State v. City of Cincinnati

• Decision Date: 26 March 1895
• Parties: STATE v. CITY OF CINCINNATI.
• Court: Ohio Supreme Court

40 N.E. 508

52 Ohio St. 419

STATE v. CITY OF CINCINNATI.

Supreme Court of Ohio.

March 26, 1895

Original petition in quo warranto, in the name of the state against the city of Cincinnati, to test the validity of certain proceedings for the annexation of countiguous municipal corporations. Judgment for defendant.

The petition alleges that the defendant, which is the only city of the first grade of the first class in this state, has instituted, and is about to carry to completion, proceedings to extend its corporate limits by annexation, so as to include the contiguous villages of Riverside, Westwood Clifton, Avondale, and Linwood, and claims the right to do so, under and by virtue of an act of the general assembly passed April 13, 1893, entitled ‘ An act to authorize cities of the first grade of the first class to annex contiguous municipal corporations of other grades or classes lying within any county containing such cities of the first grade of the first class,’ and an act amendatory thereof, passed April 24, 1893. The first-mentioned act reads as follows:

‘ Section 1. Be it enacted by the general assembly of the state of Ohio: That any city of the first grade of the first class shall have the power to annex to its present corporate limits any contiguous municipal corporation or corporations of other grades or classes situate in the county containing such city of the first grade of the first class, upon compliance with the terms and conditions hereinafter recited.

‘ Sec. 2. That any such city of the first grade of the first class desiring to annex any contiguous municipal corporation or corporations of other grades or classes, lying within the county containing such city shall, by its board of legislation, pass an ordinance declaring such intention and describing the municipal corporation or corporations which it desires to annex; and it shall be the duty of the mayor of such city of the first grade of the first class seeking such annexation, to cause such ordinance to be published once a week for four consecutive weeks in two newspapers published and of general circulation in the county; and if there be any objections to or remonstrances against the proposed annexation the same shall be filed with the clerk of the board of legislation of such city, and the clerk shall present the same at the next regular meeting of such board of legislation; and such board shall hear all objections and remonstrances and finally determine the same by ordinance.

‘ Sec. 3. That if said board of legislation after such hearing determines in favor of such annexation, then the mayor of such city of the first grade of the first class, and also the mayors of the different municipal corporations sought to be annexed, shall each cause their separate proclamations to be issued, as in the case of municipal elections, notifying the qualified voters of their respective municipalities of the time and place of the holding of an election to determine whether such municipalities shall be so annexed. The time for such election shall be fixed by the ordinance of the board of legislation determining in favor of such annexation, and shall be not less than thirty days after the passage of such ordinance. Before such annexation shall be deemed to have carried, it shall have received a majority of all votes cast upon such proposition. Such election shall be conducted in the same manner as is now by law provided for the conduct of municipal elections in such cities and municipal corporations, respectively, except that no additional registration shall be required. The form of the ballots to be used at such election shall be determined by the board of elections of such county.

‘ Sec. 4. That it shall be the duty of the judges of election to return the result to the board of elections for such county, and it shall be the duty of such board to ascertain the result of such election and certify the same to the secretary of state and to the board of legislation of the city seeking the annexation.

‘ Sec. 5. That if such election shall have resulted in favor of such annexation, it shall be the duty of the mayor of such city to whose limits are to be so attached such municipality or municipalities, to immediately notify the court of common pleas of the county containing such city of the result of such election, and thereupon such court shall appoint three commissioners, who shall be residents of such county. And such commissioners shall be sworn in by the judge of such court to faithfully, honestly and impartially discharge their duties, and such commissioners' compensation shall be fixed by such court, and the same shall be paid out of the general fund of the treasury of the city making such annexation, upon vouchers to be issued by the mayor of such city.

‘ Sec. 6. That it shall be the duty of such commissioners to make a full and detailed account of the indebtedness due by each municipality so annexed and of the several school districts affected by such annexation; that they shall also report what number of bonds or other evidences of debt have been issued by each corporation, and of the several school districts. That such commissioners, in connection with the sinking fund trustees of such city of the first grade of the first class, shall arrange the terms and conditions for the final annexation of such municipalities, and report the same to said court. That whenever their report shall have been so made and approved by the court such annexation shall be deemed complete.

‘ Sec. 7. That if any municipality so annexed shall complain in writing, that the terms and conditions for such annexation are unjust and unfair in whole or in part towards its interests, such corporation or corporations shall have the same heard by the court appointing such commissioners. That such court shall have the power to modify such report, if in its judgment the conditions and terms are unfair to the interest complaining, but shall not have the right to set aside the annexation of such municipality or municipalities to such city. That neither an appeal nor writ of error shall be allowed to reverse or set aside such final decree of the court.

‘ Sec. 8. That whenever the terms and conditions of such annexation shall have been completed, the commissioners herein designated shall file a transcript of such terms and conditions with the recorder of such county, and also transmit a certified copy of the same to the secretary of state, and the same shall be by such secretary recorded in his said office. And thereafter such territory and municipalities so annexed shall be governed by the respective boards and officers of such city annexing the same. Upon such annexation, the board of legislation shall by ordinance provide for the division of such annexed municipality or municipalities into wards, and thereafter members of the board of legislation and members of the board of education of a school district affected by such annexation shall be elected in the even and odd numbered wards, respectively whenever members of said boards for the even and odd numbered wards, respectively, are elected in the city and school district to which such annexation is made; provided, that at the first annual municipal election held after such annexation members for the ward in such annexed territory shall be chosen for one or two years, as the case may require, so that the terms expire whenever terms of existing members in odd and even numbered wards, respectively, expire.

‘ Sec. 9. That all officers and boards created for the government of the different municipal corporations so annexed to such city existing before such annexation, and of the several school districts in the territory and municipal corporations so annexed shall be abolished whenever such annexation is complete; and the title to all real estate and property of all description heretofore vested in such municipal corporations so annexed, and in the several school districts so annexed, shall be by this act transferred to such annexing city and school district of such city respectively.

‘ Sec. 10. That all acts or parts of acts inconsistent with the provision of this act are hereby repealed.

‘ Sec. 11. This act shall take effect and be in force from and after its passage.’

The amendatory act re-enacts the first section, omitting the word ‘ present,’ and makes no other change in the statute.

The petition avers that the foregoing statutes are unconstitutional, and that the defendant, in proceeding to make the annexation, is exercising a franchise not conferred on it by law. It is further averred that the proceeding is not in conformity with the statute, in that at the election held under its provisions the question of the annexation of all of the villages named was submitted as the only one to be voted upon, when, it is claimed, each village should have been allowed to vote upon the question of its annexation, and a majority of the votes cast by its electors is necessary to authorize its annexation; and, furthermore, the election was called and held in each of the villages of Riverside Clifton, and Linwood, against the protest of their respective municipal authorities. A large majority of the aggregate vote cast was in favor of the annexation of all the villages, and a majority of the vote cast in Cincinnati and in each of the villages was in favor of it, except that cast in Clifton where the majority was against annexation. The petition prays that the defendant be required to show by what authority it is exercising the right claimed, and that it be ousted therefrom. The defendant pleads the statutes referred to in justification of its action, alleging that the proceeding had, up to the time of the filing of the petition, has been regular,...