
    Roettker, Appellee, v. City of Cincinnati et al., Appellants.
    (Decided December 28, 1936.)
    
      
      Mr. Wm. P. Hohmann and Mr. Wm. H. Deddens, for appellee.
    
      Mr. John D. Ellis, city solicitor, and Mr. Edward F. Alexander, for appellants.
   Hamilton, J.

This is an appeal on questions of law and fact. The appellee, plaintiff, Clara E. Roettker, in an action filed in the Court of Common Pleas secured a permanent injunction against the collection by the city of Cincinnati, appellant, of certain taxes which she claimed were illegally assessed against her property.

In the amended petition, plaintiff, appellee, sets up her ownership of certain property, and that its location pHor to June 4,1930, was part of Section 7, Green township, Hamilton county, Ohio; that on June 4, 1930, the city of Cincinnati passed ordinance No. 345-1930 pretending to accept the application for annexation of the territory formerly known as Covedale, in which her property was located; that, thereafter, the Auditor of Hamilton county in accordance with the provisions of Section 3557-1, General Code, caused a division of the unencumbered balance on hand in the treasury of Hamilton county, to the credit of Green township on January 21, 1930, which was the date on which the application for annexation was filed, to be made between Green township and the city of Cincinnati ; that subsequent thereto the Auditor of Hamilton county made an allocation to the city of Cincinnati of the amount due it and the auditor reported his apportionment of the unencumbered balance and on March 18, 1931, council of the city of Cincinnati by legislation duly accepted the apportionment and thereby completed the annexation of the territory.

Plaintiff, appellee, further alleges in her amended petition that the county auditor has placed upon the tax duplicate of Hamilton county her property for th,e purpose of collection of taxes, and that the taxes have become a lien against the property of the plaintiff; that the assessment made by the county auditor was made under the tax rate of the city of Cincinnati, to wit, 22.10 mills for the entire year of 1930, and that the Treasurer of Hamilton county is attempting to collect the taxes so levied under the rate of the city of Cincinnati, for the entire year 1930. Plaintiff, appellee, alleges that there is included in the levy of 22.10 mills, a levy of 9.10 mills for the purpose of the city of Cincinnati, and that the city of Cincinnati is claiming that proportion of taxes for its purposes.

Plaintiff, appellee, alleges that the taxes so levied are illegally assessed against her property, and that it constitutes a taking of her property without due process of law, contrary to the Constitution of the United States.

Plaintiff prays for an order restraining the county treasurer from the collection of the taxes so levied against her property, and from paying over to the city of Cincinnati the taxes claimed to be due for city purposes, and that the county auditor be restrained from carrying on his tax duplicate the taxes so levied against plaintiff’s property.

The issues were joined by answer and a reply.

The question here for determination is whether the city of Cincinnati is entitled to the amount levied for its use for the part of the year 1930, following the passage of the annexation ordinance by the city of Cincinnati, by reason of the failure of the city to pass the ordinance approving the. auditor’s apportionment until March, 1931, and that the city of Cincinnati is not entitled to 9.10 mills rate collection, since during a part of 1930 she was not in the city of Cincinnati, by reason of the failure of the city to pass the ordinance approving the auditor’s apportionment until March, 1931; that the ordinance of June 4, 1930, was not effective to give the city the right to collect these taxes. The question, therefore, is whether the annexation became effective by reason of the passage of the ordinance of June 4, 1930, accepting the territory, or by reason of the resolution approving the apportionment made by the auditor. This question involves the construction and application of Sections 3556, and 3557-1, General Code. Section 3556, provides:

“When the resolution or ordinance, accepting such annexation, has been adopted, the territory shall be deemed a part of the municipality, and the inhabitants residing thereon shall have all the rights and privileges of the inhabitants within the original limits of the municipality.”

it is contended that the effective date of the annexation was postponed by Section 3557-1, General Code, until “the passage of such resolution or ordinance shall be necessary to the validity of the annexation. ’ ’

As a rule of construction, both sections must be given full force and effect, if possible. Section 3556, General Code, is clear that the territory becomes annexed upon the passage of the ordinance, in this case, the ordinance of June 4,1930. Section 3557-1, General Code, deals with the apportionment of indebtedness of the assumed territory and the division of unencumbered funds.

Reading these two sections, it is clear, we think, that the annexation is completed under Section 3556, General Code, by the passage of the resolution or ordinance in accordance with the provisions of this section, and that the annexation is voided by the city by its refusal, if there be such refusal of the city, to accept the auditor’s apportionment of indebtedness and division of the funds. The refusal to accept such apportionment of indebtedness and division of funds would invalidate the resolution or ordinance accepting the annexation application. The converse must be true that the passing of the resolution accepting the appor- . tionment of indebtedness and division of funds validates the annexation. It will be noted the language is “necessary to the validity of the annexation.” In this case the annexation is the ordinance provided for in Section 3556, General Code. It follows, therefore, that the annexation was valid and completed by the ordinance of June 4, 1930, subject to being avoided by the failure or refusal of council of the city of Cincinnati to accept the apportionment provided for by the auditor.

Having accepted the apportionment, the annexation is effective as of June 4, 1930, and all acts and powers with reference to the inhabitants of the city are referred to and conferred upon the city, and may not be voided at the instance of a resident of the annexed territory. The language of Section 3556, General Code, is specific and clear. It provides: “The territory shall be deemed a part of the municipality, and the inhabitants residing thereon shall have all the rights and privileges of the inhabitants within the original limits of the municipality.” Nothing further is suggested in the law to make annexation complete.

As before suggested, Section 3557-1, General Code, provides with reference to the apportionment and division of funds that the city may avoid its act by refusing to accept the apportionment and division, but nowhere is this right given to a resident of the annexed territory to void the annexation.

The case of State, ex rel. Ellis, v. Heuck, County Aud., 42 Ohio App., 367, 182 N. 33., 141, is cited as some support for the ground of the restraining order in this case. That case involved only the question of the apportionment by the county auditor, which was challenged after the ordinance of acceptance was passed by council. Council sought to bring in money collected by the township under a .former levy, and not considered by the auditor in making the apportionment of division of unencumbered funds. This court held the city was not entitled to maintain such action. The action was one in mandamus. The court in effect held that if the city were held to have the right to maintain such action, the effect would be to defeat the annexation of the territory. This is in line with our holding in this case, that'the annexation may be voided by the city by its refusal or failure to accept the apportionment. But, it having accepted the apportionment, it was bound by it, and the city could not thereafter change its act in passing the ordinance accepting the apportionment and thereby void the annexation.

Our conclusion is that the plaintiff is not entitled to the relief prayed for.

Judgment may be entered dismissing the petition.

Petition dismissed.

Tatgenhorst, P. J., and Ross, J., concur.  