Opinion
No. 39464
Decided November 17, 1965.
Municipal corporations — Plats — Approval by legislative authority — Certificate of clerk of council of action taken — Section 711.09, Revised Code — Statutory requirement not applicable to cities — Mandamus.
APPEAL from the Court of Appeals for Cuyahoga County.
This action in mandamus was instituted in the Court of Appeals, seeking a writ requiring the respondent, clerk of the city council of Cleveland, to issue a certificate, pursuant to the provisions of Section 711.09, Revised Code, setting forth the date of submission to the city council of Cleveland for action thereon of a certain subdivision plat of land within the city, to certify the failure of the city council to take any action on such plat within 30 days thereafter, and to make such certificate, together with the original linen tracing of the subdivision plat, available to relators.
Respondent's answer alleges that the subdivision plat has been assigned to the city planning committee for its consideration, that after it has acted thereon the city council will consider the question of approval or disapproval, and that Section 711.09, Revised Code, is applicable only to legislative authorities of villages and not to cities, and denies that there is any mandatory duty imposed upon respondent by law to issue such certificate as requested.
The Court of Appeals allowed the writ.
An appeal as of right brings the cause to this court for review.
Messrs. Kinchen, Matia Mays and Mr. Charles E. Merchant, for appellees.
Mr. Bronis J. Klementowicz, director of law, Mr. Daniel J. O'Loughlin and Mr. George J. Dinda, for appellant.
There is no mandatory duty specially enjoined by law upon the respondent as clerk of the city council of Cleveland to issue a certificate as requested by relators.
Section 711.09, Revised Code, upon which relators rely, provides in part:
"Whenever a city planning commission adopts a plan for the major streets * * * of a city or any part thereof * * * no plat of a subdivision within such city * * * shall be recorded until it has been approved by the city planning commission and such approval indorsed in writing on the plat. * * *
"Whenever a village planning commission * * * or * * * the legislative authority of a village, adopts a plan for the major streets * * * of such village or any part thereof, then no plat of a subdivision of land within such village shall be recorded until it has been approved by the village * * * legislative authority and such approval indorsed in writing on the plat.
"The approval of * * * the legislative authority of a village, required by this section, or the refusal to approve, shall be endorsed on the plat * * * and the certificate of * * * the clerk of such legislative authority * * * shall be issued on demand * * *." (Italics supplied.)
By the express terms of the statute above quoted, the duty to issue a certificate such as is sought by the relators herein devolves upon the clerk of a legislative authority of a village, but not of a city. The judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.