Eggers v. Morr

• Decision Date: 09 February 1955
• Docket Number: No. 33961,33961
• Citation: 162 Ohio St. 521,124 N.E.2d 115
• Parties: , 55 O.O. 417 EGGERS et al., Appellees, v. MORR et al., County Com'rs et al., Appellants.
• Court: Ohio Supreme Court

Page 521

162 Ohio St. 521

124 N.E.2d 115, 55 O.O. 417

EGGERS et al., Appellees, v. MORR et al., County Com'rs et al., Appellants.

No. 33961.

Supreme Court of Ohio.

Feb. 9, 1955.

Syllabus by the Court.

1. Where an administrative agency has jurisdiction to make an order in a matter pending before it, and a right of appeal from such order to the Court of Common Pleas is provided by law to any person adversely affected thereby, such person is not authorized to bring an independent action in equity to enjoin the carrying out of such order, where the grounds relied upon in seeking the injunction are such as could be fully litigated in the appeal authorized by law.

2. Mere inconvenience in complying with the necessary steps in taking such an appeal does not constitute an excuse for resorting to an independent action for an injunction in lieu of taking the appeal. On June 10, 1953, appellees, hereinafter designated plaintiffs, instituted an action in equity in the Court of Common Pleas of Hamilton County against appellants.

In their amended petition plaintiffs allege that each of them is an owner of residential property located in the unincorporated area of Sycamore Township in Hamilton County; that the defendants are the duly elected and acting county commissioners of Hamilton County and the building inspector thereof; that the action is brought in behalf of plaintiffs and many others similarly situated, pursuant to Section 3180-36, General Code; that plaintiffs' residences are approximately 15 miles from the city of Cincinnati, where their attorney has his office; that due to the numerous persons involved and the nature of the case it was impossible for them to prepare their petition, following the order of the county commissioners referred to hereinafter, prior to the date of the commencement of the action; and that to require plaintiffs to file their petition within ten days from the date of the order of the county commissioners would constitute an undue hardship upon plaintiffs and deny them due process of law.

Plaintiffs allege further that in the year 1948 the Hamilton County Rural Zoning Commission conducted a field survey of all the unincorporated territory in the county, and that as the result of such survey the commission found a then existing necessity of zoning such unincorporated area as being the only means available to protect property owners against the harmful effects of use of neighboring property, whereupon the county commissioners passed a zoning resolution on August 10, 1949, which was submitted to the voters of the townships and was favorably voted upon by the voters of Sycamore Township.

As part of the zoning resolution a zone map of the county was adopted, dividing the county and townships into districts, including residential A, residential B, residential C, retail business D, light industry F, heavy industry G, and resort H.

On December 20, 1952, an application for zone change was filed with the zoning commission, seeking a change of property, containing 134 acres, from the original classification of residential A, B, and C to industrial G, which application gave as a reason for the requested change, 'lack of sufficient land in the county which was zoned industrial.'

Hearings were held in accordance with law, and the application came before the county commissioners with recommendations from the zoning commission and the Hamilton County Regional Planning Commission of the change requested.

On May 19, 1953, a hearing was held on the application by the county commissioners, and on May 26, 1953, they passed a resolution entitled, 'Zoning Amendment No. 30,' approving the change of zoning from residential A, B, and C to industrial G.

The plaintiffs allege further that the county commissioners acted arbitrarily and capriciously in that the zoning amendment states no facts upon which the county commissioners reached their conclusion, and that, unless the court intervenes, the zoning amendment will become effective on June 25, 1953, and the defendant county building inspector will issue building permits permitting the erection of industrial-type buildings on the 134-acre tract.

The plaintiffs allege further that the use of these premises for industrial purposes will result in great congestion of population, increased traffic problems, overcrowded schools, destruction of the privacy of plaintiffs' property, creation of noise and confusion in what is now a quiet and peaceful community, lessening of property values, and great harm to the county zoning plan and property owners; that the order of the county commissioners violates Section 1, Article I of the Constitution of Ohio, and Section 1, Article XIV of the Amendments to the Constitution of the United States, in that 'the Board of County Commissioners acted arbitrarily and unreasonably, and solely to meet the demands made upon it by those who contended that the passage of said resolution was necessary to raise additional funds for the township schools; and further said resolution is unreasonable and not a proper exercise of the police powers, in that it denies to persons thereby the equal protection of the laws and has no reasonable relation to public health, safety and welfare of said local community and the entire county.'

Plaintiffs allege further that they have no adequate remedy at law and pray that the resolution be held unconstitutional and void and that an injunction be granted to prevent its enforcement.

Defendants filed a demurrer to the amended petition upon three grounds:

1. The court has no jurisdiction of the subject matter of the action.

2. The action was not brought within the time limited for the commencement of such action.

3. The petition does not state facts which show a cause of action.

The Court of Common Pleas sustained the demurrer, and, plaintiffs having failed to plead further, that court, upon motion, dismissed the amended petition.

An appeal on questions of law was perfected to the Court of Appeals which, finding in its journal entry that there was error upon the face of the record to the prejudice of plaintiffs in that the Court of Common Pleas erred in sustaining the demurrer and in dismissing the amended petition, reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings.

The cause is before this court upon the allowance of a motion to certify the record.

C. Watson Hover, Prosecuting Atty., William J., Schmid and Carl B. Rubin, Cincinnati, for appellants.

Matthews & Matthews, Cincinnati, for appellees.

STEWART, Judge.

There is but one question of law presented to us for decision, to wit, is the amended petition demurrable?

From its face, the amended petition obviously was filed pursuant to the provisions of Section 3180-11, General Code, Section 303.12, Revised Code, which are as follows:

'Amendments or supplements to the zoning resolution may be made in the same manner and for the same purposes provided in this act for the adoption of the original resolution, except that such amendments or supplements may be made without submitting them to a vote of the electors, unless within thirty days after the adoption of the amendment or supplement there is presented to the board of county commissioners a petition, signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan and affected by the amendment or supplement equal to not less than 8% of the total vote cast for all candidates for governor in such area at the last preceding general election at which a governor was elected, requesting the board of county commissioners to submit the amendment or supplement to the...