
    In re Annexation in Mad River Township, Montgomery County.
    [Cite as In re Annexation in Mad River Twp. (1970), 25 Ohio Mise. 175.]
    (No. 134985
    Decided July 27, 1970.)
    Court of Common Pleas of Montgomery County.
    
      Mr. Lee C. Falke, prosecuting attorney, and Mr. Robert L. Hammond, for county commissioners.
    
      Mr. James W. Drake, city attorney, Mr. Edward M. Taylor, Jr., and Mr. W. Erwin Kilpatrich, for city.
    
      Messrs. Coolidge, Wall, Wood & Matusoff, for annexation petitioners.
   Brenton, J.

This is an appeal from a decision of the board of county commissioners in and for Montgomery County, Ohio, pursuant to proceedings and hearing on the proposed annexation of certain territory in Mad River Township, Montgomery County, Ohio.

The proposed annexation was apparently initiated by a majority of the adult freeholders residing in the territory seeking annexation, and adjacent to the city of Dayton, to which city they sought annexation.

It appears from a transcript of the proceedings had that the commissioners reduced the territory to be annexed from 163 acres to 22.6 acres.

The commissioners and the agent for the parties seeking annexation were served with process in this appeal. The commissioners and the agent have filed their respective motions to dismiss the appeal and the matter came on for hearing upon said motions.

The issue presented is the capacity or right of the city of Dayton to maintain this appeal.

Although R. C. 709.031 requires notice to be given to the municipal corporation to be annexed to, it is not a party to such proceedings in the common legal meaning of the term. Obviously it is interested in the outcome of such a hearing and it has a right to be heard as does any other person interested or person appearing in person by virtue of R. C. 709.032.

At common law there was no right of appeal in any action. Appeal stems from a constitutional or statutory right. In Ohio in the judicial process among the courts, one must be some type of party to the action in order to have standing to appeal to a higher court. Reid v. Quigley, 16 Ohio 445.

Furthermore such appellant must have a substantial interest and be aggrieved by the order of decision from which the appeal is sought. Ohio Contract Carriers Assoc. Inc., v. Public Utilities Commission, 140 Ohio St. 160.

In this cause we must look to the code for authority on an appeal from a decision of a board of county commissioners. It appears that the applicable section of the Revised Code is R. C. 307.56. Appeals thereby authorized must conform to and abide by the provisions of Chapter 2506., R. C. It is therein provided that the only requirement for standing to appeal is that the appellant must be a “Person aggrieved by the decision of the county commissioners.” In law aggrieved means deprived of legal rights or claims. This, then, presents the question of what right or claim does the city of Dayton have to the territory sought to be annexed.

It would appear to this court that although the city of Dayton may have desired to have annexed the total acreage, the commissioners’ decision to reduce the acreage does not injure nor prejudice the city in any future annexation proceedings it may desire to initiate. Dabkowski v. Baumann, 175 Ohio St. 89. The commissioners have only refused to permit the freeholders of the area in question to present the entire area to the city of Dayton for approval of annexation or rejection as provided "by R. C. 709.01 to 709.11.

A municipal corporation is given the same rights to seek annexation as the owners of adjacent land under R. C. 709.13 to 709.21, except they must first present the plan to the electors of the unincorporated area. In either case, the commissioners apply the same standards in making their decision, while the people of the unincorporated area and the municipal corporation, as the case may be, have absolute veto power as to whether to accept or reject such annexation.

It would appear that only when the municipal corporation initiate or has a plan pursuant to Chapter 709., R. C., could the action of the commissioners possibly aggrieve it, since when the owners initiate, the city has veto power and also the right to present its own plan. The city, in a petition by owners adjacent, has ultimate power to approve or disapprove any annexation plan.

In this cause the city of Dayton may not have been offered what it desired but it is not forced to take or give up anything. In fact, in action by the city for over 120 days acts as disapproval under R. C. 709.01.

Furthermore, the right of the city to present its own annexation plan, even if it is, in fact, the same one presented by the landowners and rejected by the commissioners to the voters in the unincorporated area and thereafter present for approval or disapproval by the commissioners is not impaired, together with its right of appeal under R. C. 307.56. Although the Legislature has in its discretion imposed certain restrictions and consequences affecting the municipal corporation in annexation proceedings. it nevertheless is given the opportunity to take the proper proceedings to annex whatever area it wishes and, therefore, cannot complain of being “a person aggrieved.”

In this cause the city of Dayton is accorded no special role in arguing before the commissioners under R. C. 709.-032 and none of the city of Dayton’s rights or claims were adjudicated by the decision of the commissioners. Furthermore, none of its property was taken and no rights or privileges were taken from it or bestowed on it. Moreover, the city has ultimate approval or disapproval of the proposed annexation.

Mere interest, including possible monetary or future benefits in the outcome of an annexation adjudication or ruling cannot make one aggrieved and bestow standing in the eyes of the law. In re Estate of Davis, 107 Ohio App. 52; Portsmouth v. Public Utilities Commission, 154 Ohio St. 174. If the city of Dayton has the notion that the commissioners have abused their discretion and thereby injured the parties in the area to be annexed or the unincorporated area as a whole, it is not for such city to appeal the decision but rather those whose rights have actually been abused.

The court finds the city of Dayton was not a party to the original proceedings from which this appeal is sought and further that the city is not a person aggrieved by the decision in question.

It is, therefore, the holding and judgment of this court that the city of Dayton does not have standing in this matter as an appellant.

The court having taken the position hereinabove set forth, it becomes unnecessary to consider the specific issues presented by the motions of the commissioners and the agent of the petitioners for annexation.

It is, therefore, the order and judgment of this court that the appeal herein by the city of Dayton, Ohio, be and the same is hereby dismissed at the costs of said city.

Judgment accordingly.  