Opinion
No. 33304
Decided October 7, 1953.
Municipal corporations — Detachment of territory and erection of new township — Petition filed with board of elections — Section 3577-1, General Code — Duty of board — Determination whether territory contiguous to adjoining township — Township not "adjoining," when — Corporate limits of municipality identical with those of township.
1. Where a petition seeking detachment of an area from a village and its erection into a new township has been filed with a board of elections pursuant to Section 3577-1, General Code, it is the duty of that board, in determining whether the petition "conforms to the requirements" of that statute, to determine whether the area seeking detachment is in fact contiguous to an adjoining township.
2. After the corporate limits of a village become identical with those of a township, the township may not be considered an "adjoining township" within the meaning of those words as set forth in the first sentence of Section 3577-1, General Code.
IN MANDAMUS.
This is an original action instituted in this court for a writ of mandamus, ordering the members of the respondent Lorain County Board of Elections to order an election as requested by relator and others in a petition filed with said board pursuant to the provisions of Section 3577-1, General Code, which read so far as pertinent:
"The inhabitants residing within any portion of a village, such portion being contiguous to an adjoining township, and comprising not less than one thousand five hundred acres of land, may file with the board * * * of elections in said county a petition requesting that an election be held to obtain the sense of the electors residing within said portion of such village upon the question of the detachment of such portion from such village, or, upon the question of the detachment of such portion from said village and the erection of such detached portion into a new township. Said petition shall contain an accurate description of the territory sought to be detached, together with an accurate map or plat thereof, and, if the erection of a new township is also sought, the name proposed for such new township; also, the name of a person to act as agent of the petitioners, and shall contain signatures equal in number to fifteen per cent of the total number of votes cast at the last general election in such territory.
"Within ten days after the filing of said petition * * * said board shall determine whether said petition conforms to the requirements hereof. If it does not, no further action shall be taken thereon. If it does, said board shall order an election, as prayed for in said petition * * *." (Emphasis supplied.)
The petition so filed with respondent board requested an election on the question of the detachment of a portion of the village of Avon from that village and its erection into a new township to be named North Avon. The boundaries of that portion of the village of Avon, if detached therefrom, would be contiguous only to the boundaries of the village of Sheffield, the village of Avon Lake, and the village of Westlake. The boundaries of the village of Sheffield are identical with those of what had been the township of Brookside, the boundaries of the village of Avon Lake are identical with those of what had been the township of Avon Lake, and the boundaries of the village of Westlake are identical with those of what had been the township of Dover.
Section 3512, General Code, read:
" When the corporate limits of a city or village become identical with those of a township, all township offices shall be abolished, and the duties thereof shall thereafter be performed by the corresponding officers of the city or village, except that justices of the peace and constables shall continue the exercise of their functions under municipal ordinances providing offices, regulating the disposition of their fees, their compensation, clerks and other officers and employees. Such justices and constables shall be elected at municipal elections. All property, moneys, credits, books, records and documents of such township shall be delivered to the council of such city or village. All rights, interests or claims in favor of or against the township may be enforced by or against the corporation." (Emphasis supplied.)
Respondent filed a general demurrer and the parties agreed that the ruling on that demurrer should determine the judgment to be rendered by the court.
Messrs. Kuth Meyers and Mr. W.D. Cole, for relator.
Mr. Paul J. Mikus, prosecuting attorney, Mr. James Christie and Mr. Harold Ewing, for respondent.
Relator contends that, where a petition seeking detachment of an area from a village and its erection into a new township has been filed with a board of elections pursuant to Section 3577-1, General Code, it is not the duty of that board, in determining whether the petition "conforms to the requirements" of that statute, to determine whether the area seeking detachment is in fact contiguous to an adjoining township.
However, the words of the statute give the right to file such a petition only to "inhabitants residing within any portion of a village, such portion being contiguous to an adjoining township." If the inhabitants of a portion of a village filing such a petition are not inhabitants of a "portion * * * contiguous to an adjoining township," the statute does not provide for them. Such inhabitants are not authorized to file such a petition with the board. If they do, the board is certainly not under any duty to act with reference to the petition. At the outset, therefore, the board must, in order to determine whether there is any authority for filing the petition, determine whether the portion of the village sought to be detached is contiguous to some adjoining township.
Relator next contends that, even after the corporate limits of a village become identical with those of a township, the township may be considered an "adjoining township" within the meaning of those words as set forth in the first sentence of Section 3577-1, General Code. The words of Section 3512, General Code, and especially of the last sentence of that section demonstrate the fallacy of any such contention. See McGill v. State, 34 Ohio St. 228, 251. If, as the words of that section state, "when the corporate limits of a * * * village become identical with those of a township, * * * all rights, interests or claims in favor of or against the township may be enforced by or against the corporation [the village]," then it necessarily follows that such township ceases to have as a township any such "rights, interests or claims." It no longer is able to enjoy or exercise "the rights and privileges conferred upon it by law." See Section 3244, General Code. It can hardly be said that it is, under the latter statute, any longer "a body politic and corporate," since, as the statute states, the only "purpose" of having it as such is for "enjoying and exercising" such rights and privileges.
A contrary conclusion might be suggested by a possible interpretation of the language of Section 3249, General Code, standing alone. However, when the words of that section are read with the words of Sections 3244 and 3512, General Code, it becomes apparent that any new township, erected out of the portion of township territory included within the limits of a municipal corporation, thereupon ceases, by reason of the provisions of the latter two sections, to have any existence as a township. This conclusion is further fortified by the language of Section 3250-1, General Code ("upon the erection of such new township the territory lying within the limits of the city or cities in the original township shall be considered as not being located in any township"), and Section 3251, General Code ("the township in which the corporation or the greater part of it was before situated"). As relator points out, the provisions of Section 3250-1, General Code, do relate only to cities and not to villages. However, they certainly represent an expression of the legislative understanding as to what happens to a township after the corporate limits of a municipal corporation become identical with those of a township.
Relator relies upon State, ex rel. Vocke, v. Village of Brooklyn Heights, 122 Ohio St. 311, 171 N.E. 404. However, that case did not relate to the continued existence of a township but only to the continued existence of the former township and the continuing state office of justice of the peace, as specifically provided for by the provisions of Section 3512, General Code.
In providing, in Section 3577-1, General Code, for the detachment of a portion of a village only where such portion was "contiguous to an adjoining township," the General Assembly may well have had in mind the desirability of avoiding the re-creation of township government except in an area where such township government was already in existence. It is not for this court to question the wisdom of that judgment of the General Assembly. It is sufficient that it appears that there was a reasonable basis for that judgment.
Our conclusion is that the demurrer of respondent should be sustained and the writ denied.
Writ denied.
WEYGANDT, C.J., MIDDLETON, HART, ZIMMERMAN and STEWART, JJ., concur.
MATTHIAS, J., not participating.