Opinion
No. 90-39
Submitted April 17, 1990 —
Decided July 18, 1990.
Annexation — Injunction against annexation — R.C. 709.07, construed.
IN PROHIBITION.
ON MOTION FOR SUMMARY JUDGMENT.
On November 16, 1989, the Butler County Board of Commissioners approved annexation of some three hundred twelve acres of land to the city of Middletown, which is located in Butler County. The annexation proceedings were initiated by petition of owners of real estate in the annexed territory. The territory lies in both Butler and Warren Counties, with the larger part in Warren County. However, most qualified voters in the territory reside in Butler County. Therefore, under R.C. 709.11, the annexation proceedings took place before the Butler County Board of County Commissioners.
On December 15, 1989, two boards of township trustees, whose townships included territory to be annexed in Warren County, and several Butler County owners of property in the territory filed an action to enjoin the annexation in the Court of Common Pleas of Warren County under R.C. 709.07. Later the same day, they filed an appeal of the Butler County annexation proceedings in the Court of Common Pleas of Butler County. Thereafter, they apparently also sought an injunction under R.C. 709.07 before the Court of Common Pleas of Butler County.
The respondent administrative judge of the respondent Court of Common Pleas of Warren County, where the first such challenge was filed, ordered a stay of further annexation proceedings. Relators, Middletown officials, then brought this original action to prohibit respondents, the Warren County trial court and its judges, from exercising further jurisdiction in the action for injunction.
On January 12, 1990, we granted a motion to stay proceedings in the respondent court (see 48 Ohio St.3d 706, 549 N.E.2d 1192), and on January 24, 1990, we granted a motion for an alternative writ, ordering respondents to show cause why a peremptory writ should not be granted (see 48 Ohio St.3d 708, 550 N.E.2d 480). Thereafter, respondents filed a motion to dismiss, which this court ordered treated as a motion for summary judgment.
The cause is now before the court on respondents' motion for summary judgment.
Sheldon A. Strand, director of law, Squire, Sanders Dempsey, John R. Gall, Gregory Lashutka and Marilyn J. Marshall, for relators.
Timothy J. Oliver, prosecuting attorney, Michael E. Powell and William B. Singer, for respondents.
R.C. 709.07 provides in part:
"(A) Within sixty days from the filing of the papers relating to the annexation with the auditor or clerk as provided by division (D) of section 707.04 or by section 709.033 of the Revised Code, any person interested, and any other person who appeared in person or by an attorney in the hearing provided for in section 709.031 of the Revised Code, may make application by petition to the court of common pleas praying for an injunction restraining the auditor or clerk from presenting the annexation petition and other papers to the legislative authority. * * *
"* * *
"(B) The petition shall be filed and docketed in the office of the clerk of the court of common pleas, naming the auditor or clerk of the municipal corporation to which annexation is proposed * * * and the agent of the petitioners for annexation as defendants, and summons shall be served in the manner provided in Chapter 2703. of the Revised Code. * * *" (Emphasis added.)
The question before us is whether " the court of common pleas," as used in this section, is a jurisdictional limitation confining these actions to the court of common pleas of the county in which the annexation proceedings took place. We hold that the term is such a jurisdictional limitation and grant a writ of prohibition restraining respondents from taking further action in the Court of Common Pleas of Warren County, since the annexation proceedings were held in Butler County.
A writ of prohibition will not issue unless the relator proves that (1) the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of that power is unauthorized by law; and (3) refusal of the writ would result in injury for which no other adequate legal remedy exists. State, ex rel. Coyne, v. Todia (1989), 45 Ohio St.3d 232, 236, 543 N.E.2d 1271, 1275.
Respondents argue that all courts of common pleas have general equity powers, a court of general jurisdiction has authority to determine its own jurisdiction, State, ex rel. Butler Cty. Bd. of Commrs., v. Court (1978), 54 Ohio St.2d 354, 8 O.O. 3d 359, 376 N.E.2d 1343, and that a writ of prohibition should not issue unless jurisdiction is patently and unambiguously lacking. State, ex rel. Tilford, v. Crush (1988), 39 Ohio St.3d 174, 529 N.E.2d 1245. They argue that the reference in R.C. 709.07 to " the court of common pleas" is not a patent and unambiguous restriction of the action to the court of common pleas of the county where the annexation proceedings took place and, therefore, that relators have an adequate remedy by motion to dismiss for lack of jurisdiction and/or venue, and ultimately to appeal if the motion is denied.
We acknowledge that, standing alone, the reference in R.C. 709.07 to "the court of common pleas" is ambiguous. However, the term does not stand alone.
R.C. 709.02 provides in part:
"The owners of real estate adjacent to a municipal corporation may, at their option, cause such territory to be annexed thereto * * *. Application for such annexation shall be by petition, addressed to the board of county commissioners of the county in which the territory is located * * *."
R.C. 709.11 then provides in part:
"When the territory sought to be annexed to a municipal corporation is partly in the county in which such municipal corporation is situated and partly in another county, the annexation proceeding shall be in that county in which there is the largest number of qualified voters residing in the territory sought to be annexed."
R.C. 709.03 provides in part:
"The petition required by section 709.02 of the Revised Code shall be filed in the office of the board of county commissioners * * *, and shall * * * be filed in the office of the county auditor * * *." (Emphasis added.)
R.C. 709.033 then provides for a decision on the petition by the board of county commissioners after hearing. If the board approves the petition, it must enter and send its orders and other documents to the auditor or clerk of the municipal corporation to which annexation is proposed.
Finally, R.C. 709.07(A) states:
"Within sixty days from the filing of the papers relating to the annexation with the auditor or clerk as provided by division (D) of section 707.04 or by section 709.033 of the Revised Code, any person interested, and any other person who appeared in person or by an attorney in the hearing * * * may make application by petition to the court of common pleas * * *."
Considering all these sections in pari materia, we find that the reference to the court of common pleas in R.C. 709.07(A) is consistent with the reference to the county auditor in R.C. 709.03. Contextually, there is no doubt that R.C. 709.03 means the county auditor of the same county in which the board of county commissioners conducted proceedings. Therefore, we construe R.C. 709.07 to make the same kind of reference. Clearly, such a restriction is also jurisdictional because it limits where such an action may be brought to a specific court.
Therefore, we hold that the Court of Common Pleas of Warren County is without jurisdiction to consider the action under R.C. 709.07, since that section limits jurisdiction in the case to the Court of Common Pleas of Butler County where the annexation proceedings took place. Accordingly, we overrule respondents' motion for summary judgment. Moreover, although we overrule the motion for summary judgment, we find that no facts remain in dispute. That being the case, and with our construction of R.C. 709.07, we grant a peremptory writ prohibiting respondents from entertaining jurisdiction and proceeding further in the action to enjoin the annexation proceedings held in Butler County.
Writ allowed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.