Village of Moscow v. Moscow Village Council

• Citation: 29 Ohio Misc.2d 15,504 N.E.2d 1227,29 OBR 284
• Decision Date: 17 January 1984
• Docket Number: No. 84-CV-0004,84-CV-0004
• Parties: , 29 O.B.R. 284 VILLAGE OF MOSCOW v. MOSCOW VILLAGE COUNCIL et al.
• Court: Ohio Court of Common Pleas

Page 15

29 Ohio Misc.2d 15

504 N.E.2d 1227, 29 O.B.R. 284

VILLAGE OF MOSCOW v. MOSCOW VILLAGE COUNCIL et al.

No. 84-CV-0004.

Court of Common Pleas of Ohio Clermont County.

Jan. 17, 1984.

Charles J. Tekulve, Cincinnati, for plaintiff.

Thomas Blust, Batavia, for defendants.

RINGLAND, Judge.

Plaintiff, the village of Moscow, by and through its alleged solicitor, filed its complaint for declaratory judgment and injunctive relief on January 4, 1984. On January 5, 1984, defendants filed their motion for expedited hearing and their motion to dissolve temporary restraining order; the TRO had been issued on January 4, 1984.

The facts of the case which have been stipulated to or of which there is no dispute, are as follows:

On December 23, 1983, Ordinance No. 17-83 "Appointing Village Solicitor and Establishing Salary and Expenses" was enacted as an emergency ordinance "for the preservation of the public health and welfare of [the] Village," which ordinance purported to employ Charles J. Tekulve as solicitor of the village for the calendar years 1984-1985. The ordinance was signed by then-councilmembers M. June Foster, Louise Longworth, Larry L. West and Richard M. O'Neill. The remaining existing councilmembers Geoffrey S. Masterson and Linda DeWar did not sign, nor did the village clerk, Theresa Prebble, or village mayor, Eugene S. Holland. Also, on December 23, 1983, Ordinance No. 18-83 "Appointing Village Tax Commissioners and Establishing Salary and Expenses" was enacted as an emergency ordinance which purported to employ Charles J. Tekulve as tax commissioner of the village for the calendar years of 1984-1985. This ordinance was signed by the four aforementioned persons, then councilmembers, and was not signed by the village clerk or village mayor or the other two aforementioned councilmembers. Neither ordinance was certified as to the availability of funds per R.C. 5705.41 nor apparently authenticated per R.C. 731.20. There is no indication to the contrary, however, that R.C. 731.21, 731.25 or 731.46 was in any way not followed.

Pursuant to Ordinances Nos. 17-83 and 18-83, the then-Council of the village of Moscow, on December 30, 1983, drew up two employment contracts, one for the village solicitor, the other for the village tax commissioner, which contracts were signed by the four then-councilmembers mentioned above and by Charles J. Tekulve. The contracts were not signed by the village mayor or clerk or by the two other aforementioned councilmembers. The total minimum amount to be paid to Tekulve under the contracts for the 1984-1985 period is $30,870. Undisputed evidence indicates that the prior solicitor and tax commissioner have not been retained by way of written contract with the village.

The mayor, Eugene S. Holland, gave notice of meetings of the Moscow Village Council to be held on January 2 and 3, 1984, at 7:00 p.m., the purposes being to read for adoption Ordinances Nos. 1-84 and 2-84 (rescinding Ordinances Nos. 17-83 and 18-83), and Ordinances Nos. 3-84 and 4-84 (appointing solicitor and tax commissioner and establishing salary and expenses). By virtue of a temporary restraining order filed January 4, 1984, defendants, Geoffrey Masterson, Linda DeWar, Laurence Hayward and Marilyn Hayward, as councilmembers, were restrained from undertaking any formal action on behalf of the village of Moscow to expend village funds or to enter into a contract to expend village funds for the hiring of a solicitor and/or tax commissioner or any person other than Charles J. Tekulve until such time as the court determined the validity of Ordinances Nos. 17-83 and 18-83 and contracts hiring Tekulve, drawn pursuant to these ordinances. At the regularly scheduled monthly village meeting on January 4, 1984, defendants did not vote to enact Ordinances Nos. 1-84, 2-84, 3-84 and 4-84. The request for temporary restraining order and complaint were based upon allegations of Charles J. Tekulve that he was the duly appointed solicitor and had not only the right but duty in the name of the municipal corporation of Moscow to request a temporary restraining order and injunction under R.C. 733.56.

Plaintiff's complaint has requested the following relief:

"1. That the court issue a declaratory judgment determining the validity of the contracts drawn between the then-village council and Charles J Tekulve, pursuant to Ordinances Nos. 17-83 and 18-83.

"2. That the court issue a declaratory judgment determining the validity of the Ordinances Nos. 1-84, 2-84, 3-84 and 4-84.

"3. That the court order defendants, mayor and village clerk, to sign the contracts drawn pursuant to Ordinances Nos. 17-83 and 18-83.

"4. That the court issue preliminary and permanent injunctions pursuant to R.C. 733.56 to enjoin defendants, Geoffrey Masterson, Linda DeWar, Lawrence Hayward and Marilyn Hayward from undertaking to expend funds pursuant to Ordinances Nos. 1-84, 2-84, 3-84 and 4-84 because this would be otherwise a misapplication of funds, abuse of corporate power, and execution of contracts made in contravention of law or procured through fraud."

The defendants' motion to dissolve temporary restraining order came on for expedited hearing on January 7, 1984. At the outset of this discussion, the court notes that the question of whether to dissolve the TRO necessarily entailed addressing the merits of the cause itself, inasmuch as the issues and arguments surrounding the dissolution question were substantially similar to, and indeed overlap with, the arguments regarding the merits of the declaratory judgment action brought by plaintiffs. Evidence was presented, stipulations were entered into and, based upon the hearing, the court clarified the temporary restraining order to limit its scope and ordered that the temporary restraining order be made a preliminary injunction advising all parties that it was not nor is not the intention of this court to interfere with the legislative function of the Moscow Village Council. The court then advised that it would receive additional written argument or memoranda as to the issuance of the declaratory judgment and determination of plaintiff's complaint. Since all facts were agreed to or stipulated, no additional evidentiary hearing was necessary, with the provision, should the parties or court in their research or determination discover a disputed material fact which would be determinative of the issues, that additional evidence could be taken by this court. The court has received both memoranda and has reviewed the statutes and cases cited therein.

There appears to be no dispute of material fact and therefore further hearing is not necessary as will be more fully set forth below.

R.C. 733.56 reads as follows:

"The village solicitor or city director of law shall apply, in the name of the municipal corporation, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance[s] governing it, or which was procured by fraud or corruption."

Both parties apparently concur that this statute empowers a solicitor to seek enjoinment of specific acts of his village council, if the actions of council can be construed as one of the four above-prohibited acts. The only other person with power to request an injunction is a village taxpayer, under R.C. 733.59. Tekulve concedes that he is not a resident of the village of Moscow. Thus, if Tekulve has standing, i.e., if he is the village solicitor, either by law (de jure) or de facto, then the court must determine if the actions of council sought to be enjoined are of the type enumerated in R.C. 733.56.

However, to get to that point, the court must first determine the validity of the ordinances and/or contract appointing Tekulve as village solicitor. The similar issue of the validity of the ordinance and/or contract appointing Tekulve as tax commissioner has by consent of both parties been placed before this court to determine contemporaneously with the issue of village solicitor. To determine if the contracts appointing Tekulve solicitor and tax commissioner are valid, the court must first consider whether or not there has been a violation of R.C. 731.48, which states:

"The legislative authority of a municipal corporation shall not enter into any contract which is not to go into full operation during the term for which all the members of such legislative authority are elected."

Any municipal council, therefore, may not bind its successor in violation of R.C. 731.48. Korn v. Dunahue (1967), 13 Ohio App.2d 46, 42 O.O.2d 112, 233 N.E.2d 600. However, R.C. 731.48 does not mean that the performance of every term and condition shall begin during such period. A contract goes into "full operation" within the meaning of the section upon its execution. Jones v. Middletown (C.P.1948), 59 Ohio Law Abs. 329, 96 N.E.2d 799. This court must respectively disagree with defendants' contention that the holding of Jones was miscited by secondary text or that its author, the late Judge Krammer from the Butler County Court of Common Pleas, had no basis for making that specific holding. Prior authorities have held, if not explicitly, implicitly, the same principle of law albeit under different fact patterns or discussing the predecessor of R.C. 731.48, R.S. 1691. ¹ See 1928 Ohio Atty.Gen.Ops. No. 1896, at 752; Chillicothe v. Logan Natural Gas & Fuel Co. (C.P.1900), 8 Ohio N.P. 88, affirmed (Cir.Ct.1900), 45 W.L.B. 11, reversed on other grounds (1901), 65 Ohio St. 186, 62 N.E. 122. To hold that "full operation" means when each and every term of the contract is performed, would make long-term contracts, or at least contracts covering a period longer than the present legislative body, void. Surely that is not the rationale of the legislature...