State ex rel. Albright v. Court of Common Pleas of Delaware County

• Decision Date: 29 May 1991
• Docket Number: No. 90-1636,90-1636
• Citation: 60 Ohio St.3d 40,572 N.E.2d 1387
• Parties: The STATE, ex rel. ALBRIGHT et al., v. COURT OF COMMON PLEAS OF DELAWARE COUNTY et al.
• Court: Ohio Supreme Court

Page 40

60 Ohio St.3d 40

572 N.E.2d 1387

The STATE, ex rel. ALBRIGHT et al., v. COURT OF COMMON PLEAS OF DELAWARE COUNTY et al.

No. 90-1636.

Supreme Court of Ohio.

Submitted Feb. 5, 1991.

Decided May 29, 1991.

Lucas, Prendergast, Albright, Gibson & Newman, Robert E. Albright, Rankin M. Gibson and Richard C. Brahm, Columbus, for relators.

Lane, Alton & Horst, Jack R. Alton and John A. Fiocca, Columbus, for respondents Delaware County Court of Common Pleas and its judges.

W. Duncan Whitney, Pros. Atty., for intervening respondent Delaware County Bd. of Com'rs.

PER CURIAM.

For a writ of prohibition to issue the respondent must be about to exercise judicial or quasi-judicial power, the exercise of that power must be unauthorized by law, and refusal of the writ must result in injury for which no other adequate legal remedy exists. State, ex rel. Lewis v. Warren Cty. Court of Common Pleas (1990), 52 Ohio St.3d 249, 556 N.E.2d 1184.

Respondents argue for dismissal on grounds that a common pleas court has authority to determine its own jurisdiction and appeal is an adequate remedy at law, citing State, ex rel. Mansfield Tel. Co., v. Mayer (1966), 5 Ohio St.2d 222, 34 O.O.2d 428, 215 N.E.2d 375, and State, ex rel. Heimann, v. George (1976), 45 Ohio St.2d 231, 74 O.O.2d 376, 344 N.E.2d 130. However, in Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 562 N.E.2d 125, we held in the syllabus that "[w]hen a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction," overruling Mansfield Tel. Co. to the extent that it was inconsistent.

Relators argue that R.C. Chapter 709, supplemented by our decision in Lewis, supra, fixes exclusive jurisdiction to consider annexation matters in the county in which the hearing takes place. We agree and therefore find that the respondent court has no jurisdiction to consider the matter set forth in the pending declaratory judgment/injunction action. Accordingly, we overrule respondents' motions to dismiss the complaint, and grant a peremptory writ of prohibition prohibiting respondents from proceeding in that case.

R.C. Chapter 709 establishes the procedures for considering and challenging annexation petitions. R.C. 709.02 provides in part:

"The owners of real estate adjacent to a municipal corporation may, at their option, cause such territory to be annexed thereto, in the manner provided by sections 709.03 to 709.11 of the Revised Code. Application for such annexation shall be by petition, addressed to the board of county commissioners of the county in which the territory is located * * *."

In the instant case, the territory sought to be annexed is located in two counties. This invokes R.C. 709.11, which provides in part:

"When the territory sought to be annexed to a municipal corporation is partly in the county in which such municipal corporation is situated and partly in another county, the annexation proceedings shall be in that county in which there is the largest number of qualified voters residing in the territory sought to be annexed."

Thus, these two sections plainly establish the jurisdiction of a single board of county commissioners to hear an annexation petition. R.C. 709.03 through 709.033 prescribe the procedures for conducting the hearing and approving or disapproving the annexation petition, and R.C. 709.07 provides for enjoining the annexation, after the hearing, if the board approves it. Lewis, supra, held that the court of common pleas of the county in which the hearing takes place has exclusive jurisdiction over these injunction actions.

Thus, we hold that R.C. Chapter 709, taken as a whole and supplemented by Lewis, evinces a legislative intent to make jurisdiction of annexation proceedings, including injunction actions thereafter, exclusive in the county where the territory to be annexed is located, or if located in more than one county, where the majority of qualified voters reside. In this case, the...