Summary
In Gallman v. Mercer Cty. Bd. of Cty. Comm. (1953), 159 Ohio St. 253, 257, 50 O.O. 277, 278, 112 N.E.2d 38, 40, the Ohio Supreme Court held that "[t]he only three matters as to which the action of the board may be reviewed on appeal are the necessity of the improvement, including the question whether the cost of the improvement will exceed its benefits, the boundaries of the assessment district, and the tentative apportionment of the assessment."
Summary of this case from Concerned Businessmen v. Bd. of CommrsOpinion
No. 33261
Decided April 22, 1953
County water supply system — Proceeding for construction by county commissioners — Statutory provisions complied with — Appeal by property owner — Written notice of intention to be filed, when — Section 6602-3c, General Code — Appeal to be perfected, when — Section 6602-3b, General Code.
Where, in proceedings by a board of county commissioners under Section 6602-17 et seq., General Code, for the construction of a water supply system, the board adopts a resolution of necessity in accordance with Section 6602-18, thereafter complies with all the provisions of such section, and adopts the improvement resolution in accordance with Section 6602-19, a property owner affected by such resolution may not appeal from the action of the board unless he gives notice in writing of an intention to appeal on or before the date of the passage of the improvement resolution, as provided in Section 6602-3 c, and perfects his appeal to the Probate Court within 10 days after the passage of such improvement resolution, as provided in Section 6602-3 b.
CERTIFIED by the Court of Appeals for Mercer county.
The appellant, the Board of County Commissioners of Mercer County, after the establishment of a sanitary sewer district east of the city of Celina, which district is known as the "Highland Park Sanitary Sewer District," proceeded to take the necessary steps to construct a water supply system under Section 6602-17 et seq., General Code. The area in the sanitary district, which was established as the result of a petition by property owners, is adjacent to part of the north shore of Grand Lake.
After borrowing money through the facilities of the Housing Home Finance Agency of the United States, the board engaged a consulting engineering firm and, after the necessary surveys and drawings, filed tentative assessments with its clerk, which assessments were figured in accordance with Section 6602-24.
On July 3, 1951, the board passed a "resolution of necessity," in accordance with Section 6602-18, and complied with all the provisions of that section, which are, inter alia, that such resolution shall contain a description of the boundaries of that part of the district to be assessed and shall designate when and where objections to the improvements, to the tentative assessment or to the boundaries of the assessment district will be heard by the board, the date of such hearing to be not less than 24 days after the date of the first publication of the resolution. As provided in such section, a notice of the time and place of the hearing was sent by mail to every owner of property to be assessed whose address was known, and a hearing was provided for all parties interested at the time and place fixed by the resolution and notice. Written objections to or endorsements of the proposed improvement, the character and termini thereof, the boundaries of the assessment district, and the tentative assessment were received by the board for a period of five days after the hearing, as provided by such section, the public hearing having been held on July 31, 1951. That public hearing was continued to August 31, 1951, at which time an announcement was made that the public hearings were concluded, and a resolution setting forth that fact was put upon the journal of the board on said last date.
On November 13, 1951, the board passed the "improvement resolution" ratifying the plans for the improvement, the character and termini thereof, the boundaries of the assessment district and the tentative assessment, all as provided by Section 6602-19.
On November 23, 1951, a notice of appeal was filed by the appellees, hereinafter called owners, with the Probate Court of Mercer County in accordance with Section 6602-3 b, which provides, inter alia, that any owner of property to be assessed or taxed under Section 6602-17 et seq., may appeal, as to the following matters, to the Probate Court from the determination of the board of county commissioners to proceed with the improvement: (1) The necessity of the improvement, including the question whether the cost of the improvement will exceed the benefits resulting therefrom, (2) boundaries of the assessment district, and (3) the tentative apportionment of the assessment.
That section provides, also, that the appeal must be perfected within 10 days after the passage of the resolution to proceed with the improvement. The appeal to the Probate Court was within 10 days. However, Section 6602-3 c provides that, where the improvement is located within two or more counties, any person may appeal to the Probate Court of the county in which his property to be assessed for the improvement is located; and, in addition, provides that any person desiring to appeal as to any of the questions shall, on or before the date of the passage of the improvement resolution, give notice in writing of an intention to appeal, specifying therein the matters to be appealed from.
It is conceded that no notice of an intention to appeal, as provided in Section 6602-3 c, was given by the owners.
After the various appeals by the owners were instituted in the Probate Court, all of them were consolidated.
The board filed motions to dismiss the appeals, the Probate Court found the motions well taken, and the consolidated appeals were dismissed.
The Court of Appeals, with one judge dissenting, reversed the judgment of the Probate Court and remanded the cause to that court for further proceedings.
The judges of the Court of Appeals, finding that the judgment, upon which they had agreed, is in conflict with a judgment pronounced by the Court of Appeals of the Second Appellate District, in the case of State, ex rel. Beigel, v. Brumbaugh, 63 Ohio Law Abs., 233 (motion to certify overruled and appeal as of right dismissed June 20, 1951, 155 Ohio St. 616), certified the record in the present case to this court for review and final determination.
Messrs. Ritter, Boesel Lord, for appellees.
Mr. Don W. Montgomery and Mr. Walter R. Bernard, prosecuting attorneys, Mr. John Hinders and Mr. Don M. Purdy, for appellant.
All parties in the present case agree that there is only one question presented to us for our decision, i.e., is an appeal from the action of a board of county commissioners, to proceed with an improvement to construct a water supply system, by the owners of a substantial portion of the property to be assessed for such improvement, which appeal is within 10 days after the passage of the resolution, in accordance with Section 6602-3 b, General Code, a valid appeal, or is it essential that such owners comply with the second paragraph of Section 6602-3 c, General Code, by giving notice in writing of their intention to appeal from the action of the board, on or before the date of the passage of the improvement resolution.
As stated, it is conceded that no notice in writing of an intention to appeal, as provided in Section 6602-3 c, was given.
In the majority opinion of the Court of Appeals, it is proclaimed that the provisions of Sections 6602-3 b and 6602-3 c are so inconsistent and lead to such absurd results that in order to reconcile them the court must substitute the word, "after," for the word, "before," in Section 6602-3 c, and only by so doing can the provisions be made consistent or reasonable.
We agree that in the process of judicial interpretation of statutes a court must, if possible, so construe them that absurd and ridiculous results are avoided, and frequently the word, "may," is interpreted to mean "shall" and vice versa. Assuredly, however, a court must diligently seek for a reasonable construction of a statute before it substitutes the word, "after," for the word, "before." We are of the opinion that the statutes involved in the present case can be reconciled without any such substitution.
The only three matters as to which the action of the board may be reviewed on appeal are the necessity of the improvement, including the question whether the cost of the improvement will exceed its benefits, the boundaries of the assessment district, and the tentative apportionment of the assessment.
Under Section 6602-18, the resolution of necessity passed by the board must include all three matters. After the resolution of necessity is passed, not less than 24 days notice must be given by publication and notice sent by mail to each owner of the property to be assessed, with information as to when and where objections, with reference to such three matters, will be heard by the board. After the public hearing, the board must receive written objections or endorsements for an additional period of five days, and only thereafter can the resolution to proceed with the improvement be passed.
Section 6602-19 gives the board authority to amend the plans for the improvement in the resolution to proceed, in reference to the three matters concerning which an appeal may be taken.
The foregoing provisions throw some light as to the reason the General Assembly provided not only that an appeal must be instituted within 10 days after the passage of the resolution to proceed with the improvement but also that a written notice of intention to appeal must be filed on or before the date of the passage of such resolution.
After receiving the objections and endorsements of the property owners affected by the improvement, as outlined in the resolution of necessity, if notices of intention to appeal are filed with the board before the passage of the resolution to proceed, it is quite conceivable that in such resolution the plans as outlined in the resolution of necessity will be so amended as to conform with the ideas of the proposed appellants or that the board will be induced not to proceed at all. At any rate, the General Assembly has provided that in order for an appeal to be perfected within 10 days after the passage of the resolution to proceed with the improvement, there must be filed, on or before the date of the passage of the improvement resolution, a written notice of an intention to appeal.
Since the General Assembly has provided the mechanics to perfect appeals from administrative boards to the courts, and since the court's function is to abide by the enactments of the legislative branch of the government, so far as they do not impinge upon constitutional provisions, the wisdom of the legislative enactments is solely a question for the legislative branch.
Since it is conceded that the owners in the present case did not file a written notice of intention to appeal from the action of the board, on or before the date of the passage of the resolution to proceed with the improvement, and since the filing of such notice of intention is a necessary part of the mechanics of effecting an appeal, it follows that the judgment of the Court of Appeals must be reversed and that of the Probate Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART and ZIMMERMAN, JJ., concur.