Hugger v. City of Ironton

• Decision Date: 12 August 1947
• Citation: 83 Ohio App. 21,82 N.E.2d 118
• Parties: HUGGER v. CITY OF IRONTON et al.
• Court: Ohio Court of Appeals

82 N.E.2d 118

83 Ohio App. 21

HUGGER v. CITY OF IRONTON et al.

Court of Appeals of Ohio, Fourth District, Lawrence.

August 12, 1947

Syllabus by the Court.

1. A sale of real estate by a municipality is a proper exercise of the power of local self-government granted by Section 3 Article XVIII, Constitution.

2. The qualification of Section 3, Article XVIII, Constitution as to regulations of a municipality not being in conflict with general laws, has no application to a municipal ordinance properly enacted within the power granted under that section.

3. A city, having a city manager plan of government, which city has not made the provisions of the General Code a part of its basic law, does not act arbitrarily and with abuse of discretion in selling, by ordinance, land to the federal government for a consideration of $10, fire protection for such city and the erection on such land of a building of approximately $25,000 value, without complying with the provisions of Section 3699, General Code, requiring the letting of a contract for the sale of municipal real estate to the highest bidder after advertisement.

Appeal dismissed, 76 N.E.2d 397, 148 Ohio St. 670.

Pratt & Crowe, of Ironton, for appellant.

A J. Layne and F. A. Ross, both of Ironton, for appellees.

METCALF Judge.

The city of Ironton, having a 'city manager plan' of government, by ordinance duly adopted, sold, executed and delivered to the United States Department of Agriculture, Forestry Service, an 8.4-acre tract of unimproved land for the nominal sum of $10. In addition to the consideration mentioned in the deed, it is claimed by the city, as shown by the record, that the purchaser is to furnish fire protection to a large area of forest land adjacent to and within the corporate limits of the city. And there is the further consideration that a building is to be erected on the premises sold of approximately the value or expenditure of $25,000.

The plaintiff in the instant case, by way of amended petition, alleges that the defendant, the city of Ironton, by such act, violated Section 3699, General Code, and its kindred sections. Section 3698, General Code, authorizes municipalities to sell or lease real property not needed for any municipal purpose.

Section 3699, General Code, reads as follows:

'No contract for the sale or lease of real estate shall be made unless authorized by an ordinance, approved by the votes of two-thirds of all members elected to the council, and by the board or officer having supervision or management of such real estate. When such contract is so authorized, it shall be made in writing by the board or officer having such supervision or management and only with the highest bidder, after advertisement once a week for five consecutive weeks in a newspaper of general circulation within the corporation. Such board or officer may reject any or all bids and re-advertise until all such real estate is sold or leased.'

It is plaintiff's contention that the deed executed in conformity with the action of council is null and void, and is a cloud on the title of the real estate, and he asks that the same be declared null and void and that certain defendants, the county auditor and county recorder, be enjoined from transferring and recording the deed of conveyance.

All the defendants answered, except the United States Department of Agriculture, Forestry Service, admitting all the pertinent facts alleged in the amended petition except the claim that the ordinance authorizing the execution and delivery of the deed was unauthorized by law. The city sets up its claim to a further consideration as hereinabove noted in addition to the nominal sum set forth in the deed and alleges further that the real estate is not needed for municipal purposes. Plaintiff's reply to this answer denies all facts alleged that are not admissions of the allegations in the amended petition.

On the issues joined, trial was had and the Common Pleas Court found in favor of the defendants, and dismissed plaintiff's petition, from which judgment plaintiff appeals to this court on questions of law and fact.

While it is not necessary to the disposition of the case before us, perhaps it is well to state that, prior to the sale out of which this action grew, the city of Ironton did by ordinance and by advertising offer the tract for sale as provided by Section 3699, General Code, hereinabove set out and that when the bids were opened it was found that the United States Department of Agirculture, Forestry Service, had bid the sum of $5 and that plaintiff herein had bid the sum of $1,500 for the tract of land in question and thereupon the city rejected both bids.

Both sides to this controversy rely upon Section 3 of Article XVIII of the Constitution of Ohio, adopted in 1912, and known as part of the home-rule amendment. That section of the constitution reads:

'Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'

Plaintiff urges that to permit the city of Ironton to sell and convey real estate without complying with Section 3699, General Code, supra, is in direct violation of the home-rule amendment hereinabove quoted in that the ordinance permitting the sale in the instant case is in conflict with general laws. The city on the other hand maintains that, since the adoption of the home-rule amendment, Ironton not being a charter city which has adopted the general laws of the state as a part of its charter, it has full power to exercise all powers of local self-government and that the sale of the real estate is in no way in conflict with the general laws of Ohio.

As was pointed out by the trial court in the instant case and held in many cases, Section 3 of Article XVIII consists of two sentences, the first of which gives to municipalities all powers of local self-government without any qualifications or reservations. The second sentence authorizes municipalities to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws. In other words, the qualification as to any regulation not being in conflict with general laws applies only to the adoption and enforcement of local police, sanitary and other similar regulations. It follows that the sale of real estate by a municipal corporation, not being the adoption or enforcement of any act connected with local police, sanitary and other similar regulations, is a proper exercise of the power of local self-government granted by the home-rule amendment of the Constitution of the state of Ohio. The fact that part of the consideration claimed by the city is the assistance of the forestry service in fire prevention does not bring the action of the city council within the regulation of local police power or other regulations mentioned in the second sentence of Section 3, Article XVIII, supra. Prior to the adoption of this amendment it was imperative that a city in disposing of real property comply strictly with the General Code as announced in Sections 3698 and 3699, supra, and the prior enactments because it was from the Legislature only that a city derived its power to sell real property. Since the adoption of the amendment, however, a city which has not made the provisions of the General Code a part of its basic law, by way of charter or otherwise, is not compelled to follow those sections of the General Code.

Plaintiff urges that the case of State ex rel. Zielonka v. Carrel, 103 Ohio St. 50, 132 N.E. 161, is decisive of the issue in this case because there the city of Cincinnati, a charter city, had followed Sections 3698 and 3699, General Code, in disposing of certain real estate. An examination of that case shows that the only question before the court was as to the right of the city to pay an auctioneer for crying the sale and the court held it did not have such right for the reason that a public official was duly charged with that duty. The city of Cincinnati followed the above sections of the General Code because its charter, in force and effect at that time, adopted the general and all local or special laws enacted by the General Assembly of the state of Ohio, then in force relating to the organization of municipal governments not otherwise in its charter provided.

The supplemental brief filed by counsel for plaintiff urges that the provision can have no force and effect because the power of municipalities as to local self-government stems directly from the Constitution and is a continual flow of power and cannot be limited by the people of the city at one moment as against the future actions of any council. The obvious answer to this is that if a city, having a charter that has adopted the general and special laws of the state respecting municipalities as a part of the basic law of the city, at some future time desires to exercise this continual flow of power from the Constitution, all the city has to do is to amend its charter in that respect. See Section 7, Article XVIII of the Ohio Constitution.

It is necessary to keep in mind that the city of Ironton has a city manager form of government, a plan of government...