Summary
construing amendment to Ohio Rev. Code § 709.16 effective June 7, 1986
Summary of this case from Penn v. Rockwell Intern. Corp.Opinion
No. 88-518
Submitted March 29, 1989 —
Decided June 14, 1989.
Annexation — Amendment to R.C. 709.16 may not be applied retroactively — Legislature did not expressly make amendment retroactive — "Substantive-procedural" analysis may not be addressed, when — Agricultural society does not have "freehold estate" in fairgrounds by virtue of R.C. 1711.31.
APPEAL from the Court of Appeals for Warren County, No. CA86-09-061.
On April 10, 1986, the council of the appellee, city of Lebanon, enacted three ordinances, pursuant to R.C. 709.14, authorizing the annexation of three tracts of real estate contiguous to the city. Petitions for annexation were filed with the Board of Commissioners of Warren County ("board") the next day. On April 15, the council adopted three new ordinances authorizing, in effect, the filing of amended petitions, apparently in order to make technical changes reflecting the fact that each of the three tracts was solely owned by Warren County. These amended petitions were filed the next day.
The trial court found that "one tract consists of 62.213 acres and is presently occupied by the Warren County Agricultural Society. The second tract consists of 103.132 acres upon which is located the Warren County Justice Center and the Common Pleas Courthouse. The third tract consists of 8.29 acres and is technically a part of the second tract, but separated from it by State Route 48."
Appellant board refused to take action upon the petitions and, instead, on May 6, 1986, filed the instant action seeking a declaratory judgment as to the proper procedure to follow in acting upon them. Named as defendants in this action were the appellee, appellant Warren County Agricultural Society ("Agricultural Society") and the Trustees of Turtlecreek Township. The appellee city filed an answer and cross-petition, seeking, inter alia, a writ of mandamus directing the appellant board to approve the three amended petitions, as required by then R.C. 709.16. Appellant Agricultural Society answered both pleadings, claiming an equitable interest in the Warren County fairgrounds property. The cause was submitted to the court upon the stipulations, exhibits and briefs of the parties.
The Trustees of Turtlecreek Township filed no responsive pleadings, and are not a party to this appeal.
At the time of the filing of the amended annexation petitions, R.C. 709.16 provided, in pertinent part:
"(B) If the only territory to be annexed is contiguous territory owned by the municipal corporation seeking annexation and if such territory is located entirely within the same county as the municipal corporation seeking annexation, or if the only territory to be annexed is contiguous territory owned by the county, upon receipt of the petition required by section 709.15 of the Revised Code, the board of county commissioners shall, by resolution, approve the annexation and make such adjustments of funds, unpaid taxes, claims, indebtedness, and other fiscal matters as the board determines to be proper. The annexation shall be complete upon the entry, pursuant to the board's resolution, of an order upon the journal of the board of county commissioners authorizing such annexation. Section 709.17 of the Revised Code does not apply to an annexation of territory described in this division." (Emphasis added.) (140 Ohio Laws, Part I, 102.)
Prior to the rendering of judgment by the trial court, the General Assembly enacted H.B. No. 981, effective June 7, 1986, which amended R.C. 709.16, in pertinent part, as follows:
"(C) If the only territory to be annexed is contiguous territory owned by the county, upon receipt of the petition required by section 709.15 of the Revised Code, the board of county commissioners, by resolution, may disapprove the annexation, or may approve the annexation and make such adjustments of funds, unpaid taxes, claims, indebtedness, and other fiscal matters as the board determines to be proper. The annexation shall be complete upon the entry, pursuant to the board's resolution, of an order upon the journal of the board authorizing such annexation.
"(D) The board of county commissioners shall act upon a petition for annexation filed by a municipal corporation under this section within thirty days after receipt of the petition * * *." (Emphasis added.) (141 Ohio Laws, Part III, 6158, 6162-6163.)
The amendments contained in subsection (C) were first added by S.B. No. 238, effective May 23, 1986, some five weeks after the filing of the amended annexation petitions. (141 Ohio Laws, Part I, 488, 492.)
The trial court determined that these newly enacted provisions were "procedural" in nature, and thus could be applied retrospectively to the petitions filed here. The court found that appellant Agricultural Society had no ownership interest in the fairgrounds property, and rejected appellee's constitutional challenge to the amended statute. Finally, the court ordered that a writ of mandamus issue directing appellant board to proceed with the annexation petitions before it in accordance with R.C. 709.16, as effective June 7, 1986.
The court of appeals reversed in part, holding that retroactive application of H.B. No. 981 would deprive the city of a vested, substantive right to mandatory approval of its annexation petitions as provided under the former law, and was thus violative of the proscription against retroactive laws contained within Section 28, Article II of the Ohio Constitution. The court modified the writ of mandamus to reflect that the version of R.C. 709.16 existing on the date on which this action was filed was to be applied by appellant board.
Section 28, Article II of the Ohio Constitution provides in part:
"The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts * * *."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Timothy A. Oliver, prosecuting attorney, and Michael E. Powell, for appellant Warren County Board of Commissioners.
Kaufman, Florence Rittgers and Mark Florence, for appellant Warren County Agricultural Society.
Manley, Burke Fischer, Timothy A. Fischer, Gray Duning and J. William Duning, for appellee.
The central issue before us in this case is whether the amended provisions of R.C. 709.16, effective June 7, 1986 (H.B. No. 981), are applicable to action by the board of commissioners on the three amended annexation petitions filed with the board by the city on April 16, 1986. For the reasons which follow, we answer such query in the negative and thus affirm the court of appeals, albeit on different grounds.
The lower courts approached this issue by analyzing whether H.B. No. 981 changed R.C. 709.16 in a manner which affected "substantive" rights, and is thus applicable only prospectively, or whether the change affected only "procedural" rights, thus permitting a retrospective application of H.B. No. 981 which would not violate Section 28, Article II of the Ohio Constitution. This determination was premature, however, since there had been no prior determination that the statute had legislatively been drafted to apply retroactively.
"The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply. Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution. * * *" (Emphasis added.) Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus.
R.C. 1.48 codifies the long-standing rule that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective." Because H.B. No. 981 is not expressly made retrospective, we hold that it is to operate prospectively only ( i.e., to annexation petitions filed on or after its effective date, June 7, 1986). In such an instance, a reviewing court need not, and may not, engage in constitutional analysis of whether such enactment is "substantive" or "procedural" in nature. Van Fossen, supra, at 105-106, 522 N.E.2d at 495. Appellant board must apply the provisions of R.C. 709.16 herein as they existed on April 16, 1986.
The court of appeals utilized May 6, 1986, the date of the filing of the appellant board's complaint seeking declaratory judgment, as the operative date. Although it makes no practical difference in this case, we would note that April 16, 1986, the date the amended annexation petitions were filed, is the appropriate date, as it was on this day that the board was first called upon to act.
Appellant board also argues, as it did in the courts below, that the constitutionality of the retroactive application of H.B. No. 981 was not properly before the lower courts because the Attorney General was not added as a party to this action pursuant to R.C. 2721.12. This argument is without merit. It is apparent from the language of R.C. 2721.12 that it applies only to cases seeking declaratory judgment which are filed, at least in part, for the purpose of challenging the constitutionality of a statute, ordinance or franchise. See Malloy v. Westlake (1977), 52 Ohio St.3d 103, 6 O.O. 3d 329, 370 N.E.2d 457. This is not such a case. In fact, as explained above, no constitutional issues are presented in this case, due to the operation of R.C. 1.48.
R.C. 2721.12 provides in pertinent part:
"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. * * * [I]f any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and shall be heard."
Inasmuch as H.B. No. 981 is thus inapplicable to the petitions at issue here, appellant board's arguments as to the scope of discretion granted to county commissioners by these amendments, and whether H.B. No. 981 violates the "one-subject rule" of Section 15(D), Article II of the Ohio Constitution, will not be addressed.
Finally, appellant Agricultural Society maintains that it is a separate "owner," for purposes of annexation, of the 62.213-acre tract of land it occupies by virtue of R.C. 1711.31. We do not agree. The grant of the power of "control and management" of the fair-grounds occupied by the Agricultural Society, by virtue of R.C. 1711.31, does not create a "freehold estate" in such land required by R.C. 709.02. The sole "owner," for purposes of R.C. 709.02, of lands occupied by an agricultural society pursuant to R.C. 1711.31 is the title holder of such lands, i.e., the board of county commissioners.
R.C. 1711.31 provides in pertinent part:
"When the title to grounds and improvements occupied by an agricultural society is in the board of county commissioners, the control and management of such lands and improvements shall be vested in the board of directors of such society so long as they are occupied by it and used by it for holding agricultural fairs. * * *"
R.C. 709.02 provides in pertinent part:
"As used in sections 709.02 to 709.21 and 709.38 and 709.39 of the Revised Code, `owner' or `owners' means any adult individual seized of a freehold estate in land who is legally competent and any firm, trustee, or private corporation that is seized of a freehold estate in land * * *."
For all the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
Interested readers of this case should compare the "reasoning" and result announced by today's majority with this court's recent pronouncement in EPI of Cleveland, Inc. v. Limbach (1989), 42 Ohio St.3d 103, 537 N.E.2d 651, a case decided less than two months ago. The retrospective application of statutes seems to be a floating concept for a majority of this court — applied when necessary to accomplish a philosophical bias but abhorred when a party does not possess a favored status.
One wonders how long respect can be maintained for such peripatetic jurisprudence.
SWEENEY, J., concurs in the foregoing dissenting opinion.