Eighth & Walnut Corp. v. Public Library of Cincinnati

• Decision Date: 14 December 1977
• Citation: 11 O.O.3d 128,57 Ohio App.2d 137,385 N.E.2d 1324
• Court: Ohio Court of Appeals
• Parties: , 11 O.O.3d 128 EIGHTH & WALNUT CORPORATION et al., Appellants, v. The PUBLIC LIBRARY OF CINCINNATI and Hamilton County et al., Appellees. *

Page 137

57 Ohio App.2d 137

385 N.E.2d 1324, 11 O.O.3d 128

EIGHTH & WALNUT CORPORATION et al., Appellants, v. The PUBLIC LIBRARY OF CINCINNATI and Hamilton County et al., Appellees. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Dec. 14, 1977.

Syllabus by the Court

The power of a city to condemn property is limited and where no hearing is granted, in an action to determine the lawfulness of an eminent domain proceeding, to have evidence introduced bearing upon the purposes behind the condemnation action, the judgment rendered will be reversed.

Beirne & Wirthlin, Cincinnati, for appellants.

Simon L. Leis, Jr., Pros. Atty., and Arthur M. Ney, Jr., Cincinnati, for appellees, The Public Library of Cincinnati and Hamilton County, and members of the Board of Trustees of the Public Library of Cincinnati and Hamilton County.

John P. Scahill, Cincinnati, for appellee, the city of Cincinnati.

PALMER, Presiding Judge.

This is an action for declaratory judgment under R. C. Chapter 2721, filed by the plaintiffs, owners of business property located at the northwest corner of Eighth & Walnut Streets in downtown Cincinnati, against the Public Library of Cincinnati and Hamilton County (Library), a free public library established pursuant to R. C. 3375.06 its trustees, and the city of Cincinnati, seeking a declaration that the library and its trustees have no authority to acquire the property of the plaintiffs by eminent domain, nor to employ the city of Cincinnati as its agent for such purpose; to declare that the latter has no authority to acquire such property by eminent domain; and for injunctive relief to prevent the defendants from carrying out plans to acquire the property. To this complaint, answers were filed which, Inter alia, denied any want of authority to proceed with a condemnation of the plaintiff's property. In due course, motions for summary judgment were filed by each party, supported by a wealth of exhibits, affidavits, depositions and interrogatories. The trial court denied the plaintiff's motion for summary judgment, but granted that of the defendants " * * * for the reason that Ohio Revised Code Section 719.01(H) and 721.22 clearly provide the statutory authority for the defendant The City of Cincinnati to proceed with the pending appropriation action to acquire the property of the plaintiffs for The Public Library of Cincinnati and Hamilton County."

Plaintiffs bring this appeal from the granting of the summary judgment, asserting in their two assignments of error that the trial court erred in granting defendants' motion and in denying their own when as a matter of law, it is argued, plaintiffs were entitled to a judgment, or alternately, there were genuine issues of material fact which precluded the granting of defendants' motion.

I

We note at the outset our disagreement with the conclusion of the trial court that its judgment for the defendants was dictated or permitted by R. C. 719.01 and R. C. 721.22. The former of these statutes provides, in part:

"Any municipal corporation may appropriate, enter upon, and hold real estate within its corporate limits: * * * (H) For libraries, university sites, and grounds therefor; * * *."

The predicate for this grant of authority, insofar as it relates to libraries, seems to us to lie in the authority of a municipality to establish its Own municipal library pursuant to R. C. 3375.12 Et seq. or R. C. 715.13. These are libraries established by and financed within the municipality, and governed by trustees appointed by the mayor of the municipality. The defendant library is not such a municipal library, however, but is concededly a creature of R. C. 3375.06, a County free public library and a body politic and corporate, capable of exercising all corporate powers as a separate and distinct entity. R. C. 3375.33. It is governed by trustees appointed by the Court of Common Pleas of the county, financed by a county tax levy (among other private and non-municipal public sources), and is wholly distinct from any municipality, including that city in which its property chances to be located. Although authorized to acquire and hold real property including the right to accept a conveyance of land from the county commissioners, R. C. 3375.08, it has itself no powers of eminent domain, nor does the board of county commissioners have such authority on its behalf. ¹ It is, in short, a wholly distinct entity from a municipal free public library.

This being the case, we cannot read into R. C. 719.01 or into R. C. 721.22, the latter of which only authorizes the transfer, lease, or use of municipal property to or by a free public library, the authority to appropriate by condemnation proceedings property directly for the benefit of a county public library. To interpolate this authority into R. C. 719.01(H) would be to find that the defendant city could also appropriate property for transfer to and for the benefit of, say, Harvard University, or any other such private institution, under the grant of appropriation powers "(F)or * * * university sites, and grounds therefor * * *." This obviously was not intended by R. C. 719.01, which enumerates fifteen categories of purposes for which the power of eminent domain may be exercised, all of which involve traditional areas of municipal authority (E. g., improving streets and canals, establishing parks, playgrounds, public offices, prisons, hospitals levees, bridges sewers, etc.) exercised by the municipality directly for the benefit of its citizens. See, for instance, divisions (M) and (N) of this section, which authorize the municipality to appropriate property of private utilities in order to Itself operate, respectively, a municipal waterwork and street railway system. To hold otherwise would involve a wholly unwarranted extension of the power of eminent domain, which remains, despite its frequent application and broader areas of usage in recent times, a power whose statutory expressions are to be strictly construed. City of Cincinnati v. Vester (1930), 281 U.S. 439, 448, 50 S.Ct. 360, 74 L.Ed. 950; Pontiac Improvement Co. v. Bd. of Commissioners (1922), 104 Ohio St. 447, 454-55, 135 N.E. 635.

Nor are we able to avoid the inadequacies of R. C. 719.01 as a statutory authority for the exercise of power contemplated here, by discovering some synergistic qualities at work in the Combination of these two separate entities, the city and the county library, to attempt the desired condemnation, bearing in mind that here the defendant library entered into a contract with the defendant city in which the latter agreed to act as the agent for the former to acquire the land by condemnation and subsequently to transfer it to the library (see Infra Section II). It is true that instances occur where the legislature of this state has authorized a combination of political entities to concur in condemning property for public purposes. Examples have included School district public libraries, ² operated by one board of trustees but with condemnation authority vested in another, and agreements for joint construction between cities or a city and county, R. C. 153.61. Cf., Beal v. Elyria (1971), 26 Ohio Misc. 282, 271 N.E.2d 571. We find no such statutory authority authorizing powers of eminent domain for the joint venture at point here, and none, we conclude, may be assumed by inference.

We, therefore, hold that the trial court erred in relying on R. C. 719.01 and 721.22 as authority for granting summary judgment in favor of the defendants, since these enactments provide no grant of power to municipalities to appropriate property, directly or indirectly, for the purposes of a County free public library. Were this the sole issue before us, our foregoing determination would conclude this appeal. But another issue remains to be examined, since the judgment of a trial court may be right although given for the wrong reason, McCormick v. Haley (1973), 37 Ohio App.2d 73, 77, 307 N.E.2d 34, and another reason, argued alternatively by the appellees, is urged to sustain the judgment appealed from here.

This second issue, which presents the more vexatious of the questions before us, argues that the actions of the city of Cincinnati and its fellow defendants are sustained under the general powers of the city in implementing its urban renewal plans. If this is so, and may be said to be so within the strictures of Civ.R. 56, then the error of the trial court in applying R. C. 719.01 and 721.22 would have been without prejudice to the appellants, and the result reached by the trial court would have been unexceptionable. Whether this is indeed the case is examined next.

II.

Before examining this second issue, a recitation of some of the relevant factual background is essential. Thus, the real property in question, owned by appellants and sought to be condemned by the city of Cincinnati, is located within an urban renewal development plan passed by the city at a time antedating all relevant events recited herein and known as the North Frame of the Central Business District. In December, 1970, the Urban Development Department of Cincinnati promulgated plans for the redevelopment of a subarea within the North Frame, known as the Garfield Place area, an area which included the plaintiffs' property at Eighth and Walnut Streets, and which area was included in 1970 as part of the Neighborhood Development Program. By January 28, 1972, the city's Planning Commission had approved a North Frame document as a general plan, including a provision for the Garfield Place area as a property subarea for urban design planning. On February 16, 1972, the City Council approved the North Frame document, and in early 1972 a Garfield Place Urban Design Plan was approved by the appropriate authorities. The objectives of this plan, as stated by a senior member of the staff of the City Planning Commission in a letter of May 31, 1972, were:

"B. Objectives. Eleven...