Opinion
Nos. 37,356 and 37,357
Decided August 3, 1968.
Counties — Regional airport authority — County commissioners — Resolution creating authority — Legislative action — Not appealable.
The resolution of a board of county commissioners which, with the similar action of another county, creates a regional airport authority pursuant to Chapter 308, Revised Code, is an exercise of legislative power and is not subject to judicial review.
Mr. Thomas Murray, Sr., and Messrs. Murray Murray, for appellants.
Mr. George C. Steinemann, prosecuting attorney, and Mr. Dean S. Lucal, for appellees.
On June 24, 1968, the Board of County Commissioners of Erie County passed a resolution creating a Regional Airport Authority in conjunction with Ottawa County. The statutory authority for such legislation and the conditions necessary for such action are found in Chapter 308, Revised Code.
On July 2, 1968, appellants Stein and Springer filed notices of appeal in this court and with the board of county commissioners. Appellants claim, and it is not denied by the appellees, that subsequent to the filing of the notices of appeal the commissioners have taken further steps to implement the resolution of June 24. Appellants now move this court for an injunction prohibiting the commissioners from taking any further action pending determination of these appeals.
The appellee commissioners have filed a motion to dismiss the appeals for the reason that the resolution of June 24 is nonappealable and, hence, this court has no jurisdiction.
As all parties concede, time is of the essence in these appeals and this court will refrain from writing any lengthy decision.
It is the considered opinion of this court that the resolution of the commissioners creating a Regional Airport Authority under the provisions of Chapter 308, Revised Code, is not an appealable order and, hence, this court has no jurisdiction to entertain any appeals or issue any injunctions pursuant to any appeals.
The county commissioners, when creating a Regional Airport Authority, are acting in a legislative capacity and are not performing a judicial act or exercising judicial discretion. Any discretion exercised in passing this resolution is legislative and not judicial.
The Legislature of this state has, in certain situations, provided for judicial review of decisions of county commissioners and the courts of this state have followed this mandate. These limited situations wherein the decisions of county commissioners are subject to judicial review have been carefully defined and limited by the courts lest the legislative power and discretion of the county commissioners be so eroded as to render all decisions by those bodies reviewable in the courts. The Legislature of Ohio never intended that the courts should substitute their judgment for that of the county commissioners in matters that involve the legislative discretion of the county commissioners. 14 Ohio Jurisprudence 2d, Counties, Section 57. See, also, In re Application of Latham, 5 Ohio App.2d 187; Berg v. Struthers, 176 Ohio St. 146; Ramy v. Kimes, 175 Ohio St. 197; Mentor Lagoons v. Board of Commissioners, 3 Ohio App.2d 286; Stanton v. Tax Commission, 114 Ohio St. 658; 10 Ohio Jurisprudence 2d 372-374.
The notice of appeal and motion for injunctive relief in each of the above captioned cases is dismissed. Exceptions saved to the respective parties.