Taylor v. City of London

• Decision Date: 01 March 2000
• Docket Number: No. 99-411.,99-411.
• Citation: 88 Ohio St.3d 137,723 NE 2d 1089
• Parties: TAYLOR ET AL., APPELLANTS, v. CITY OF LONDON, APPELLEE, ET AL.
• Court: Ohio Supreme Court

88 Ohio St.3d 137

723 NE 2d 1089

TAYLOR ET AL., APPELLANTS, v. CITY OF LONDON, APPELLEE, ET AL.

No. 99-411.

Supreme Court of Ohio.

Submitted November 17, 1999.

Decided March 1, 2000.

Lucas, Prendergast, Albright, Gibson & Newman, Robert E. Albright and Jill S. Tangeman, for appellants.

Vorys, Sater, Seymour & Pease, L.L.P., and Bruce L. Ingram; and Monte C. White, London Law Director, for appellee.

Barry M. Byron, Stephen L. Byron and John Gotherman, urging affirmance for amicus curiae Ohio Municipal League.

Porter, Wright, Morris & Arthur and John F. Marsh, urging affirmance for amici curiae MTB Corp., Jerry Alcott, Norman Dunham, and DC Engineering & Development Ltd.

DOUGLAS, J.

The issue before us is whether city council had the authority to enact emergency legislation accepting the applications for annexations of the two parcels of land to the city of London. For the reasons that follow, we answer this question in the affirmative.

As a threshold matter, it is clear that we must, as a matter of law, accept all of the allegations of appellants' complaint as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. Further, in O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus, we held:

"In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R.12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery."

This case involves the annexation of land to a municipal corporation upon petition by a majority of the owners of real estate in the territory proposed for annexation. Ohio's statutory procedure for annexation is set forth in R.C. Chapter 709.

R.C. 709.02 provides that owners of real estate adjacent to a municipal corporation may apply for such territory to be annexed by filing a petition with the board of county commissioners of the county in which the territory is located. Not less than sixty days after a petition for annexation is filed with the commissioners, the commissioners must hold a public hearing. R.C. 709.031 and 709.032.

Following the evidentiary hearing, the commissioners must approve or deny the petition based upon factors contained in R.C. 709.033.⁴ If the petition is approved, the commissioners must deliver the petition and a certified transcript of the proceedings to the auditor or clerk of the municipal corporation. R.C. 709.033. Thereafter, the auditor or clerk is required to present the petition and the transcript to the legislative authority of the municipal corporation. R.C. 709.04. The legislative authority then accepts or rejects the application for annexation by resolution or ordinance. Id.

R.C. 709.07(A) provides that a person may file a petition in the court of common pleas for an injunction preventing the auditor or clerk from presenting the annexation petition and other papers to the legislative authority. The trial court may issue an injunction if the petitioner sets forth facts sufficient to demonstrate that, among other things, an error existed in the proceedings before the commissioners or that their decision was unreasonable or unlawful.

The court of appeals did not address appellants' contentions that the emergency ordinances passed by city council on February 19, 1998 were contrary to law and therefore void. Instead, the court of appeals, relying on Garverick v. Hoffman (1970), 23 Ohio St.2d 74, 52 O.O.2d 371, 262 N.E.2d 695, and State ex rel. Springfield Twp. Bd. of Trustees v. Davis (1982), 2 Ohio St.3d 108, 2 OBR 658, 443 N.E.2d 166, held that appellants' contentions were moot because they failed to seek an injunction prior to the passage of the emergency ordinances.

However, we believe that, given the procedural posture of the case at bar, the court of appeals' reliance on Garverick and Davis was misplaced. In both Garverick and Davis, this court noted that the parties challenging the legislation at issue accepting annexation failed to take advantage of available remedies to stay proceedings before the legislation was passed. Thus, because the parties in Garverick and Davis did not avail themselves of such remedies, any subsequent challenge seeking to enjoin the enacted legislation was moot.⁵

However, the situation in the case at bar is substantially different from what occurred in both Garverick and Davis. Unlike the parties in Garverick or Davis, here, appellants clearly did not have an opportunity to seek an injunction prior to the adoption of the ordinance accepting annexation. This is true because the act of accepting the annexation by emergency ordinance is the very action that appellants are challenging.

Appellants contend that R.C. 709.10 and Section 1f, Article II of the Ohio Constitution prohibit a municipality from accepting annexation applications through passage of emergency legislation. R.C. 709.10 sets forth the date that annexation takes effect after an ordinance accepting annexation is passed. Appellants contend that there is an irreconcilable conflict between R.C. 709.10 and language in R.C. 731.30 regarding the effective date of an emergency ordinance.

R.C. 709.10 provides that "annexation shall become effective thirty days after the passage of the resolution or ordinance * * * accepting annexation, provided that if the resolution or ordinance is subjected to a referendum, the annexation, if approved by the electors, shall become effective thirty days after such approval." R.C. 731.30 provides that "emergency ordinances * * * shall go into immediate effect."

Appellants claim that, because R.C. 709.10 expressly provides for a thirty-day delay between the date that an annexation ordinance is passed and the date that the annexation goes into effect, municipalities are prohibited from approving annexation applications by emergency ordinances because such legislation takes effect immediately in accordance with R.C. 731.30. In this regard, appellants contend that the General Assembly intended that R.C. 709.10 prohibit municipalities from circumventing referendums by accepting annexation applications by emergency ordinances. In support of their position, appellants rely on Tamele v. Brinkman (1972), 30 Ohio Misc. 49, 59 O.O.2d 292, 284 N.E.2d 210.

In Tamele, the court determined that a conflict existed between R.C. 709.10 and 731.30 with respect to the effective date of the ordinance. The court determined that the conflict was irreconcilable and that R.C. 709.10, as a special provision relating to annexation, prevailed over R.C. 731.30, a general provision relating to ordinances. Thus, the court in Tamele held that R.C. 709.10 creates an exception to R.C. 731.30 and prevents municipalities from accepting annexation petitions by means of emergency ordinances.

However, we agree with appellee that the Tamele court erred in finding that R.C. 709.10 and 731.30 are irreconcilable. We note that R.C. 1.51 provides that, when possible, courts should construe conflicting provisions so that effect is given to both. We find that R.C. 709.10 and 731.30 can coexist, i.e., an emergency ordinance accepting annexation becomes effective immediately in accordance with R.C. 731.30 but citizens living in the area annexed do not secure rights and privileges until thirty days thereafter in accordance with R.C. 709.10.

Appellants contend that giving effect to both statutes would lead to absurd results because the sole reason that the General Assembly included the language in R.C. 709.10 providing for a thirty-day delay in the effectiveness of annexations was to provide time for filing referendum petitions. Appellants, however, overlook the fact that R.C. 709.10 also provides for a thirty-day delay in the effectiveness of an annexation if the referendum is exercised and the ordinance is accepted. Specifically, R.C. 709.10 provides that "if the resolution or ordinance is subjected to a referendum, the annexation, if approved by the electors, shall become effective thirty days after such approval." If the delay were intended simply to allow time for filing a referendum petition then there would be no need for a thirty-day delay once the voters approved the annexation.

Therefore, we believe that the General Assembly had additional reasons for providing for a thirty-day delay in the effectiveness of annexations. We believe that the delay set forth in R.C. 709.10 provides time for the finalization of the annexation, see R.C. 709.06,⁶ and also allows time for the municipality to arrange for extension of its services to the newly annexed area, e.g., garbage collection, police patrol, fire protection, water, and sewer.

If the General Assembly had intended, as appellants suggest, to prohibit municipalities from passing annexation applications by means of emergency ordinances, it would have stated so in the statutory procedures for annexation. However, no such language exists in R.C. 709.10, or anywhere in R.C. Chapter 709.

Appellants also contend that Section 1f, Article II of the Ohio Constitution supports their position. In this regard, appellants argue that R.C. 709.10 must be interpreted as an exception to R.C. 731.30 to preserve the right of referendum. Again, we disagree. Section 1f, Article II of the Ohio Constitution provides:

"The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law."

Although Section 1f, Article II expressly provides residents of a municipality with the power to subject ordinances to referendum, the constitutional section also explicitly states that "such powers shall be exercised in the manner now or hereafter provided by law." (Emphasis added.) To that end, R.C. 731.29 provides that "any...