporation has passed its ordinance for annexation, all annexation proceedings must be stayed until the result of the election is known. If the voters favor annexation, proceedings as to its conclusion must begin within 90 days, whereas, if the voters vote against annexation, no further proceedings shall be had for at least five years.
The reasonable interpretation of provisions such as these is that the electors can, for a period of five years, scotch all proceedings to annex, whereas, if they favor annexation, the proceedings continue.
This must be the logical interpretation of the statute because, if it was mandatory upon the commissioners to grant annexation after a favorable vote, it would have been simple to so provide, but the language concerning further proceedings clearly indicates that the only mandate to the commissioners by the election is to proceed and determine, as did the commissioners in the present case, whether the territory to be annexed is unreasonably large or small, and whether it is right that the prayer of the petition be granted. See Powers v. County Commissioners of Wood County, 8 Ohio St. 286, 289, and Hulbert v. Mason, 29 Ohio St. 562.
In his second cause of action, relator contends that, if it is found that the commissioners did have discretion with reference to the annexation, they abused such discretion, and, therefore, the writ of mandamus should be allowed to correct such abuse. Obviously, the commissioners must act in good faith, and there are no allegations in the petition indicating any abuse of discretion or any bad faith upon the part of the commissioners, and, since the hearing of March 21, 1955, apparently was full and complete and the commissioners denied the petition for annexation upon the merits of the facts presented at such hearing, we must conclude that relator is not entitled to a writ of mandamus.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, TAFT and MATTHIAS, JJ., concur.
I feel constrained to add my voice, ineffective though it be, to the contention designated in the majority opinion as along the vox populi vox Dei philosophy.
I have thought that one of our basic concepts of democratic government is that in most governmental matters, exclusive of the protection of individual rights and liberties guaranteed by our Constitutions, we are controlled by the expression of the majority.
Section 709.17, Revised Code, was enacted in 1941 to provide for a vote by the electors of the area sought to be annexed upon petition of a municipal corporation.
Section 709.16, Revised Code, provides that "when a petition for the annexation of contiguous territory by a municipal corporation is presented to the Board of County Commissioners, proceedings shall be had in all respects, so far as applicable, as are required by Sections 709.02 to 709.12, inclusive, of the Revised Code." * * * (Emphasis supplied.)
Considering those sections then, we find that Section 709.03, Revised Code, provides that when a petition for annexation is addressed to the Board of County Commissioners, signed by a majority of the freeholders residing in such territory, "the same proceedings shall be had as far as applicable, * * * as are required in case of an application to be organized into a village under Sections 707.01 to 707.30, inclusive, of the Revised Code." (Emphasis supplied.)
Thus by a double reference, Section 707.07 comes under examination, as far as applicable. That section provides that the Board of County Commissioners, before it enters an order on its journal allowing the proposed incorporation of a village, must find that:
(A) The petition contains all the matters required;
(B) The statements in the petition are true;
(C) The name proposed is appropriate;
(D) The limits of the proposed municipal corporation are accurately described and are not unreasonably large or small;
(E) The map or plat is accurate;
(F) The persons whose names are subscribed to the petition are electors residing in the territory;
(G) Notice has been given as required;
(H) There is the requisite population for the proposed municipal corporation;
(I) It is right that the prayer of the petition be granted.
It is obvious, since they provide for a final check on facts which are easily ascertainable, that (A), (B) and (E) are applicable here, and it is equally obvious that (C), (F) and (H) are inapplicable. The applicability of (G) is not at issue. To hold (D) applicable requires the substitution therein of the words, "the territory proposed to be annexed," in place of the words, "proposed municipal corporation." With that substitution, it is incumbent upon the Board of County Commissioners to ascertain the accuracy of the limits described, as it admittedly did here. As to the remaining language of (D), requiring the Board of County Commissioners to find that the limits are "not unreasonably large or small," and as to (I), the exercise of the discretion of the Board of County Commissioners is called for.
Section 709.17, Revised Code, provides that annexation proceedings shall be stayed until the result of the election provided for is known. It then provides that, if a majority of the electors of the area voting in the election favor annexation, "proceedings shall begin within 90 days to complete annexation." (Emphasis supplied.)
The decision here nullifies the effect of the above-emphasized words to such an extent that they might just as well have read, "as provided in Section 709.16, Revised Code."
I can come only to the conclusion that the General Assembly, in the enactment of Section 709.17, removed from the Board of County Commissioners its discretionary authority originally and properly vested in it in connection with the creation of villages, and that such board cannot, in good faith or otherwise, thwart the expressed will not only of the legislative authority of the municipal corporation seeking to annex certain territory but also of the majority of the electors of the territory sought to be annexed.
At least one beneficial effect of this decision will be to put the issue up to the Legislature in the future as to the extent of the discretionary power remaining in a Board of County Commissioners in annexation proceedings such as that under consideration here.