Opinion
No. 79505
Decided November 18, 1969.
Municipal corporations — Annexation of territory — Injunction against — Section 709.07, Revised Code — Who may apply for injunction — Proper parties plaintiff — "Person interested" construed — Discretionary powers of board of county commissioners — Courts without authority to interfere or control — Grounds necessary for injunctive relief — Degree of evidence required.
1. Section 709.07, Revised Code, dealing with injunction against annexation, was enacted to do just what it says, namely, to provide the procedure whereby: "* * * any person interested may make application by petition to the Court of Common Pleas praying for an injunction * * *" and if all matters required in paragraph D (1) and (2) are found to be present by clear and convincing evidence the injunction shall be ordered. Actions brought under this section are the exceptions to the general rule of law limiting injunctive relief to cases of irreparable injury. Under this section no claim of irreparable injury need be alleged or proven.
2. The law of Ohio, Chapter 709, Revised Code, has vested in the boards of county commissioners the authority, and has prescribed the procedures, whereby annexation of teritory adjacent to a municipality may be accomplished. So long as the commissioners act honestly and in good faith, and keep within the limits of the powers given them by the law, the courts have no authority to interfere with or control their legitimate discretion. This court has no power to substitute its opinion or discretion for that of the Board of Commissioners of Trumbull County in matters such as their approval of the annexation petition December 31, 1968, which the law has placed within their control. In the absence of showing that such board abused that legitimate discretion or acted illegally, this court has no authority to interfere.
3. The former Section 709.07, Revised Code, contained no directive with respect to a finding by the court of petitioner's showing "by clear and convincing evidence" of both, the adverse effect of, or the error in proceedings of the proposed annexation. Thus, applying the common, ordinary and accepted meaning to the words of the statute, the provisions of the presently effective section appear as obvious limitations, rather than enlargements to the grounds for injunction in annexation proceedings. Furthermore, under this provision, it is not enough to show one of the grounds, the court must now find "all of the following by clear and convincing evidence." Which is to say, that, unless all of the matters set forth in subparagraphs (1) and (2) of paragraph D, Section 709.07 Revised Code, are found by the court, the petition to enjoin the annexation in question shall be dismissed.
4. It is the opinion of this court that the legislative intent with respect to annexation of property by a municipality, is to protect, as a property right of a resident freeholder, freedom of choice as to the governmental subdivision in which he desires his property to be located. Having given this choice to resident freeholders it follows that the same intent is to exclude nonresident taxpayers as "interested" persons. Accordingly, this court finds that the plaintiff herein, being a resident of the township but not of the area sought to be annexed, is not a "person interested" within the meaning of Section 709.07, Revised Code.
5. Having determined that the plaintiff herein is not a "person interested" in the subject annexation, it follows that she does not have legal capacity to sue, nor is she a proper party plaintiff in the instant case, and this court so finds.
Mr. Albert F. Swartz, for plaintiff, Margaret Terwilliger.
Mr. Mitchell F. Shaker, city solicitor, for defendant, Patrick Sullivan.
Mr. R. C. Westenfield, for defendant, Michael E. Lester.
This cause came on to be heard on the pleadings, the briefs of the parties and the evidence.
Plaintiff filed her petition herein by authority of Section 709.07, Revised Code, wherein she prays that this court issue its order enjoining defendant, Patrick Sullivan, Clerk and Auditor of the city of Niles, Ohio, from presenting the annexation petition and other papers to the legislative authority of Niles.
Plaintiff alleges that a petition was filed with the Board of County Commissioners of Trumbull County, Ohio, praying that 15.20 acres of land in Howland Township and 15.95 acres of land in Weathersfield Township, both of Trumbull County, be annexed to the city of Niles.
Plaintiff contends that the proposed annexation would adversely affect her legal rights and interests by reason of the error and findings of the Trumbull County Board of Commissioners based on the unlawful proceedings as follows:
1. The territory sought to be annexed is not adjacent to the municipal corporation of Niles as required by Section 709.02, Revised Code.
2. The petitioners for annexation are not inhabitants or freeholders in the territory of Howland as required by Section 709.02, Revised Code.
3. The general good of the territory sought to be annexed will not be served by the annexation.
Plaintiff states further that the area sought to be annexed is valuable commercial property, that said annexations would result in a loss of tax revenue and thus, a possible reduction of services rendered by Howland Township; and that the cutting of the township boundaries will curtail future development of the Township of Howland in which the plaintiff resides as a freeholder and as a taxpayer.
Subsequently, the defendants, Patrick Sullivan, clerk of the city of Niles, and Michael E. Lester, agent of the petitioners for annexation, moved that plaintiff's petition be dismissed and that the court dissolve its order (concurrently issued upon filing of plaintiff's petition herein) staying further proceedings on the annexation.
The presiding judge of this court overruled defendants' motion, whereupon defendants filed their answer admitting that defendant Lester had filed an annexation petition as alleged; that plaintiff had attended the hearing on the petition held by the Board of County Commissioners; and that the board approved the annexation petition and deposited the transcript and other papers with the Niles city auditor and clerk of council.
Further, the defendants specifically deny that the plaintiff is a "person interested" as required by Section 709.07, Revised Code, and say she has no legal capacity to maintain the instant action; that she does not reside in the area; that she is not an elected or appointed official of any public agency or governmental subdivision within Howland Township; that plaintiff fails to allege facts indicating irreparable damage warranting injunctive relief; and that the petition was not filed in accordance with the requirements of Section 707.11, Revised Code, and should therefore be dismissed.
This cause was assigned for trial September 25, 1969, and at the close of plaintiff's case defendants again moved to dismiss plaintiff's petition and to dissolve the stay of proceedings, this time for the following reasons:
"1. The plaintiff has not shown a legal capacity to sue.
"2. The plaintiff has not established that she is an interested party as interpreted by the statutes and the cases.
"3. The plaintiff has not proved any claim of irreparable injury as would entitle her to injunctive relief.
"4. Proceedings in annexation and their determination are within the sound discretion of the county commissioners and the legislative authority of the city to which the property is being annexed."
Ruling on defendants' motion was deferred and the court then proceeded with the hearing on the merits. Accordingly, the first item for consideration herein is defendants' motion for dismissal.
Plaintiff contends that the amendment to Section 709.07, Revised Code, effective December 1, 1967, substantially changed the law with respect to who is "any interested person," within the meaning of the statute. Plaintiff's statement to this effect was set forth in her brief in answer to defendants' motion to dismiss, which was filed before hearing and which was subsequently overruled by the court.
In overruling defendants' motion filed before hearing, Judge Buchwalter apparently concurred with plaintiff's contention that "Defendants are attempting to determine these questions by motion instead of a court hearing." Essentially the same motion was again made by defendants, this time, during the trial of this cause and at the close of the plaintiff's case. Thus, the court, after full hearing of the parties, will again consider the questions raised by defendants' motion for dismissal.
The issues presented by defendants' motion will be discusesd in the following order:
1. Is the plaintiff required to establish irreparable injury to herself in order to obtain injunctive relief?
2. Are annexation proceedings and their determination within the sound discretion of the Board of County Commissioners and has the court authority to interfere with, or control the board's legitimate discretion?
3. Is the plaintiff a "person interested" within the meaning of Section 709.07, Revised Code?
4. Has the plaintiff shown a legal capacity to maintain the subject action?
FIRST, must the plaintiff establish irreparable injury to herself in order to obtain the injunctive relief herein prayed for? It is to be noted that the rule limiting injunctions to cases of irreparable injury is but another way of stating that an injunction will not be granted if there is an adequate remedy at law. (See 29 Ohio Jurisprudence 2d 207.)
It is the opinion of this court that Section 709.07, Revised Code, dealing with injunction against annexation, was enacted to do just what it says, namely, to provide the procedure whereby: "* * * any person interested may make application by petition to the Court of Common Pleas praying for an injunction * * *" and, if all matters required in paragraph D (1) and (2) are found to be present by clear and convincing evidence the injunction shall be ordered. It is the further opinion of this court that actions brought under this section are the exception to the general rule of law limiting injunctive relief to cases of irreparable injury. Under this section no claim of irreparable injury need be alleged or proven, and the court so finds.
SECOND, does the court have authority to interfere with, or control, the sound discretion of the Board of Commissioners of Trumbull County, Ohio? The law of Ohio, Chapter 709, Revised Code, has vested in the boards of county commissioners the authority, and has prescribed the procedures, whereby annexation of territory adjacent to a municipality may be accomplished. So long as the commissioners act honestly and in good faith, and keep within the limits of the powers given them by the law, the courts have no authority to interfere with or control their legitimate discretion (See 29 Ohio Jurisprudence 2d 242). This court has no power to substitute its opinion or discretion for that of the Trumbull County Commissioners in matters such as their approval of the annexation petition in question on December 31, 1968, which the law has placed within their control. In the absence of showing that the board abused that legitimate discretion or acted illegally this court has no authority to interfere, and it is so found.
THIRD, is the plaintiff a "person interested" within the meaning of Section 709.07, Revised Code? The court believes that the fourth issue, legal capacity to sue, may be combined with "person interested" for the purpose of discussion. If the plaintiff is such a "person interested," obviously, she has legal capacity to initiate the action in the case at bar.
Plaintiff contends that the more specific provisions supplied by the General Assembly in the amendment to Section 709.07, Revised Code, effective December 1, 1967, which require a petitioner seeking to enjoin presentation of an annexation petition and other papers, to show that:
"D (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 Section 709.032 or 709.033 of the Revised Code, or that the board's decision was unreasonable or unlawful."
are expressive of legislative intent to broaden and enlarge the meaning of the words "any person interested."
The Supreme Court of Ohio in the case of Wachendorf v. Shaver, 149 Ohio St. 231, stated:
"The court must look to the statute itself to determine legislative intent and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used."
The former Section 709.07, Revised Code, contained no directive with respect to a finding by the court of petitioner's showing "by clear and convincing evidence" of both, the adverse effect of; or the error in proceedings of the proposed annexation. Thus, applying the common, ordinary and accepted meaning to the words of the statute, the provisions of the presently effective section appear as obvious limitations, rather than enlargements to the grounds for injunction in annexation proceedings. Furthermore, under this provision, it is not enough to show one of the grounds, the court must now find "all of the following by clear and convincing evidence." Which is so say, that, unless all of the matters set forth in (1) and (2) of paragraph D, Section 709.07, Revised Code, are found by the court, the petition to enjoin the annexation in question shall be dismissed.
Accordingly, there is no reason to believe that previous court interpretations of the words "any person interested" have been modified by the 1967 amendments.
In the case of Markos v. Cain, 78 Ohio Law Abs. 560, the court held, paragraph 1 of the headnotes:
"Every annexation subtracts considerable taxable property from one area and adds it to another and such fact, in and of itself, does not make plaintiff, a resident of the township but not of the area sought to be annexed, a `person interested' within the meaning of Section 707.11, Revised Code."
And further, in paragraph 3 of the headnotes, the court held:
"To qualify as a `person interested' * * * one's rights must be affected substantially, but not remotely, by the annexation itself and such requirement is not met solely by one's interest in a proposed incorporation of a larger area of which the area sought to be annexed is a part." See, also, Branson v. Cain, 76 Ohio Law Abs. 21, Schurtz v. Cain, 75 Ohio Law Abs. 132, and McClintock v. Cain, 74 Ohio Law Abs. 554.
It is the opinion of this court that legislative intent, with respect to annexation of property by a municipality, is to protect, as a property right of a resident freeholder, freedom of choice as to the governmental subdivision in which he desires his property to be located. Having given this choice to resident freeholders it follows that the same intent is to exclude nonresident taxpayers as "interested" persons. Accordingly, this court finds that the plaintiff herein, being a resident of the township but not of the area sought to be annexed, is not a "person interested" within the meaning of Section 709.07, Revised Code.
FOURTH, having determined that the plaintiff is not a "person interested" in the subject annexation it follows that she does not have legal capacity to sue, nor is she a proper party plaintiff in the instant case, and this court so finds.
For the foregoing reasons the court finds defendants' motion to dismiss plaintiff's petition and to dissolve the stay of proceedings order of July 8, 1969, is well taken and should be sustained.
The granting of defendants' motion, being dispositive of this case, no useful purpose can be served by further discussion of the other matters raised by the evidence and testimony adduced during the trial of this cause.