State, ex rel. Dublin, v. Delaware Cty. Bd. of Commrs.

• Decision Date: 09 October 1991
• Docket Number: No. 90-2394,90-2394
• Citation: 62 Ohio St.3d 55,577 N.E.2d 1088
• Parties: The STATE, ex rel. CITY OF DUBLIN, v. DELAWARE COUNTY BOARD OF COMMISSIONERS et al.
• Court: Ohio Supreme Court

Page 55

62 Ohio St.3d 55

577 N.E.2d 1088

The STATE, ex rel. CITY OF DUBLIN, v. DELAWARE COUNTY BOARD OF COMMISSIONERS et al.

No. 90-2394.

Supreme Court of Ohio.

Submitted June 4, 1991.

Decided Oct. 9, 1991.

SYLLABUS BY THE COURT

Pursuant to R.C. 503.07, a board of county commissioners must comply with a municipal petition for a change of township boundaries in order to make those boundaries conform, in whole or in part, to the limits of the municipality.

Relator, the city of Dublin, Ohio, commenced an action in mandamus in this court requesting that a writ issue compelling respondents, the Delaware County Board of Commissioners ("board") and its commissioners, to change the boundaries of Concord Township to make them identical to the municipal limits of Dublin, i.e., to remove that portion of Concord Township included within the municipal limits of Dublin and place it in Washington Township. Relator asserts that, since it had passed Ordinance No. 69-90, petitioning the board to make that change, respondents had a clear legal duty to accept the petition, there being no discretion to do otherwise.

Stephen J. Smith, Law Director, Hilliard, Mitchell H. Banchefsky, Bricker & Eckler, James S. Monahan, Rebecca C. Princehorn and Diane M. Signoracci, Columbus, for relator.

W. Duncan Whitney, Pros. Atty., for respondents.

Teaford, Rich, Belskis, Coffman & Wheeler, and Jeffrey A. Rich, Columbus, for intervening respondents Concord Tp. Trustees.

JOHN W. McCORMAC, Judge.

The primary and controlling issue is whether the Ohio General Assembly has authorized a municipality to order a board of county commissioners to alter township boundary lines under the circumstances of this case.

The city of Dublin is a municipal corporation whose boundaries include land in three counties and four townships as follows: Perry Township in Franklin County, Washington Township in Franklin County, Jerome Township in Union County, and Concord Township in Delaware County. None of these townships is located wholly within the city of Dublin.

On June 16, 1990, the Dublin City Council passed Ordinance No. 69-90 to petition the board for a change of township lines of Concord Township to remove the area included within the corporate limits of the city of Dublin from Concord Township so that it could be placed in Washington Township pursuant to R.C. 503.07 and related sections. Washington Township is the largest township within the city limits of Dublin.

A similar ordinance was adopted and submitted to the Franklin County Board of Commissioners, which accepted the petition and ordered the boundaries of Washington Township enlarged to include the part of Concord Township which is located within the city of Dublin.

Dublin argues that R.C. Chapter 503, generally, and R.C. 503.07, specifically, impose a mandatory duty on the Delaware County Commissioners to alter the boundaries of Concord Township in order to conform them to the municipal limits of Dublin, since the city of Dublin duly petitioned the board to make that change. The Delaware County Commissioners and Concord Township Trustees, intervenors herein, argue that the board is vested with discretion to make that decision and, alternatively, that even if the duty is mandatory it cannot be performed because it would amount to an illegal act. In support of these contentions, the board and Concord Township argue that a single township cannot be extended beyond county boundaries, and that a residents' petition is the only method whereby a township's boundaries may be altered. The board further maintains that the city of Dublin must simultaneously petition all counties for all townships within its city limits in order to change township boundaries.

R.C. 503.07 provides:

"When the limits of a municipal corporation do not comprise the whole of the township in which it is situated, or if by change of the limits of such corporation include territory lying in more than one township, the legislative authority of such municipal corporation, by a vote of the majority of the members of such legislative authority, may petition the board of county commissioners for a change of township lines in order to make them identical, in whole or in part, with the limits of the municipal corporation, or to erect a new township out of the portion of such township included within the limits of such municipal corporation. The board, on presentation of such petition, with the proceedings of the legislative authority authenticated, at a regular or adjourned session, shall upon the petition of a city change the boundaries of the township or erect such new township, and may upon the petition of a village change the boundaries of the township or erect such new township." (Emphasis added.)

The threshold question is whether, pursuant to R.C. 503.07, a board of county commissioners must comply with a municipal petition for a change of township boundaries in order to make those boundaries conform, in whole or in part, to the limits of the municipality or whether it is vested with the discretion to reject the petition.

The plain language of R.C. 503.07 leads clearly to the conclusion that when a proper municipal petition has been presented to the board of county commissioners it must accept it and change the township boundaries accordingly. R.C. 503.07 states that, upon the submission of a petition by a city, the board "shall" alter the boundaries; only in the case of a village petition is the permissive term "may" used. The conclusion that the board's action upon the city's petition is ministerial in nature, without any discretion, is further buttressed by those legislative enactments which preceded enactment of R.C. 503.07 as it presently reads.

The original Act for the Incorporation of Townships was passed in 1853, two years after the Constitution of 1851 was adopted. Section 2 of the Act imposed a duty on the part of the board of county commissioners to accept a petition for a township boundary change. 51 Ohio Laws 489. However, a township boundary change could be made only upon the petition of " * * * a majority of the householders residing within the boundary of such proposed change * * *." Id. Municipalities were not given similar powers to petition the county. The law regulating changes in township boundaries remained virtually unchanged until 1869, when the first comprehensive municipal code was enacted. 66 Ohio Laws 149.

The Municipal Code of 1869 substantially altered the then-existing law to provide for a change in township boundaries by municipal petition. See Section 480, 66 Ohio Laws 149, 230. The original method for changing boundaries by residents' petition was retained but not included in the chapter dealing with municipal powers and duties. Therefore, it is apparent that in 1869 the General Assembly recognized two distinct methods to institute a change in township boundaries. The residents of a township retained the power of petition and a municipality was granted a new right to institute its own petitions. When addressing the duty of a board of county commissioners in regard to petitions, the legislature used two different standards. In regard to a residents' petition, the mandatory term "shall" was used, thereby removing any discretion from the commissioners' function. On the other hand, in regard to a municipal petition, the permissive term "may" was used, thereby giving the commissioners discretion to accept such petition.

In 1880, when the statute laws of Ohio were revised and consolidated, the two boundary change methods appeared in the same Revised Statutes chapter. Changes by residents' petition appeared at Section 1377, Chapter 2 of Title X, and changes by municipal petition appeared at Section 1380, Chapter 2. In 1910, when the general statutes were revised and recodified into the General Code, the consolidation of the two boundary change methods into the same chapter was retained. Changes by residents' petition appeared at Section 3245, Chapter 1, Division II of Title XI, and changes by municipal petition appeared at Section 3249 of the same chapter. Both sections at the times of these revisions were worded in permissive terms, thereby vesting the commissioners with final discretion regardless of the method of initiation.

Subsequently, G.C. 3245 was recodified into R.C. 503.02, which remains largely unchanged from its 1910 version. G.C. 3249 became R.C. 503.07, but this section was dramatically altered in 1961. (129 Ohio Laws 1300.) The 1961 amendment to R.C. 503.07, when speaking of the commissioners' duty on presentment of a municipal petition, deleted the permissive term "may" and inserted the mandatory "shall." Additionally, a provision was inserted allowing villages to petition for a change in township boundaries. The clause pertaining to village petitions was couched in permissive language, thereby vesting commissioners with discretion over these petitions only. The 1961 version of R.C. 503.07 remains the latest legislative enactment on this subject.

To summarize, the legislative history of R.C. 503.07 establishes that township boundary changes have been the subject of extensive legislative consideration. Initially, the power to institute changes was vested solely in the township residents. Subsequently, municipal corporations were given coextensive power to initiate changes. This municipal power was, at first, subject to the discretion of the county commissioners of the county in which the land was located. In 1961, the General Assembly chose to divest the county commissioners of this discretion by amending R.C. 503.07 to require the commissioners...