Taylor v. London - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Taylor v. London, 88 Ohio St.3d 137, 2000-Ohio-278.]

TAYLOR ET AL., APPELLANTS, v. CITY OF LONDON, APPELLEE, ET AL.
[Cite as Taylor v. London (2000), 88 Ohio St.3d 137.]
Municipal corporations -- Annexation -- Enactment of emergency legislation
accepting an application for annexation of real estate is not prohibited by
R.C. 709.10 or Section 1f, Article II of the Ohio Constitution -- Emergency
legislation adopted by municipality not subject to referendum.
1.
The enactment of emergency legislation by a municipality accepting an
application for annexation of real estate is not prohibited by R.C. 709.10 or
Section 1f, Article II of the Ohio Constitution.
2.
In accordance with R.C. 731.29 and 731.30, emergency legislation adopted
by a municipality is not subject to referendum.
(No. 99-411 -- Submitted November 17, 1999 -- Decided March 1, 2000.)
APPEAL from the Court of Appeals for Madison County, No. CA98-06-024.

On March 27, 1998, Janice E. and Robert V. Taylor, appellants, filed a
complaint in the Madison County Court of Common Pleas naming as defendant the
city of London, appellee herein.1 Appellants based their complaint on the
following allegations.

On July 7, 1997, the Madison County Board of Commissioners
("commissioners") held a hearing and thereafter approved a petition for annexation

of approximately five hundred twenty-nine acres in Union and Deercreek
Townships ("Parcel A") to the city of London. In addition, on August 11, 1997,
the commissioners held a hearing and also subsequently approved a petition for
annexation of approximately two hundred sixty acres in Union Township ("Parcel
B") to the city of London. Following certification to the city auditor, the London
City Council ("city council") passed two ordinances, Ordinance Nos. 230-97
(Parcel A) and 229-97 (Parcel B), accepting both applications for annexation.

On February 17, 1998, appellants filed referendum petitions, requesting that,
at the next general election, Ordinance Nos. 230-97 and 229-97 be placed on the
ballot for approval or rejection by the city electorate.2 In response to the petitions,
city council, on February 19, 1998, passed four emergency ordinances. Two of the
enacted emergency ordinances repealed Ordinance Nos. 230-97 and 229-97. The
other two emergency ordinances (Ordinance Nos. 136-98 and 138-98) accepted the
applications for annexation of each parcel to the city of London.3 In the
emergency ordinances, city council set forth its reasons for the passage of the
legislation and specifically noted that the legislation was "for the immediate
preservation of the public peace, health and safety of the inhabitants of the City of
London."

In their complaint, appellants sought a declaration that the emergency
ordinances accepting the annexation applications were contrary to law and

2

therefore void. Appellants alleged that R.C. 709.10 and Section 1f, Article II of
the Ohio Constitution "prohibit the passage as an emergency measure of an
ordinance purporting to accept an annexation." On April 24, 1998, appellee filed a
Civ.R. 12(B)(6) motion to dismiss the complaint for failure to state a claim upon
which relief could be granted.

The trial court granted appellee's motion and dismissed the complaint.
Upon appeal, the court of appeals affirmed the judgment of the trial court. The
court of appeals, however, did not address appellants' specific contentions
concerning the application of R.C. 709.10 and Section 1f, Article II. Rather, the
court of appeals affirmed the judgment of the trial court on the grounds that
appellants' claims were moot.

This cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________

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.

3

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.

4

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.

5

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.

6

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

7

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

8

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

9

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 "[a]ny ordinance or other measure passed by the legislative authority
of a municipal corporation shall be subject to the referendum except as provided by
section 731.30 of the Revised Code." Further, R.C. 731.30 states that "emergency
ordinances or measures necessary for the immediate preservation of the public
peace, health, or safety in such municipal corporation, shall go into immediate
effect." (Emphasis added.) Clearly, R.C. 731.29 and 731.30, which preclude
referendum of properly adopted emergency legislation, do not contravene the
rights afforded to citizens under Section 1f, Article II of the Ohio Constitution.

Accordingly, we hold that the enactment of emergency legislation by a
municipality accepting an application for annexation of real estate is not prohibited
10

by R.C. 709.10 or Section 1f, Article II of the Ohio Constitution. Moreover, in
accordance with R.C. 731.29 and 731.30, emergency legislation adopted by a
municipality is not subject to referendum.

For all of the foregoing reasons, we find that the trial court properly granted
appellee's Civ.R. 12(B)(6) motion and dismissed appellants' complaint.

Therefore, albeit for different reasons, we affirm the judgment of the court of
appeals.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY and COOK, JJ., concur.

PFEIFER and LUNDBERG STRATTON, JJ., dissent.
FOOTNOTES:

1.
Betty D. Montgomery, Attorney General of Ohio, was named as a
party defendant pursuant to R.C. 2721.12 but was dismissed as a party after the
parties stipulated that the state had no interest or stake in the litigation.

2.
Appellants were members of the referendum committee and are
therefore regarded as having filed the petition. R.C. 731.34.

3. Appellants concede that municipalities are not prohibited from
circumventing a referendum by "passing at one session after the filing of the
referendum petition two consecutive emergency ordinances, one to repeal the
ordinance under referendum and the other to re-enact substantially the same
11

ordinance as repealed; and it can do that although the sole purpose of council in
passing the two new ordinances is to prevent a vote by the electorate on the
legislation contained in the ordinance with respect to which the referendum
petition was filed." State ex rel. Tester v. Ottawa Cty. Bd. of Elections (1962), 174
Ohio St. 15, 21 O.O.2d 107, 185 N.E.2d 762, syllabus.

Moreover, the duty and responsibility of determining the emergency are
placed in the council of a municipality and "[i]f there was in fact no emergency or
if the reasons given for such necessity are not valid reasons, the voters have an
opportunity to take appropriate action in the subsequent election of their
representatives. However, the existence of an emergency or the soundness of such
reasons is subject to review only by the voters at such a subsequent election of
their representatives. They are not subject to review by the courts." State ex rel.
Fostoria v. King (1950), 154 Ohio St. 213, 221, 43 O.O. 1, 4-5, 94 N.E.2d 697,
701, and paragraph four of the syllabus. As noted in Fostoria, the statutory
provisions safeguard referendum rights by requiring substantially more than a
majority vote to enact emergency legislation. Id. at 220, 43 O.O. at 4, 94 N.E.2d at
701.

4.
R.C. 709.033 provides:

"After the hearing on a petition to annex, the board of county commissioners
shall enter an order upon its journal allowing the annexation if it finds that:
12

"(A) The petition contains all matter required in section 709.02 of the
Revised Code.

"(B) Notice has been published as required by section 709.031 of the
Revised Code.

"(C) The persons whose names are subscribed to the petition are owners of
real estate located in the territory in the petition, and as of the time the petition was
filed with the board of county commissioners the number of valid signatures on the
petition constituted a majority of the owners of real estate in the territory proposed
to be annexed.

"(D) The municipal corporation to which the territory is proposed to be
annexed has complied with division (B) of section 709.031 of the Revised Code.

"(E) The territory included in the annexation petition is not unreasonably
large; the map or plat is accurate; and the general good of the territory sought to be
annexed will be served if the annexation petition is granted."
5.
In
Garverick this court stated that "every wrong decision, even by an
administrative body, is not void as being beyond the so-called jurisdiction of the
tribunal, even though voidable by proper judicial process. Logic compels the
conclusion that this is true where a specifically prescribed course of immediate
judicial review or judicial examination is provided within the same act, for the
relief of those persons claimed to be aggrieved by illegal or improper action of an
13

administrative tribunal, especially where such persons fail to take advantage of the
specific judicial review or examination so provided. [Citation omitted.] That is
the situation which prevailed in this case, and was the basis for the conclusion by
the Court of Appeals that the case is moot. We agree with that conclusion." Id.,
23 Ohio St.2d at 79, 52 O.O.2d at 374, 262 N.E.2d at 699.
In
Davis this court stated:

"We wish to emphasize that subsequent to the final order of the court of
common pleas on April 21, 1982, until city council's enactment of the annexation
ordinance on June 28, 1982, relators possessed several options. First, under Civ.R.
62(B), a stay was available upon request from the court of common pleas which
would have prevented this cause from becoming moot. Second, a timely stay under
the provisions of App.R. 7 could have been sought from the court of appeals.
Neither course, however, was pursued despite the abundance of precedent which
compels us to agree with the court of appeals that this action was rendered moot on
June 28, 1982, the date city council adopted Ordinance No. 415-1982, accepting
the annexation." (Emphasis sic.) Id., 2 Ohio St.3d at 111, 2 OBR at 661, 443
N.E.2d at 168-169.

6.
R.C. 709.06 provides:

"If the resolution or ordinance required by section 709.04 of the Revised
Code is an acceptance of the proposed annexation, the auditor or clerk of the
14

municipal corporation to which annexation is proposed shall make three copies,
containing the petition, the map or plat accompanying the petition, a transcript of
the proceedings of the board of county commissioners, and resolutions and
ordinances in relation to the annexation, with a certificate to each copy that it is
correct. Such certificate shall be signed by the auditor or clerk in his official
capacity, and shall be authenticated by the seal of the municipal corporation if
there is any. The auditor or clerk shall forthwith deliver one such copy to the
county auditor and one such copy to the county recorder, who shall make a record
thereof in the proper book of records and file and preserve it. The other copy shall
be forwarded by the auditor or clerk to the secretary of state."
__________________

LUNDBERG STRATTON, J., dissenting. I disagree with the majority's
conclusion that property may be annexed through "emergency" legislation not
subject to a referendum. I believe that allowing such a process deprives Ohio
citizens of their right to a referendum provided under Section 1f, Article II of the
Ohio Constitution.

This case presents a clear example of how such an interpretation can lead to
an abuse of this important right. In this case, the Board of Commissioners of
Madison County had approved two petitions annexing land to the city of London
and the London City Counsel passed two ordinances accepting the annexations.
15

Referendum petitions were timely filed. The city of London then repealed the two
annexation ordinances, and passed them again as "emergency legislation," thereby
circumventing the referendum attempt. It is difficult for me to imagine a more
deliberate attempt to thwart a constitutional right. I fear that the majority's
approval of this procedure will provide a road map to each municipality in the
future to avoid referendums when they have been filed, as we set forth no
guidelines or exceptions for allowing such circumvention but rather grant
wholesale approval to the emergency process.

I believe that R.C. 709.10, as a special provision relating to annexation,
clearly controls over R.C. 731.30, a general provision relating to ordinances. See
Tamele v. Brinkman (1972), 30 Ohio Misc. 49, 53, 59 O.O.2d 292, 294, 284
N.E.2d 210, 213. Therefore, I believe that R.C. 709.10 allows voters time to vote
on a referendum even in the face of emergency legislation to annex property.
Navarre v. Massillon (Aug. 4, 1997), Stark App. No. 96-CA-0426, unreported.

R.C. 731.30 allows emergency measures "necessary for the immediate
preservation of the public peace, health, or safety * * *." (Emphasis added.)
Appellee, the city of London, presented no evidence as to why an emergency
ordinance was necessary, nor can I envision any scenario where it would be. The
process of land development and transfer are slow and deliberate events,
16

sometimes taking years. What scenario could possibly be such a dire emergency
that it cannot wait an additional thirty days?

R.C. 709.10 states:

"The annexation shall become effective thirty days after the passage of the
resolution or ordinance by the legislative authority of the municipal corporation
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."

There is nothing in this statute that speaks to emergency legislation. To
allow R.C. 731.30 to trump R.C. 709.10 violates Section 1f, Article II of the Ohio
Constitution, which states:

"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."

I do not believe that the General Assembly can use the phrase "provided by
law" to circumvent or abrogate the constitutional right to referendum afforded in
Section 1f, Article II of the Ohio Constitution. Nor do I believe that the General
Assembly intended R.C. 731.30 to be used to do so. The right of referendum
"reserved to the people of each municipality" is mere illusion if every time a
17

referendum petition challenging an annexation is filed, a municipality can repeal
the annexation legislation and pass identical "emergency" legislation, free from the
reach of the referendum.

As the court in Navarre stated:

"[O]ne of the most inviolate rules of any court is to construe statutes in such
a manner as to avoid foreclosing the rights of voters to make their will known to
their legislators." Id. at 4.

The majority forecloses that right by its judgment. Therefore, I respectfully
dissent.

PFEIFER, J., concurs in the foregoing dissenting opinion.
18