174 N.E.2d 259
No. 36656Supreme Court of Ohio.
Decided April 26, 1961.
Municipal corporations — Annexation of territory — Petition for, not misleading or inaccurate, when — Action to enjoin — Constitutional question — Not properly raised, when — Not decided until necessity arises for decision.
1. An action to enjoin the auditor and clerk of a municipality from taking favorable action on a petition by a resident freeholder for the annexation of territory to the municipality, which petition contains the language, “for municipal purposes,” does not properly raise a constitutional question concerning the application of Section 3311.06, Revised Code, under the ten-mill-limitation provisions of Section 2, Article XII of the Constitution of Ohio.
2. Constitutional questions will not be decided until the necessity for such a decision arises on the record before the court. (State, ex rel. Herbert, v. Ferguson, Aud., 142 Ohio St. 496, approved and followed.)
3. A petition by a resident freeholder for the annexation of territory, which contains the language, “for municipal purposes, according to the statutes of Ohio,” is neither misleading nor inaccurate and is not violative of the provisions of either Section 709.02 or 3311.06, Revised Code.
APPEAL from the Court of Appeals for Lucas County.
An annexation petition was filed February 27, 1959, with the Lucas County Board of County Commissioners by one resident freeholder (the only one residing in the territory to be annexed), seeking to annex a portion of Washington Township, Lucas County, to the city of Toledo. After hearing, the petition was granted.
Within the 60-day statutory time limit after the certification of the transcript, maps and petition to the council of the city of Toledo, the plaintiffs, appellants herein, brought an action to enjoin the defendants, the clerk of the city of Toledo and the auditor of the city of Toledo, appellees herein, from taking any further action upon the certified transcript, petition, map or plat of the territory sought to be annexed.
The Common Pleas Court of Lucas County granted the injunction prayed for.
Upon appeal on questions of law and fact, the Court of
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Appeals rendered judgment for the defendants, denying the injunction and remanding the cause.
This cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Edward G. Harris, for appellants.
Mr. Louis R. Young, director of law, Mr. Reno Riley and Mr. Robert Dorrell, for appellees.
O’NEILL, J.
The annexation petition, as filed, prayed that the territory be annexed to the city of Toledo “for municipal purposes, according to the statutes of Ohio.”
Appellants contend that if this annexation is completed the unvoted mandated tax levies imposed upon them by reason of overlapping school districts will exceed the constitutional limitation established by Section 2, Article XII of the Ohio Constitution, and, therefore, the annexation would be unconstitutional.
It is not necessary for this court to consider the constitutional questions raised by appellants as those questions are not directly before the court by this appeal. Adequate remedies are available to appellants for determination of these questions at the appropriate time. State, ex rel. Herbert, v Ferguson, Aud., 142 Ohio St. 496, 52 N.E.2d 980; Belden v Union Central Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629; American Cancer Society, Inc., v. City of Dayton, 160 Ohio St. 114, 114 N.E.2d 219.
The question to be decided is whether a petition by a resident freeholder for the annexation of territory, which petition contains the language, “for municipal purposes, according to the statutes of Ohio,” is valid under the provisions of Sections 709.02 and 3311.06, Revised Code.
Appellants contend that the language quoted above invalidates the petition, and they cite as authority Alexander v. City of Toledo, 168 Ohio St. 495, 156 N.E.2d 315.
An examination of Sections 709.02 to 709.11, inclusive, Revised Code, which sections provide the procedure by which adult resident freeholders of an area may cause it to be annexed to a municipality, and Section 3311.06, Revised Code, which provides
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the only procedure by which territory annexed to a city, comprising part but not all of a school district, may be transferred to the city school district, makes it clear that nothing in these sections invalidates the annexation petition under consideration here. The words, “for municipal purposes, according to the statutes of Ohio,” accurately describe the purpose of the annexation provided for by Section 709.02 et seq., Revised Code, and are not in conflict with the procedure established by Section 3311.06, Revised Code, for the transfer of territory from one school district to another after such territory has been annexed by a municipality.
The judgment of the Court of Appeals is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and BELL, JJ., concur.
HERBERT, J., not participating.