161 N.E.2d 404 | Ohio Ct. App. | 1958
Lead Opinion
This appeal is on questions of law from a judgment of the Common Pleas Court upon a petition for a declaratory judgment. While an answer was not filed, the defendant was represented at the hearing by the county prosecuting attorney. By stipulation, the case was submitted to the trial court on the petition as constituting all the facts before the court. The parties will be referred to as plaintiff and defendant.
The undisputed facts as set forth in the petition are as follows:
"The plaintiff, Alvin C. Wadsworth, says that he brings this action on behalf of himself and others who are so numerous that it is impracticable to bring them all before the court, and who have a common interest with plaintiff herein and could rightfully be joined with plaintiff herein, and are similarly situated with him in the subject of this action.
"Plaintiff says that he is a qualified elector of the Erie Local School District in Erie Township, Ottawa County, Ohio; that he and 384 others who are likewise qualified electors of said Erie Local School District and who have a common interest with plaintiff in the subject of this action, duly signed a petition, hereinafter referred to as `Port Clinton petition' directed to defendant board of education petitioning said defendant to transfer all of the said Erie Local School District to the Port Clinton School District, and to place such proposal on the ballot at the appropriate November election as provided in Section *248
"Further pleading, plaintiff says that in the evening of the 25th day of April, 1958, another petition, hereinafter referred to as `Salem-Oak Harbor petition,' was delivered to said county superintendent of schools at his home; that said Salem-Oak Harbor petition purports to petition said defendant board of education to consolidate all of said Erie Local School District with the Salem-Oak Harbor Local School District pursuant to Section
"Plaintiff further says that said Erie Township Local School District of Ottawa County, Ohio, is a local district of the County School District of Ottawa County, Ohio, and has only an elementary school; that said Erie Local School District adjoins the Port Clinton City School District on the east and the Salem-Oak Harbor Local School District, on the west; and that both the Port Clinton City School District and the Salem-Oak Harbor School District have high schools.
"Further pleading, plaintiff says that at a regular meeting *249 of the defendant board of education held in the evening of May 1, 1958, said Port Clinton petition and said Oak Harbor petition were presented to defendant board of education by said county superintendent of schools; that defendant board of education continued said meeting to May 15, 1958, without action being taken on either of said petitions.
"Plaintiff believes, and alleges, that under the provisions of Sections 2311.231 and
Plaintiff prays for a declaratory judgment as to his rights and the rights of those similarly situated with him, subject to this action, to have the Port Clinton petition processed according to law and adjudging and declaring that by virtue of the statutes herein referred to, the defendant board of education has no legal right to transfer the Erie Local School District to the Salem-Oak Harbor Local School District until an election has been had and certified on the Port Clinton petition and for such other and further relief as may be just and proper.
Plaintiff, on behalf of himself and others of like interest and similarly situated, asks for an interpretation of Section
"* * * qualified electors of the area affected equal in number to not less than fifty-five per cent of the qualified electors voting at the last general election residing within that portion of a school district proposed to be transferred may propose, by petition, the transfer of a part or all of one or more local school districts within the county to an adjoining county school district or to an adjoining city or exempted village school district. *250 Said petition shall be filed at the office of the county superintendent of schools. The county superintendent shall cause the board of elections to check the sufficiency of signatures on said petition and shall present the petition to the county board of education at the next meeting of said board which occurs not later than thirty days following the filing of the petition. * * *
"* * *
"If the proposal was initiated by petition and effects one or more entire districts the county board shall, within sixty days following the filing of the petition, certify the proposal to the county board of elections of such counties as will be affected by the proposal in the manner and for the purposes hereinafter stated."
Plaintiff also seeks an interpretation of Section
"Notwithstanding Sections
The facts alleged in the petition embrace the prerequisites or conditions as a basis for suit for a declaratory judgment. There is shown a dispute or controversy as to legal rights under statutes which, if all necessary parties are before the court, requires judicial determination, there being present the condition of justiciability. Construction and interpretation of statutes is *251
a recognized function of declaratory action. American Life Accident Ins. Co. of Kentucky v. Jones, Admr.,
The controversy or dispute is patently between the plaintiffs and the Salem-Oak Harbor petitioners, the latter not a party to this suit nor represented by counsel at the hearing. The defendant school board, however, is intending to act on the petition of the Salem-Oak Harbor petitioners. Section
"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration."
The intention of the act is to ensure the presence, or at least service upon, all other interested persons who would be affected legally by the decision. The persons in the Salem-Oak Harbor petition would be legally affected and are both interested and necessary parties to this action. Such persons not being made parties, it is manifest that the court lacks jurisdiction, since without them the declaratory judgment would not terminate the controversy or uncertainty, which is the essential purpose of the declaratory action to accomplish. Borchard Declaratory Judgments (2 Ed.), 256. Section
In City of Zanesville v. Zanesville Canal Mfg. Co.,Trustee,
"However, one of the requisites to the rendition of a declaratory judgment is that all necessary parties be before the court. As has already been noted, Muskingum County, through its board of commissioners, was not made and did not become a party to the action. Is its absence fatal and of such moment as to constitute a jurisdictional defect which prevents a court otherwise having jurisdiction from entertaining and deciding the proceeding on its merits?" *252
On page 208, it is said:
"But whatever its position, Muskingum County can not be ignored. In our opinion it is both an interested and necessary party in the present action and the courts below lacked authority to render declaratory judgments in the absence of the county.
"`Ordinarily, all persons interested in the controversy are necessary parties to an action for declaratory relief.' Annotation, 87 A. L. R., 1244.
"It has been held that the `Declaratory Judgment Act is applicable only where there is a present, actual controversy, and only where justiciable issues are presented and all interestedpersons are made parties to the proceeding.' (Emphasis supplied.)Dobson v. Ocean Accident Guarantee Corp.,
"In the case of Adams v. Greenwich Water Co.,
"Following the same line, several cases are authority for the proposition that in an action for a declaratory judgment the presence of necessary parties is jurisdictional. Holland v.Flinn,
See, also, Schriber Sheet Metal Roofers, Inc., v.Shook,
Our conclusion in this case makes it unnecessary for us to examine the questions that might arise from the facts as to whether plaintiff has been diligent in prosecuting his claim before *253 the expiration of the sixty-day limitation in the statute, and, if so, can an election be authorized after the expiration thereof; whether the matter is moot; what priority, if any, one group of petitioners may have over the other in point of time of filing their petition with the county board of education; whether the provisions of the two statutes are mandatory or directory; and whether one statute is a special act constituting an exception to a general act.
The judgment of the Common Pleas Court is reversed and the cause is remanded to that court with instructions to dismiss the petition without prejudice.
Judgment reversed.
DEEDS, J., concurs.
Concurrence Opinion
Were it not for the decision of the Supreme Court in City ofZanesville v. Zanesville Canal Mfg. Co., Trustee,
I entertain some doubt as to whether the Oak Harbor petitioners are necessary parties, but inasmuch as they are to be affected by the declaration sought by the plaintiff, I am constrained to concede that under the Zanesville case, supra, the Common Pleas Court did not acquire jurisdiction in the instant case. *254
