Chadwell v. Cain

• Decision Date: 08 July 1959
• Docket Number: 35763,35786,Nos. 35653,35785,s. 35653
• Citation: 169 Ohio St. 425,160 N.E.2d 239
• Parties: , 8 O.O.2d 449 CHADWELL, Appellant, v. CAIN, Clerk, Appellee. MARTIN, Jr., Appellant, v. FLICK, Director of Finance, et al., Appellees. D. H. WILLEY LUMBER CO., Appellant, v. FLICK, Director of Finance, et al., Appellees. WILLEY et al., Appellants, v. FLICK, Director of Finance, et al., Appellees.
• Court: Ohio Supreme Court

Page 425

169 Ohio St. 425

160 N.E.2d 239, 8 O.O.2d 449

CHADWELL, Appellant, v. CAIN, Clerk, Appellee.

MARTIN, Jr., Appellant, v. FLICK, Director of Finance, et al., Appellees.

D. H. WILLEY LUMBER CO., Appellant, v. FLICK, Director of Finance, et al., Appellees.

WILLEY et al., Appellants, v. FLICK, Director of Finance, et al., Appellees.

Nos. 35653, 35763, 35785, 35786.

Supreme Court of Ohio.

July 8, 1959.

Syllabus by the Court.

1. In the absence of statutory provisions to the contrary, a signer of a petition for annexation of territory to a city or village has a right to withdraw his name from such petition at any time before official action has been taken thereon. State ex rel. Kahle v. Rupert, 99 Ohio St. 17, 122 N.E. 39, approved and followed.

2. In such an annexation proceeding, affirmative administrative action by a Board of County Commissioners such as the adoption of a formal order fixing a date of public hearing and directing notification to the agent of the petitioners as to such time and place of hearing taken after a determination by preliminary procedures that it has jurisdiction of the petition, which action is essential to the statutory processes of granting or denying such petition, constitutes 'official action' by such board.

3. After such official action has been taken, the matter of permitting withdrawals or additions of signatures to such petition lies within the discretionary power of the Board of County Commissioners.

Cause No. 35653 was originated in the Court of Common Pleas of Franklin County as an action to enjoin the defendant, Cain, City Clerk of the city of Columbus, from forwarding to the city council the transcript of the proceedings of the Board of County Commissioners of Franklin County approving the annexation to the city of approximately 84 acres in Miffin Township. The proceeding before the Board of County Commissioners was initiated by the filing of a petition signed by 16 resident adult freeholders living in territory proposed to be annexed. Although the petition before the board stated that 19 adult freeholders resided in the territory, there were admittedly 21 such freeholders.

Upon receipt of the petition on April 20, 1956, the board on April 24, 1956, adopted a formal order (1) directing that the petition be filed with the county auditor, (2) fixing the date of public hearing as June 26, 1956, and (3) directing notification of the agent of the petitioners as to the time and place of hearing. Later, the date of hearing was postponed to August 14, 1956.

After April 24 and before August 14, signers withdrew their signatures (some of whom withdrew their withdrawals) in such numbers as to leave the petition signed by ten freeholders as of the date of hearing, which was one less than a majority of the adult resident freeholders residing in the territory.

At the time of public hearing before the Board of County Commissioners, the withdrawals were disregarded and the annexation was approved.

The Court of Common Pleas denied the injunction which was sought and the Court of Appeals affirmed the decision of the lower court.

Causes Nos. 35763, 35785 and 35786 were originated in the Court of Common Pleas of Hamilton County by the various plaintiffs as actions to enjoin the defendants, Director of Finance, City Clerk and the city of Cincinnati, from reporting to the council of that city the transcript of the proceedings of the Board of County Commissioners, map and petition, in connection with annexation to the city of a portion of Green Township in said county.

The petition for annexation bearing signatures of 340 adult resident freeholders of the area described therein was filed with the Board of County Commissioners of Hamilton County on July 1, 1955, and on July 5 was referred by that board to the county engineer for checking signatures and description. That officer, under date of July 25, 1955, made a return to the Board of County Commissioners finding that the petition contained valid signatures which represented 55.3 per cent of the resident freeholders of the area for which annexation was sought, and that the descriptions were correct. On July 26, 1955, the Board of County Commissioners set the petition for annexation for public hearing on October 11, 1955. At the hearing, certain withdrawals of signatures and additions thereto presented in the interim between July 26 and October 11 were considered together with the evidence, and the matter was again referred to the county engineer who reported on October 24, 1955, that he found 52.2 per cent of the resident freeholders in the territory proposed for annexation signed on the petition in favor of the annexation. At the October 11 hearing, proponents and opponents of the annexation presented additional signatures supplementing the original petition and seeking withdrawal therefrom, respectively. As of October 24, a further request for the withdrawal of 28 more signatures was submitted, which further request the Board of County Commissioners refused to consider.

On November 19, 1956, a little more than a year later, the petition for annexation was approved and a transcript of the proceedings was forwarded to the Director of Finance of the city of Cincinnati by the Board of County Commissioners of Hamilton County. Before action could be taken by the city council these three causes were instituted in the Court of Common Pleas. They were consolidated for trial in that court, and at their conclusion the petitions for injunction were dismissed.

The Court of Appeals affirmed the judgments of the Court of Common Pleas.

The Franklin County cause and the three Hamilton County causes are before this court on allowance of motions to certify the records, and two of the Hamilton County cases (Nos. 35785 and 35786) are here also on appeals as of right.

James B. Albers, Columbus, for appellant in case No. 35653.

Russell Leach, City Atty., and Alba L. Whiteside, Columbus, for appellee in case No. 35653.

Cowell & Fletcher and Leroux & Weber, Cincinnati, for appellants in cases Nos. 35763, 35785 and 35786.

James W. Farrell, Jr., City Sol., and William A. McClain, Cincinnati, for appellees in cases Nos. 35763, 35785 and 35786.

HERBERT, Judge.

The discretionary power legislatively vested in Boards of County Commissioners in annexation matters has long been recognized in the decisions of this court. A little over 100 years ago in the case of Powers v. County Com'rs of Wood County, 8 Ohio St. 285, Swan, J., stated in the opinion:

'The extent and limits of a municipal corporation depend upon a variety of questions, both of a public and local nature; and among them is involved, sometimes, the private interest of citizens residing near towns who enjoy the benefits without paying the expenses of public improvements; and, on the other hand, the corporate limits of towns are sometimes extended simply to extend unjustly the area of assessments and taxation. The county commissioners are, perhaps, as proper public officers as any other to decide upon the public policy and conflicting interests involved in the determination of the extent and limits of municipal corporations. It is, however, enough to say, that the law has devolved it upon them.'

This fundamental principle was restated by this court in the case of State ex rel. Loofbourrow v. Board of County Com'rs of Franklin County, 167 Ohio St. 156, 146 N.E.2d 721, wherein this court held in the second paragraph of the syllabus that 'the commissioners are still required to exercise their discretion to either allow or deny the petition for annexation.' The Loofbourrow case involved an annexation proceeding initiated by the council of a municipality followed by an election among the electors resident in the affected territory and then a referral to the Board of County Commissioners for final action. In that case, the writer dissented solely because of the belief that in that class of annexation proceedings, where the legislative arm of the municipality initiated the proposal by ordinance and a majority of the voters in the affected territory voted in favor of the annexation, the provision vesting discretion in the Board of County Commissioners was no longer applicable.

In the instant cases, however, there can be no doubt that the discretionary power of the county commissioners is complete, as will appear in the decisions and statutes cited and quoted from herein. The major issue in these cases relates to the sufficiency of signatures to a petition for annexation and the period of time within which a person signing such a petition may withdraw his signature therefrom.

The assignment of error in case No. 35653 (Franklin County) is that the Court of Appeals 'held contrary to law in affirming the judgment * * * and in thereby determining that the petition signatures could not be withdrawn.'

In cases Nos. 35763, 35785 and 35786 (Hamilton County), claims are made that the petition was defective in that the description of the territory was inaccurate, and in that, under the provisions of the petition, the agent of the petitioners was given power to amend the territory proposed for annexation; that Sections 709.02 through 709.09, Revised Code, are unconstitutional in that the petition is to be signed by a majority of the 'adult freeholders residing in such territory' thus excluding corporations and nonresident owners from participation in such proceedings; and, finally, that the petition for annexation did not contain signatures of a majority of the adult freeholders residing in the territory.

First, we will consider the points raised in the Hamilton County cases other than the question of sufficiency of signatures. The contention that the description of the territory sought to be annexed was inaccurate raises an evidentiary question which was disposed of by the trial court and the judgment affirmed by the Court of Appeals. As to the provision in the petition for annexation...