Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of OhioAug 17, 1931
40 Ohio App. 346 (Ohio Ct. App. 1931)
40 Ohio App. 346178 N.E. 32010 Ohio Law Abs. 715

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Decided August 17, 1931.

Municipal corporations — President of council is acting mayor, when — Section 4239, General Code — Annexation ordinance valid although absent councilman not served with special meeting notice — Section 3520, General Code — Newspaper of general circulation in county, whether subscriptions paid or unpaid.

1. In mayor's absence, president of council was acting mayor, with all mayor's powers (Section 4256, General Code).

2. Failure to leave notice of special council meeting at absent councilman's residence did not invalidate ordinance authorizing annexation passed at special meeting, where leaving notice would have been useless (Section 4239, General Code).

3. Newspaper may be of "general circulation" in county within statute requiring publication of notice concerning annexation petition, although circulation need not consist exclusively of paid subscribers (Section 3520, General Code).

4. Newspaper with partly unpaid circulation of over 10,000, extending throughout nearly every section of county, held newspaper of "general circulation" in county, within statute requiring publication of notice concerning annexation petition (Section 3520, General Code).

ERROR: Court of Appeals for Cuyahoga county.

Mr. Edward Blythin, for plaintiff in error.

Messrs. Boyd, Brooks Wickham, for defendant in error.

This case comes into the Court of Appeals on a petition in error seeking a reversal of the judgment of the common pleas court which denied the relief asked for in the petition of the plaintiff, Walter P. Ambos, and dismissed the same.

The petition filed in the common pleas court sought to enjoin certain annexation proceedings had before the county commissioners of Cuyahoga county, under favor of Sections 3532, 3553 and 3554, General Code, which authorized the bringing of such petition to enjoin.

It appears that the council of Moreland Hills consists of six members; that five of them were present in the village; that the sixth one, John Hooper, was in Florida, being absent from the state from about December to April. Mayor Frank J. Lynch was in California, being absent from the state from about March 1st to May 1st. In the absence of the mayor, Councilman Homer L. Schneider, the president of the council, was the acting mayor, under the statute, and had all the powers of the mayor. Section 4256, General Code; State v. Lanser, 111 Ohio St. 23, 144 N.E. 734.

The mayor called a special meeting of the council for March 21st to discuss the proposed annexation of a part of Orange township to Moreland Hills village. Some two weeks before the meeting was held, Mr. Schneider and the other members of Moreland Hills council met with a group of people and discussed the proposed annexation. About a week before the meeting was called, Mr. Schneider personally notified five councilmen of the village of the time and place and purpose thereof. He went to Mr. Hooper's residence to notify him, and found that he was in Florida. Mr. Hooper testified that he could not reasonably have been reached while in Florida. The meeting was held at the time and place specified by Mr. Schneider. Five councilmen were present, and the ordinance was passed unanimously authorizing such annexation to be made and directing the solicitor of the corporation to prosecute the proceedings necessary to effect it.

Subsequent thereto a petition was filed with the board of county commissioners of Cuyahoga county by the agent of the village, such agent being the solicitor. Section 3520, General Code, requires that the agent shall cause a notice containing the substance of the petition, and the time and place when and where it will be heard, to be published in a newspaper printed and of general circulation in the county for the period of six consecutive weeks. Such notice was inserted in a newspaper known as the Heights Press. A hearing was had before the commissioners, and the same was postponed from time to time until December 30, 1930. The commissioners granted the application for annexation.

Within sixty days from the filing of the papers by the county commissioners with the recorder, as required by law, the present petition was filed in the court of common pleas, praying an injunction restraining the Moreland Hills village clerk from presenting the record and transcript to the council in conformity with Section 3532, General Code.

The errors complained of are principally two: First, that the ordinance of the village of Moreland Hills authorizing the annexation was void because improperly passed for want of statutory notice to Councilman Hooper; and, second, that the newspaper in which the notice of the hearing before the county commissioners was published, the Heights Press, was not a newspaper of general circulation in Cuyahoga county.

Section 4239, in part, reads as follows: "The mayor, or any three members may call special meetings upon at least twelve hours' notice to each member, served personally or left at his usual place of residence."

It is clear from this section that the mayor, or the president of the council acting in the place of the mayor, has authority to call such special meeting.

Was the action taken at the special meeting vitiated by failure to serve notice of the meeting upon Councilman Hooper, who was absent from the state and was somewhere in Florida?

The case of Rafferty v. Clermont, 180 Iowa 1391, 164 N.W. 199, very clearly involves a question similar to the one in the case at bar. On page 1399 of 180 Iowa, 164 N.W. 199, 202, the court quotes from a Tennessee case (Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S.W. 1075, 61 L.R.A., 888) as follows: "We are of opinion that when a member of the council removes from the state or is continuously absent from the state, and when he is shown to have been absent from the state and beyond reach on the occasion and at the time of the call, as appears in this case, it is not legally practicable to give him notice of called meetings."

And on page 1400 of 180 Iowa, 164 N.W. 199, 203, the court said: "There is but one way to hold with the appellant, and that is to declare that this statute is absolutely mandatory, and that all reason must fail in its consideration. To do this, we must disregard the weight of authority and, in effect, overrule the holdings elsewhere * * *."

In Russell v. Wellington, 157 Mass. 100, at page 104, 31 N.E. 630, the court said: "We do not regard the provision requiring notice to be left at the place of residence as mandatory * * *."

The effect of the holdings, by great weight of authority, seems to be that similar provisions to the one under discussion are regarded as directory only and where, as in this case, the leaving of the notice at the usual place of residence of Councilman Hooper would have served no purpose, and would in fact have been a useless proceeding, the requirement of notice need not be complied with.

There is an additional fact which appears in the record, namely, that, after Councilman Hooper came back from Florida, action was taken by the council by way of ratifying the proceedings which took place at the special meeting in the absence of Councilman Hooper, and he at that time voted with the rest of the councilmen in the affirmative.

We hold, therefore, that the failure to give notice to Councilman Hooper under the particular circumstances does not vitiate the action taken by the five councilmen who were present at the special meeting and authorized the proceedings for annexation.

We shall now proceed to the other principal contention, namely, that notice of the hearing required by law, which was published in the Heights Press, was not legal, because the Heights Press is not a newspaper of general circulation within Cuyahoga county. The evidence discloses that the Heights Press has a paid circulation of 2,625 subscribers; that, while these subscribers are largely in the Heights region, they are scattered nevertheless through various parts of the county; that it has an unpaid circulation of 8,000, and altogether its actual circulation is between ten and eleven thousand, extending throughout nearly every section of this county. As we understand the law, it is that, for a newspaper to be regarded as a newspaper of general circulation within the county, such circulation need not necessarily consist exclusively of paid subscribers; that the purpose of the law is clear, namely, that the notice should be inserted in a newspaper which people in this county are likely to read, and that, when the circulation is extensive throughout the county, it makes no difference whether it consists of paid subscribers or nonpaying recipients of the same.

We hold, therefore, that the Heights Press, under the evidence, must be legally regarded as a newspaper of general circulation within the county.

There are no other questions of importance before us, and upon the above considerations the judgment of the common pleas court is affirmed.

Judgment affirmed.

VICKERY and WEYGANDT, JJ., concur.