
    APPROPRIATION OF LAND OUTSIDE OF MUNICIPAL LIMITS FOR SEWAGE AND GARBAGE DISPOSAL PLANTS AND FARMS.
    Common Pleas Court of Montgomery County.
    City of Dayton v. Vance et al.
    Decided February 1, 1926.
    
      Charter Cities Are Controlled by General Laws — But Charter Provisions May be Followed Where Not in Conflict — Appropriation Proceedings — Notice to Property Owners May be Served Through the City Manager — Failure to Agree as to the Vdlue of the Land Not Jurisdictional — Funds in Hand to Carry the Project to Completion Not Necessary — No Power in the Courts to Interfere With Official Discretion in the Absence of Fraud or Collusion.
    
    1. Full proceedure for appropriation of land cannot be had under a city charter, and of necessity such procedure is supplemented by general laws which are always applicable to the exercise of power by cities which have adopted charters.
    2'. In serving notice to the defendant owners in an appropriation proceeding, variance in the name and title of the responsible officer under the city charter does not present a conflict with statutory provisions, and the fact that notice of intention to appropriate was served through the “city manager,” instead of the “mayor” as required by Section 3680, G. C., is not fatal to the proceeding.
    3. Averments that a municipal corporation has been unable to agree with the defendants as to value of the land it is proposed to appropriate, are not jurisdictional; and averment and proof of such inability is not necessary.
    4. Nor is there any restriction upon a city proceeding with a condemnation, involving expenditure of a large amount of money, without having first made adequate provision for payment for the land it is seeking to appropriate and to fully complete the plan, enterprise or structure for which the land is being appropriated.
    
      John B. Harshman, City Attorney, and Walter V. Snyder, Assistant City Attorney, for plaintiff.
    
      Mattern Brumbaugh & Mattern, J. W. Kreitzer, H. E. Kreitzer, Nathaniel Fulton, I. L. Holderman, A. W. Schulman and John G. Romer, for defendants.
   McCray, J.

On October 3, 1925, an application to assess compensation for lands was filed in this court consisting of twenty-two pages specifically setting forth copies of Section 1 and Sections 142 to 146, both inclusive, of the city charter, and an allegation that “both by said charter and also by the statutory law of Ohio said city is authorized to appropriate real estate within, and when reasonably necessary, outside of the corporate limits of said city for sewage and garbage disposal plants and farms.”

It is recited that on March 4, 1925, there was a resolution by the Commission in which it declared its intention to appropriate in fee simple, for the purpose of a sewage and garbage disposal plant and farm, certain lands described, located outside of the corporate limits. Notice of the resolution is alleged to have been given to the owners ; and that, after the adoption of the resolution and service of notice, the city endeavored to agree with the owners of the real estate on the price to be paid for it; and did agree with Walter B. and Grace E. Miller, owners of Parcel “1,” which it purchased on August 5, 1925.

The allegations follow that the city was unable to agree with the owners of the other parcels; and that on August 5, 1925, by ordinance the Commission directed the appropriation to proceed. The prayer of the petition is that the court cause a jury to be impaneled to make inquiry into and assess the compensation to be paid by the city for the property appropriated. As a part of the prayer to the petition the court is asked to award possession of the several parcels- of land to the city “upon the payment to the owners or deposit of the amount so assessed”; and to divide the sum paid or deposited among the several claimants in respect to their interest.

When the application was filed an order was issued by the court that notice be given through the sheriff to the defendants informing them that on November 2, 1925, at 10 a. m. an order would be requested to impanel a jury to assess compensation. On November 5th an order was made reciting that certain of the defendants were on November 2d, represented by counsel and other counsel were absent; and it was thereupon ordered that the preliminary hearing be continued until November 9, 1925, at 9:30 a. m. On this date a hearing was held in open court and oral argument was made touching the questions involved; and the case was continued until November 17, 1925.

On November 9, 1925, the question was before the court as to the efforts to agree upon the price of the land. Upon suggestion of 'the court the representatives of the city and the owners of the respective parcels of land were given an opportunity to meet in court room No. 3 on Saturday, November 14, 1925, for the purpose of making an effort to agree. There has been no report made whether anything was done there.

On November 17, 1925, the case was again before the court and evidence was submitted upon the question as to whether or not the parties had made an effort to agree upon a price for the lands and failed. This hearing was again continued until the following day, when the case was submitted with the understanding that briefs would be filed.

The questions made on the preliminary hearing are, therefore, before the court upon oral argument and upon briefs. One is whether the city is proceeding under the provisions of the charter, or Ohio statutes.

Defendants say that the pleading recites the power of the city to appropriate the lands, but that it is indefinite whether the city relies upon the statute for procedure or upon the charter. The city has relied on the charter, defendants say, because the city manager caused notice of the preliminary resolution to be served on the owners as required by Section 144; whereas, Section 3680, G. C., requires that notice should have come from the mayor; and the city should, therefore, be required to elect whether it will proceed under the charter or under the General Code.

The first thing to be noted is that full procedure for appropriating lands cannot be had under the charter. It is only by reference to the statutes that procedure may be found.

The usual rules of pleading permit claims to be made under an ordinance and under a statute. In Blancke v. N. Y. Central R. R., 103 O. S., 178, a claim was made that defendant violated an ordinance as to speed and a statute as to warning. The trial court refused to admit the ordinance. The Court of Appeals affirmed the judgment and the case was reversed because of the exclusion of the ordinance. It is necessary only that the petition should state facts which bring the case within the statutes; reference need not be made to them; only operative facts are necessary; and it then becomes the duty of the court to add the law to the operative facts. Steel Co. v. Sheller, 108 O. S., 106. But city ordinances. must be pleaded. Toledo v. Libbie, 19 O. C. C., 704 (affi’d 51 O. S., 563). That both ordinances and laws may be applied to the same facts, is a familiar principle; and the operation of the one does not satisfy or exclude the other. Greenburg v. Cleveland, 98 O. S., 282 at 286; United States v. Lanza, 260 U. S., 377; Wightman v. State, 10 Ohio, 453; Koch v. State, 53 O. S., 433. Power exists in the 'Public Utilities Commission to regulate devices for safety within a municipality; yet the city may adopt ordinances also regulating the same subject matter. Kilpatrick v. P. C. C. & St. L., No. 51049, Montgomery County Common Pleas, Vol. 3, Court of Appeals Minutes, pp. 222, 223.

By Section 3 of Art. 18, the constitution gives authority to municipalities to exercise all powers of local self-government so long as they do not conflict with general laws. This provision seems to contemplate that general laws are applicable always to powers exercised by cities which have adopted special charters. So the city must proceed under general laws; and we see no reason why it may not proceed under both so long as they are not in conflict. Upon the service of notice to the owners, the variance in name and title of the responsible officer (Sec. 144 Charter; Sec. 3680 G. C.) is not a conflict within the meaning of the constitution. Flotron v. Barringer, 94 O. S., 185, at 187.

As applied to the general law, is the fact that the city manager (as in Sec. 144 of Charter) instead of the mayor caused “written notice” to be served fatal in this case? By the terms of Section 3680, “the mayor shall cause notice” to be given to the owner “or to his authorized agent” to be served “by a person designated for the purpose.” This would seem to be rather informal, leaving discretion in the mayor as to the “designated” person; and, further, that such service is regarded as merely an administrative act, and one which plainly does not require the personal attention of the mayor. Doubtless this is more informal because of the safeguards found in Sec. 3681 which defines the character of the “application” for the appropriation of the land; and Sec. 3682 thereafter carefully provides for the more important notice, this time “in the ordinary manner of serving legal process.” We construe the language, so informal in the one case, so carefully phrased in the other, to mean that strict adherence to the language of the statute may not be required in the first.

The true question as stated by the court in Lafayette Ins. Co. v. French, 18 How. (U. S.), 404, at 407, was whether the defendants had such notice as would make them bound to appear or take the consequences. The object is attained when such service is had as to make it reasonably certain that the defendants will be notified of the proceedings. R. R. Co. v. Roller, 100 Fed., 738, at 741. Here the notice was of the intention to appropriate so that the defendants might arrange to protect their interests. We must bear in mind that the legal process causing their appearance in court was yet to be served “in the ordinary manner of serving legal process.”

Bearing closely upon this point, our Supreme Court has recently said: “In serving process the provisions of the. statute should be substantially followed.” Klein v. Lust, 110 O. S., 197, at 204; and further that “All statutes relating to procedure are remedial in their nature and should be liberally construed and applied to effect their respective purposes.” Furnace Co. v. Rinehart, 108 O. S., 117. Certainly this language paves the way for the operation of Sec. 11364 which provides that “in every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the. substantial rights of the adverse party.”

Examination of Sections 3677-3697 providing for the appropriation of property by municipal corporations shows that this step is merely one “stage” of the “action” (action defined: Sec. 11237). This may be a “defect” in the “proceedings” but our duty seems to be to disregard it; because it does not affect the substantial rights of the defendants. The purpose found in Sections 3677-3697 by our Supreme Court (Sargent v. Cincinnati, 110 O. S., 444) is to ascertain the value of the property. If the mayor, acting under Section 3680, had caused the service, it would have been made by some one “designated” as a part of the routine of administrative duty. This fact plainly distinguishes Hiskey v. Forristal, 49 Ill., 255; Kyle v. Kyle, 55 Ind., 387; Lazarrne v. Oishei, 2 Misc. (N. Y.), 200. We think it also distinguishes this court’s ruling on the service of summons in case No. 54030, Krebs v. City (R., p. 93); as in that case the discretion was not vested in any one to choose some one else to do the act. There can be no element under our statute involving personal judgment or discretion; or acts which could not be delegated. The statute provides for a delegation of the authority.

Examination of 32 Cyc., 451, Collins v. R. R. Co., 7 O. N. P., 270, shows only the general authority upon the subject of notice and service of process; and these authorities are not decisive of the point.

It was held by the Supreme Court in Flotron v. Barringer, 94 O. S., 180, that the character of an office is dedermined more by powers and duties than by the name given to the incumbent. See Ide v. State, 95 O. S., 224 at 231, and State v. Davis, 96 O. S., 301, at 303. (See also Sections 36 and 47 of the Charter.)

In this inquiry, with all defendants represented by counsel, there is little doubt but that the service of the. preliminary written notice in this case by a person “designated” by the city manager, the effectual head of the city government (Sec. 36 Charter; Sections 4258-4262, inc., G. C. Mayor’s powers and duties) was equally as effective as .if it had been delivered by some one “designated” by the mayor.

We hold, therefore, that no defect in the proceedings is thus shown which will affect the substantial rights of the defendants by reason of the manner of the service of the preliminary notice. To the notice required by Section 3682, the return of which is before us, we find no objection.

In view of the testimony bearing upon the city’s efforts to agree upon a price, the question becomes important whether a municipal corporation must make an effort to agree with the owners. Examination of this testimony does not make it clear that there were extended efforts, in some cases, to agree. There was definite inability to come to terms in others. Are such efforts and a failure to agree, conditions precedent? Defendants say they are. The city says they are not necessary to the exercise of the power of eminent domain by it; conceding, that they are in the case of quasi-public corporations as. shown by the express provisions of Section 11046, G. C., “its inability to agree with the owner.”

We observe that Section 11038 provides for appropriation of private property by corporations; and that it must be made according to the provisions of Chapter 5 of Title III, Sections 11038 to 11091, the last of which excludes from its operation appropriation by municipal authorities. The exclusive “special power” of appropriating real estate is provided for in Ohio by Division III, Chapter I of “Title XII Municipal Corporations.” The procedure is set forth in Sections 3677 to 3697 both inclusive. Such proceedings are special and are “strictly regulated by statute.” P. C. C. & St. L. Ry. v. Greenville, 69 O. S., 487, at 496. Unless the provisions of the statute require the city to make an effort to agree — and a failure, it must be held to be an unnecessary allegation.. Careful examination of Sections 3677 to 3697, G. C., show no such provisions. None has been pointed out to us. This fact is to be considered in connection with the word “only” in Section 11039 providing for appropriation by quasi-public corporations. It is asserted, however, that Sections 145 and, 146 of the charter require efforts to agree — and a failure. The general law requires none; and there can be no conflict in the provisions of the charter under the constitution. This requirement was before the framers of the charter and certainly no conflict was intended. Neither do we think that it was intended that the city of Dayton should enjoy less freedom in the exercise of municipal powers than other cities of the state. Certainly additional restrictions were not meant to be imposed. This is shown by the language used in Section 142 of the charter:

* * * “Appropriation of property located outside the corporate limits of the city shall be made according to the requirements of, and as provided in, the general law.”

We are of the opinion that the framers intended to retain and add to, but not to take away, rights and powers (Sec. 1, Charter). All sections of the charter must be read and construed together; and the words “if,” “may” and “thereafter” found in Sections 145 and 146, are not of sufficient import to override the plain provisions of Section 142. It must be considered that this was especially adopted for appropriations outside the city limits, as these lands are. With the power of the city reaching out beyond its borders, it is reasonable that statutory pro-, cedure should govern.

While forms are not to be regarded as controlling, it is to be noted that Rockel’s Probate Practice (4 Ed.) inserts an allegation of inability to agree in a form of petition for appropriation by a railway corporation (Sec. 1688, p. 1482) ; and he omits it in a form of petition for a municipal corporation (Sec. 1752, p. 1525).

There are many authorities urged in support of the claim that inability to agree with the owner is a condition precedent to the right to file a petition to impanel a jury; and that this is a jurisdictional question. Almost all of these refer to appropriation by quasi-public corporations; which fact is significant in view of the provisions of Section 11039, G. C., authorizing such proceedings “only” when they are “unable to agree with the owner.” The absence of such a provision with respect to appropriation by municipal corporations renders the authorities unavailing when we consider that it is “strictly regulated by statute.”

The case of Rockport v. R. R. Co., 85 O. S., 73, was a proceeding by the railroad company to appropriate a right of easement. Powers v. Ry., 33 O. S., 429, was a proceeding to appropriate land for a railroad. Light Co. v. Turner, 17 O. C. C. (N. S.), 34, was a proceeding by the light company under Section 11039, G. C.; Reed v. Ry. Co., 126 Ill., 48, p. 51, was a condemnation of land for railway purposes, to be done “only” in the event that the corporation was unable to agree. Lauf v. Saginaw, 53 Mich., 442, was a condemnation of land for street purposes. The statute required the common council to treat with the land owner and a failure-to agree as a condition precedent. The same was true in R. R. Co. v. Weiden, 70 Mich., 390, as shown by the decision on page 392; and also in Union Depot Co. v. Jones, 83 Mich., 415, and Ry. Co. v. R. R. Co., 62 Mich., 564. These were cases for the exercise of the right of eminent domain by quasi-public corporations. The statutes in the four Michigan cases enter into the decisions as a matter of course. It was also made a condition precedent by statute (Sec. 3, Act of 1879) in the state of New York. Village of Middleton, 82 N. Y., 196. Railway v. Young, 96 Mo., 39, is affected by Section 6938, R. S., which makes a jurisdictional fact of the failure of the owner of the land to relinquish a right of way for a railroad. Patient study does not show that there can .be a proper application of the authorities cited to the exact question to be decided. All are distinguishable from the case at bar. There are three important lines of distinction: (1) the cases involve appropriation by quasi-public corporations; (2) the statutes upon which they are based make inability to agree a condition precedent; and (3) in Ohio, the word “only” in Section 11039 makes it a condition precedent in appropriations by quasi-public corporations, and significantly omits it where municipal corporations appropriate land.

We hold that the averments in the application that the city was unable to agree with defendants, are not jurisdictional facts necessary to the right to appropriate the land; and that they may. be disregarded.

It is also urged upon the court that the city is proceeding- to condemn- lands involving the expenditure of a large sum of money without having made adequate provisions for payment; that there is no presumption that funds are provided; and by proceeding to incur obligations for the expenditure of money, the city is proceeding contrary to jurisdictional requirements. It is further said that future legislation for the sale of bonds would be invalid. It is contended by the city that this is a special proceeding and no provision is made in the statutes providing for the trial' of such issues as are made in the separate brief on taxation. It is further claimed that the objections here made would, in effect, require the court to determine in advance of a jury trial what the land would cost; and to have all the money in the treasury both for buying the land and for building the sewage disposal plant.

It is asserted that the city commission is wisely and prudently exercising discretion in not issuing a large amount of bonds long in advance of its needs. , We decide that this question has no proper place in this proceeding. This is, as suggested by counsel for defendants, a statutory. right and one which has been said to be “strictly regulated by statute.” P. C. C. & St. L. Ry. v. Greenville, 69 O. S., 487, at 496. Finding no restrictions placed upon the right of eminent domain when exercised by a municipal corporation — the statutes being silent upon any such requisites as to funds then available — we conclude that the contentions of the city must prevail.

. It is the same as reading into the statutes the words, “provided, that the court shall find that the city then has funds available: (1) to pay for the land appropriated; and (2) to fully complete the plan, enterprise or structure for which the latid is appropriated.” The responsibility of managing the city’s finances, planning and executing its policies must be upon those officials where the constitution, statutes, charter and ordinances have definitely placed it. To hold otherwise in this proceeding would have the same effect as an injunction against proceeding to appropriate. Sargent v. Cincinnati, 110 O. S., 444; Erie R.R. Co. v. Youngstown, 5 O. C. C. (N. S.), 332, and Railway Co. v. Greenville, 69 O. S., 487, at 496-7. These authorities hold that the only issue to be tried is the value of the property; that “when the resolution has thus been acted upon, passed and recorded, the municipal power has been exercised and the appropriation made” (Railway Co. v. Greenville, p. 493); and in Toledo v. Bayer, 7 O. N. P., 324, at 326, it is said that- “the passage of the ordinance by the council places the municipal corporation in as advanced a state of procedure at least as a private corporation would be after court had determined in its favor the jurisdictional questions.” The care and precision used in the preparation of the last named decision of the probate court of Lucas county, leads us to quote it here. See, also, Grant v. Hyde Park, 67 O. S., 166 at 173.

In the case of Jones v. Village of Maumee, No. 767, Lucas County Court of Appeals, Jones asked for an injunction restraining appropriation of his land for street purposes, alleging that the land was unfit; and that it will entail expenditure of $50,000 which is in excess of the amount the village may so expend. The Common Pleas Court dismissed the petition, and the court, on appeal, says:

“1. In' such a case it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine and the courts have no power to interfere or substitute their own views for that of the representatives of the people.”
“2. A legislature may'itself determine the necessity of exercising the power of eminent domain, and unless prohibited by the constitution, it may delegate the power of determination to public officers, boards or private corporations vested with power of eminent domain; and their determination is conclusive in the absence of fraud, bad faith or clear abuse of discretion.” a
“8. The necessity of the appropriation, the location, and the extent of the property to be taken were for the village council; and with that action the courts are powerless to interfere in absence of fraud, bad faith or abuse of discretion.”

The Supreme Court overruled a motion to certify the case to that court. Vol. 23 O. L. R., 609, Case No. 19295.

Surely defendants cannot now complain if the city pays or deposits the condemnation money before securing title —as it must. Section 3691, G. C. By the provisions of Section 3697, G. C., should the city fail to take possession of the real estate within six fiionths after the assessment, its right shall cease and determine; and all court costs and reasonable attorney’s fees for the services of defendants’ attorneys, shall be paid by the city. We see no legal difficulty in the ability of the city to comply; but that responsibility does not, and cannot, rest with the court. The action of public officers and boards is presumed to be valid if made within their jurisdiction. State v. Schneider, 103 O. S., 492; State v. Gas Co., 37 O. S., 45. A court will not interfere with official discretion unless there is abuse of discretion, fraud or collusion. Brannon v. Board, 99 O. S., 369; State v. Board, 104 O. S., 360.

Upon the whole case submitted and the reasoning and authorities set forth we direct that an entry be placed upon record omitting the finding that the city is unable to agree with defendants upon the purchase price of the lands. The court retains jurisdiction until such entry is filed, fixing a date for impaneling a jury to assess the value of the lands.

The case is referred to the assignment clerk for assignment in the usual course having in mind the convenience of the court and counsel as to the date of trial.  