678 N.E.2d 599 | Ohio Ct. App. | 1996
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This appeal concerns whether R.C.
"(A) Notwithstanding any other section of the Revised Code, when a township contains at least ninety per cent of the geographic area of a municipal corporation, either that township or the municipal corporation may remove that part of that township that is located within the municipal corporation from that township if all of the following apply:
"(1) The electors of the township and the municipal corporation have voted to approve the establishment of a merger commission pursuant to section
"(2) The unincorporated territory of the township has a population of more than nine thousand.
"(3) The township has previously adopted the limited self-government form of township government under Chapter 504. of the Revised Code and a township zoning resolution under Chapter 519. of the Revised Code.
"(4) Not later than December 31, 1994, either the township adopts a resolution or the municipal corporation adopts a resolution or ordinance to remove that part of the township that is located in the municipal corporation from the township. Any resolution or ordinance adopted under division (A)(4) of this section shall include an accurate description of the land to be removed. The political subdivision that adopts an ordinance or resolution under division (A)(4) of this section shall file with the county recorder a copy of it certified by the county auditor, together with a map or plat certified by the county auditor of the land to be removed. The county recorder shall record the ordinance or resolution and the map or plat.
"(B) If either the township or the municipal corporation takes the action described in division (A)(4) of this section, the removal shall occur. After the removal, the unincorporated territory of the township shall no longer receive any revenue by virtue of its relationship to the municipal corporation. As soon as practicable after a removal occurs under this section, the board of county commissioners shall ascertain whether there is any joint indebtedness of the unincorporated territory of the township and the municipal corporation. If there is any such indebtedness, the board of county commissioners shall apportion it in accordance with section
"(C)(1) If a removal occurs under this section, all or part of the unincorporated territory of the township may become a village if the board of township trustees adopts, by unanimous vote, a resolution for all or part of that territory to become a village. The board of township trustees shall file with the county recorder a copy of any resolution it adopts under division (C)(1) of this section certified by *261 the county auditor, together with a map or plat certified by the county auditor of the land to be included in the village. The county recorder shall record the resolution and the map or plat. Once the board adopts a resolution under division (C)(1) of this section, no land within the area that will constitute the village may be annexed, and any pending annexation proceeding that includes land in that area shall be considered to be terminated with regard to that land.
"(2) If the board does not adopt a resolution under division (C)(1) of this section, or if the board adopts such a resolution in which only a part of the unincorporated territory becomes a village, the board of county commissioners shall attach all the unincorporated territory that does not become a village to any township contiguous to that territory or erect that territory into a new township, the boundaries of which need not include twenty-two square miles of territory.
"(D) If a board of township trustees adopts a resolution under division (C)(1) of this section for all or part of the township's unincorporated territory to become a village, the board shall serve as the legislative authority of the area constituting the village until the next regular municipal election that occurs at least seventy-five days after the adoption of the resolution. At that election, the legislative authority of the village shall be elected under section
On September 29, 1994, the Fairfield Township Board of Trustees terminated the R.C. Chapter 504 form of optional limited self-government Fairfield Township was operating under at that time. The trustees passed Resolution 94-70, which removed the city of Fairfield from Fairfield Township pursuant to R.C.
Prior to the incorporation of Indian Springs, the owners of 1,037.3 acres of property located within the formerly unincorporated portion of Fairfield Township filed a petition to annex the property to the city of Hamilton. The petition for annexation was denied by the Butler County Commissioners. The annexation petitioners appealed the commissioners' decision to the Butler County Court of Common Pleas pursuant to R.C. Chapter 2506. No decision has yet been rendered in that case.
Hamilton also filed a separate petition to annex one hundred ten acres of county-owned property, which is also located within the boundaries of Indian Springs. However, this petition was terminated pursuant to R.C.
On September 28, 1994, Hamilton, the annexation petitioners' statutory agent, Gary L. Sheets, and Indian Springs resident Clarence Wilder filed a declaratory judgment action in the Butler County Court of Common Pleas. The complaint contained ten counts, which alleged that R.C.
The parties subsequently filed cross-motions for summary judgment. The trial court issued a lengthy opinion in which it examined the constitutional issues presented by each count of the complaint. The trial court held that R.C.
The trial court held that R.C.
The trial court issued a permanent injunction in which it prohibited Indian Springs from operating as a city. However, the trial court also issued a stay in which it permitted Indian Springs to continue operating as a city during the pendency of this appeal.
Indian Springs now appeals, setting forth the following assignments of error:
Assignment of Error No. 1:
"The trial court erred in granting plaintiffs' motion for summary judgment as to Count One of the amended complaint."
Assignment of Error No. 2:
"The trial court erred in granting plaintiffs' motion for summary judgment as to Count Seven of the amended complaint."
Assignment of Error No. 3:
"The trial court erred in granting plaintiffs' motion for summary judgment as to Count Eight of the amended complaint."
Assignment of Error No. 4: *263
"The trial court erred in partially granting plaintiffs' motion for summary judgment as to Counts Four and Five of the amended complaint."
Hamilton also cross-appeals, setting forth the following assignments of error:
Assignment of Error No. 1:
"The trial court erred to the prejudice of plaintiff/cross-appellants by including within the stay granted to defendants-cross-appellees a determination upon an issue not presented to the court."
Assignment of Error No. 2:
"The trial court erred to the prejudice of plaintiffs/cross-appellants in failing to conclude that the timing of the incorporation of Indian Springs pursuant to R.C.
Assignment of Error No. 3:
"The trial court erred to the prejudice of plaintiffs/cross-appellants in granting cross-appellee's motion for summary judgment and in denying cross-appellant's motion for summary judgment on Count 3 of the amended complaint."
Assignment of Error No. 4:
"The trial court erred in granting cross-appellees' motion for summary judgment and in denying cross-appellants' motion for summary judgment on Count 2 of the amended complaint."
In its first assignment of error, Indian Springs contends that the trial court erred in finding that R.C.
"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly."
The first issue we must consider under this assignment of error is whether the trustees' decision to discontinue the township form of optional limited self-government and incorporate Indian Springs pursuant to R.C.
"The words `municipal corporation' and `township' in their legal usage consistently have been recognized as possessing distinctly different meanings. This distinction is evident in the Ohio Constitution. Article
As the Supreme Court recognized in Carroll, the township and municipal corporation forms of community government are legally distinct entities from both a constitutional and a statutory perspective. Therefore, it is apparent that the trustees' unilateral decision to discontinue the township form of optional limited self-government and incorporate Indian Springs altered, reformed, or abolished government within the meaning of Section 2, Article I.
The second issue we must consider under this assignment of error is whether Section
Townships and municipal corporations are political subdivisions and as such are charged with performing many of the governmental functions essential to an ordered society. These political entities are consequently "government" within the meaning of Section 2, Article I and are thus subject to the same right of the people to alter, reform, or abolish government as they may deem it necessary. It is only logical then that the assent of the electorate is required before a township form of local government may be discontinued and a municipal corporation formed in its place. Consequently, the Self-Governance Clause of Section 2, Article I requires that the electors of a proposed municipal corporation vote or otherwise give their assent by petition of a majority of the electors before a township form of government may be discarded in favor of a municipal corporation.
Our conclusion that Section 2, Article I entitles the electors to vote or otherwise give their assent before a municipal corporation may be formed is supported by the manner in which the General Assembly has historically exercised its power to regulate the process of municipal incorporation. R.C. *265
Chapter 707 was the exclusive body of law governing the incorporation of villages and cities prior to the enactment of R.C.
A second process of incorporating a new city where the existing municipal corporations within three miles refuse to approve the R.C.
Indian Springs nevertheless argues that R.C.
"`All political power is inherent in the people.' This is the genesis of all American government. This identical language is in the Ohio Bill of Rights (Section 2, Art. I), and in syllable or spirit it is found in all the state Constitutions. That `political power' not only resides in the people, but remains with them until they have delegated it to some department of their state government, or some subdivision thereof. The delegation of political power is either expressed or implied; but it must always be remembered that implied powers delegated must be such as are naturally or necessarily incidental or auxiliary to the express power, and, as such, the implied power cannot be in any wise destructive of, or in conflict with, an express delegation of power.
"Express delegations of political power are made throughconstitutional provisions, and are necessarily exclusive delegations of power, unless it be expressly provided otherwise. One of the earliest cases in Ohio dealing with this provision of our Bill of Rights is Cincinnati, Wilmington Zanesville Rd.Co. v. Commrs. *266 of Clinton County,
"`They [the people] have, therefore, the most undoubted right to delegate just as much, or just as little, of this political power with which they are invested as they see proper, and to such agents or departments of government as they see fit to designate. To the Constitution we must look for the manner and extent of this delegation; and from that instrument alone must every department of the government derive its authority to exercise any portion of political power.'" (Emphasis added.)Perrysburg v. Ridgway (1923),
It is certainly true that Section 2, Article XVIII grants the General Assembly plenary power to enact general laws regulating the process of municipal incorporation. However, there is nothing in the Ohio Constitution which indicates that the people have in any way delegated to the General Assembly or township trustees their inherent power to decide whether a municipal corporation is the form of local government which best suits the needs of their community. Indian Springs' contention that R.C.
In sum, we hold that R.C.
In its second assignment of error, Indian Springs contends that the trial court erred in finding that R.C.
"Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law."
R.C.
R.C.
Section 1, Article XVIII grants the General Assembly plenary power to regulate the manner by which a municipal corporation is transformed from village to city status. See Murray v. State exrel. Nestor (1915),
"
"
R.C.
We believe that this statutory scheme does not violate Section 1, Article XVIII because, as a matter of law, any village which has a population in excess of five thousand people and is eligible for incorporation under either R.C.
Accordingly, the trial court erred in finding that R.C.
In its third assignment of error, Indian Springs argues that the trial court erred in finding that R.C.
"General laws shall be passed to provide for the incorporation and government of cities and villages; and additional laws may also be passed for the government of municipalities adopting the same; but no such additional law shall become operative in any municipality until it shall have been submitted to the electors thereof, and affirmed by a majority of those voting thereon, under regulations to be established by law."
Section 2, Article XVIII prohibits the General Assembly from enacting special laws which provide for the incorporation of cities and villages. A statute is a special law where it relates to a subject matter which "cannot exist in, or affect the people of every county." See State ex rel. Saxbe v. Alexander (1959),
R.C.
However, the evidence presented by the parties in this case unquestionably demonstrates that Fairfield Township was the only township within the state of Ohio which could have incorporated under R.C.
Indian Springs nevertheless argues that these townships could have satisfied all of the requirements of R.C.
R.C.
R.C.
R.C.
It is therefore apparent to the members of this court that R.C.
In its fourth assignment of error, Indian Springs contends that the trial court erred in finding that R.C.
The first step in determining what protections are afforded by due process is to ascertain whether the state action at issue affects a constitutionally protected liberty or property interest. See Lee v. Cuyahoga Cty. Court of Common Pleas (1991),
The second step in our due process analysis is to determine whether R.C.
R.C.
Indian Springs next argues that the trial court erred in finding that R.C.
"The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state."
In Van Fossen v. Babcock Wilcox Co. (1988),
Applying the Van Fossen test, we must first consider whether R.C.
The second prong of the Van Fossen test requires us to determine whether R.C.
"`impairs or takes away vested rights, * * * affects an accrued substantive right, * * * imposes new or additional burdens, duties, obligations or liabilities as to a past transaction, * * * creates a new right out of an act which gave no right and imposed no obligation when it occurred, * * * creates a new right, * * * [or] gives rise to or takes away the right to sue or defend actions at law.'" Vogel v. Wells (1991),
As we have already noted, R.C. Chapter 2506 permits annexation petitioners to appeal an adverse decision on their petition by the county commissioners to the court of common pleas. The right to prosecute an R.C. Chapter 2506 annexation appeal to its conclusion becomes a vested substantive right once the appeal is actually filed in the court of common pleas. R.C.
In its first assignment of error on cross-appeal, Hamilton contends that the trial court improperly permitted Indian Springs to continue operating as a city during the pendency of this appeal. Hamilton argues that the trial court erred in including the following language in its order staying the permanent injunction:
"The status quo of Indian Springs shall include the full faith and credit on all contracts and undertakings in the past by the Township Trustees acting as the legislative authority of Indian Springs, but does not nclude [sic] ultimate liability on these same contracts and undertakings."
Civ.R. 62 requires a trial court to issue a stay where a township or other political subdivision appeals the court's decision. State ex rel. Ocasek v. Riley (1978),
As our decision indicates, this case presents numerous, complex questions of state constitutional law which are ripe for review by this court. The trial court properly recognized that some political authority must continue to govern the territory which comprises Indian Springs during the pendency of this appeal. The trial court consequently acted well within the scope of its discretionary authority in permitting Indian Springs to continue operating as a city while this appeal was pending. Therefore, we find no error by the trial court. Hamilton's first assignment of error on cross-appeal is overruled.
In its second assignment of error on cross-appeal, Hamilton contends that R.C.
"If the limited self-government form of township government is adopted pursuant to section
Hamilton argues that R.C.
R.C.
In its third assignment of error on cross-appeal, Hamilton argues that R.C.
In its fourth assignment of error on cross-appeal, Hamilton contends that R.C.
The first step in our equal protection analysis is to determine the appropriate standard of review. Statutes which deprive a certain class of individuals of a fundamental right are subject to a strict-scrutiny test, while statutes which do not need only be rationally related to some legitimate governmental interest. Conley v. Shearer (1992),
As we have already noted in our discussion of Indian Springs' first assignment of error, the right to vote or otherwise choose whether to form a municipal corporation is a fundamental right that is guaranteed by Section
The second step in our equal protection analysis is to apply the strict-scrutiny test and determine whether R.C.
To summarize, we hold that R.C.
We also hold that R.C.
Based upon the foregoing, the judgment of the trial court prohibiting Indian Springs from operating as a city is hereby affirmed.
Judgment affirmed.
WILLIAM W. YOUNG, P.J., and KOEHLER, J., concur.
R.C.