State ex rel. City of Niles v. Bernard

• Court: Ohio Supreme Court
• Writing for the Court: Despite the efforts of some respondents, apparently including Fremont Camerino, Arthur Doutt, and Phillip Rickard, Jr., other respondents, apparently including Joseph Cicero, Ralph Infante, and Gevene Sprecacenere have refused to assess, allocate the
• Citation: State ex rel. City of Niles v. Bernard, 53 Ohio St.2d 31, 372 N.E.2d 339, 7 O.O.3d 119 (Ohio 1978)
• Decision Date: 01 February 1978
• Docket Number: No. 77-236,77-236
• Parties: , 7 O.O.3d 119 The STATE ex rel. CITY OF NILES v. BERNARD et al.

Page 31

53 Ohio St.2d 31

372 N.E.2d 339, 7 O.O.3d 119

The STATE ex rel. CITY OF NILES v. BERNARD et al.

No. 77-236.

Supreme Court of Ohio.

Feb. 1, 1978.

On August 11, 1977, a statement of facts was filed with this court by the city of Niles, relator herein, pursuant to the prayer for the issuance of a writ of mandamus in the instant cause, alleging the following:

A plan for Storm Sewer District No. 4 was authorized by Niles City Council Resolution No. 2145, adopted in 1958. Resolution of Necessity No. 2216 was adopted on August 19, 1959. Special assessments, apparently pursuant thereto, were levied in 1962, and equalized in 1964 by an Equalization Board, and postcards were forwarded to property owners in 1964 advising them of the assessments. Objections were filed by property owners, and litigation ensued.

On September 6, 1966, the Court of Common Pleas of Trumbull County consolidated all cases encompassing objections to the assessments, set the assessments aside, and ordered a new assessment be made under court supervision. The court appointed three appraisers, and ordered property owners to be notified when the assessment was made.

The trial court on April 28, 1971, ordered that the assessment filed under its supervision and subsequently equalized be confirmed and ordered to record. Appeal was taken by property owners.

On May 30, 1972, the Court of Appeals for Trumbull

County ruled that the trial court, having set aside the assessments, had no further jurisdiction, and lacked jurisdiction to order a new assessment. The judgment of the trial court was reversed.

Notes of the relator totaling $185,000, held by the Treasury Investment Board, have been issued and reissued. The most recent of these obligations, dated October 12, 1976, remains unpaid, and respondents have made no payment arrangements.

Pursuant to Ordinance No. 48-76, respondents attempted to revoke and forgive all assessments paid or unpaid, and directed the entire expense be met from the Sewer Fund. Pursuant to a referendum petition, Ordinance No. 48-76 was repealed at the general election of November 7, 1976.

Despite the efforts of some respondents, apparently including Fremont Camerino, Arthur Doutt, and Phillip Rickard, Jr., other respondents, apparently including Joseph Cicero, Ralph Infante, and Gevene Sprecacenere have refused to assess, allocate the property owners' and city's shares, authorize payment of the notes pursuant to statute, or to provide for the retirement of debts. Tentative assessment estimates have been prepared by the City Engineer and filed in his office awaiting respondents' actions.

In the instant cause, relator seeks an order directing respondents, as members of the Niles City Council, and the mayor of Niles, to adopt an ordinance approving the estimated assessments on file with the City Engineer; to proceed with the levy of the assessments for Storm Sewer District No. 4; to adopt procedures providing notice to and receive objections from property owners to be assessed; to provide an Equalization Board to equalize assessments objected to; to provide the necessary legislation retiring the notes and debt obligations; and to pass the legislation necessary to pay the Treasury Investment Board for the sum of $185,000, plus interest.

This cause is now before this court pursuant to Section 2(B)(1)(b) of Article IV of the Constitution of Ohio.

Mitchell F. Shaker, City Sol., Niles, for relator and for respondents Fremont J. Camerino, Arthur M. Doutt and Phillip A. Rickard, Jr.

Pfau, Comstock & Springer, and David C. Comstock, Youngstown, for respondents Joseph Cicero, Ralph Infante and Gevene C. Sprecacenere.

Nick A. Bernard, John J. Burke, Anthony R. Corea and Lawrence A. Zachariah, for respondents pro se.

PER CURIAM.

The instant action has been filed with this court pursuant to R.C. 733.58, which provides:

"In case an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance, the solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty." (Emphasis added.)

To demonstrate that he is entitled to a writ of mandamus, a relator must show (1) that he enjoys a clear legal right to the relief for which he prays, (2) that respondent is under a clear legal duty to perform the act demanded by relator, and (3) that he has no plain and adequate remedy in the ordinary course of the law. See State ex rel. Pressley v. Indus. Comm. (1967),11 Ohio St.2d 141, 228 N.E.2d 631, and State ex rel. National City Bank v. Bd. of Education (1977), 52 Ohio St.2d 81, 369 N.E.2d 1200.

R.C. 727.39 provides:

"When it appears to the legislative authority of a municipal corporation that a special assessment is invalid by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal by a court of competent jurisdiction, the legislative authority may order a reassessment whether the improvement has been made or not.

"Proceedings upon a reassessment, and for the collection thereof, shall be conducted in the same manner as is provided for the original...