Hydraulic Press Brick Co. v. City of Independence
311 N.E.2d 873
Ohio Ct. App.
1974
Check Treatment
Day, J.

Hydraulic Press Brick Company, hereafter referred to as appellant, operаtes a manufacturing business in Independence, Ohio. Stone Road is the only access route for truck traffic to the business. On July 10,1973, the Council of Independence, hereafter refеrred to as appellee, enacted Section 339.16 of the Codified Ordinances оf Independence, which prohibits the use of Stone Road by trucks exceeding one-hаlf ton capacity between 6:00 p. m. and 8:00 a. m. and on Sunday.

On August 29, 1973, the appellant filed a сomplaint for declaratory judgment and an injunction alleging that Section 339.16 was unconstitutional. The court granted the temporary restraining order on August 31,1973. At a hearing on September 14, 1973, the appellees moved to dig- *38 miss the complaint. In this motion they were joined by the Attоrney General of Ohio. The ‍​‌​‌‌‌‌​​‌‌‌​​​‌​‌​‌​‌​​‌‌‌​‌‌​​​​​‌​​‌​​​​​‌​​‌‍court granted the motion “because all peoplеs have not been made parties” (Tr. 22). 1

The appellants appeal from this deсision and assign one error:

“The Court Erroneously Dismissed' the Suit for Lack of Necessary Parties Because Ohio Revised Code §2721.12 Does Not Require the Attorney General to be a Party.”

This assignment of error lacks merit. We affirm.

I.

The issue presented by this assignment of error is whether the appellant complied with the requirements of Ohio R. C. 2721.12, which states that “when declaratory relief is sought . . . the attorney genеral shall also ‍​‌​‌‌‌‌​​‌‌‌​​​‌​‌​‌​‌​​‌‌‌​‌‌​​​​​‌​​‌​​​​​‌​​‌‍be served with a copy of the proceeding and shall be heard”. It is clear from the statute, as the appellee concedes, that the Attorney Gеneral need not be made a party to all declar-tory judgment proceedings. See Jukelson v. Hunter (1969), 22 Ohio App. 2d 182, 185-186. However, the court cannot acquire jurisdiction of the ease unless the attоrney general is served with a “copy of the proceeding[s] ”. Cf. Town of Warrior, et al., v. Blaylock (S. Ct. Ala., 1961), 127 So. 2d 618, 619; Busch Jewelry Company v. City of Bessemer (S. Ct. Ala., 1957), 98 So. 2d 50, 51. 2 What constitutes service is not spelled out in the statute.

H.

The record indicates that the Attorney General received *39 a copy of the complaint by messenger the day before tbe bearing on the motion to dismiss (Tr. 5, 16-17, 18). There is no evidеnce that the Attorney General received a copy when the appellants originally filed their complaint for declaratory judgment. In light of the purpose of the statute, we interpret Ohio R. C. 2721.12 to require parties to serve the Attorney General at the sаme time and in the same manner that the complaint is served under Rules 4, 4.1, and 4.3. Compliancе with the rules is dictated in part by the necessity of an official record of service fоr the benefit of the court.

In addition, rule compliance puts the Attorney General in receipt of a copy of the complaint in time ‍​‌​‌‌‌‌​​‌‌‌​​​‌​‌​‌​‌​​‌‌‌​‌‌​​​​​‌​​‌​​​​​‌​​‌‍for him to determine whether the “Stаte’s interests should be represented in such proceedings”, cf. Watson v. Claughton (S. Ct. Fla., 1958), 34 So. 2d 243, 246. He must have the opрortunity “to decide whether to intervene on behalf of the State or any State agency affected”, cf Pressman v. State Tax Commission (Ct. of App. Md., 1954), 102 A. 2d 821, 826, in order to make the requirement of service meaningful. To make it possible for such a determination to be a reasoned one, the Attorney General is entitled to receive timely notification, i. e., notification at the time the proceedings commence. Otherwise ‍​‌​‌‌‌‌​​‌‌‌​​​‌​‌​‌​‌​​‌‌‌​‌‌​​​​​‌​​‌​​​​​‌​​‌‍the trial court does not acquire jurisdiction. Cf. Cole v. Sylacauga Hos. Board (S. Ct. Ala., 3959), 113 So. 2d 200, 204.

It has been argued that the Attorney General waived his right to time sufficient to allow a reasoned dеtermination of the question of the State’s interest and an appropriate response when he did not move for a continuance. This argument founders on a realistic assessment of the procedural facts in this case. When the Attorney General joined а successful motion to dismiss there was no occasion to ask for a continuance. Had that motion lost, the time to move for a continuance would have come. Of course, it never did.

The assignment of error is not well taken.

Judgment affirmed.

Silbest, P. J., and JacksoN, J. concur.

Notes

1

We assume the trial court had in mind only the Attorney General oí Ohio when he used the word “all.” This assumption is founded on the fact that there is no evidence in the record to support the necessity for a joinder of three truck drivers allegedly arrested for violating the ordinance. The only record reference to the drivers came during а legal argument. This is not evidence. By talcing this position we should not be understood as holding the Attorney General to be a necessary party under Ohio Revised Code, Section 2721.12. We do hold that it is necessary under that section to serve him in accordance with the Ohiо Rules of Civil Procedure.

2

Section 166 of Title 7, 1940 Code (Ala.) has identical wording to Ohio Rev. Code, ‍​‌​‌‌‌‌​​‌‌‌​​​‌​‌​‌​‌​​‌‌‌​‌‌​​​​​‌​​‌​​​​​‌​​‌‍Section 2721.12, in the part pertinent to service on the attorney general.