Malloy v. City of Westlake

Sweeney, J. The issue in the instant cause is whether failure to. serve the Attorney General with a copy of the proceeding in a declaratory judgment action challeng-. ing the constitutionality of an ordinance precludes the. Court of Common Pleas from rendering a judgment. Appellants contend that. Civ. R. 4, which does not require special service upon the Attorney General, supersedes the special service requirement of R. C. 272Í.Í2. We disagree. The law is clear in Ohio that, special statutory provisions, if jurisdictional, are substantive laws of the state and cannot be abridged, enlarged, .or modified by the: Ohio [105] Rules of Civil Procedure. Section 5(B) of Article IV of the Ohio Constitution; Akron v. Gay (1976), 47 Ohio St. 2d 164. However, if these statutory provisions áre procedural, the Ohio Rules - of Civil Procedure will take precedence unless the rulés would by their nature be clearly inapplicable. Civ. R. 1(C). Although this court has never addressed itself to the issue of whether the requirement of serving, the Attorney Oeneral under R. C. 2721.12 is a jurisdictional matter, it is clear from the origins and nature of the declaratory judgment action in Ohio, the mandatory language used in R. C. 2721.12, as well as decisions of other jurisdictions construing similar language requiring service upon- the Attorney Oeneral, that the requirement is jurisdictional. R. C. 2721.02 of the Declaratory Judgments Act provides : “Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * Although this provision does not extend the jurisdiction of courts over new subject matter (State, ex rel. Foreman, v. Bellefontaine Municipal Court [1967], 12 Ohio St. 2d 26, 28; paragraph three of the syllabus in Sessions v. Shelton [1955], 163 Ohio St. 409; see Borchard, Declaratory Judgments, 233 [2d Ed. 1941]), it does extend the power of the court to grant declaratory relief, provided such relief is already within its jurisdiction to grant (Bellefontaine Municipal Court, supra, at page 28; see Radaszewski v. Keating [1943], 141 Ohio St. 489, 496). Thus, in this special sense, courts in Ohio obtained jurisdiction under R. C. Chapter 2721 to grant declaratory judgments. Ohio Farmers Ins. Co. v. Heisel (1944), 143 Ohio St. 519, 521. In granting this . spéciál power, the General Assembly provided in R. C. 2721.12, as follows: “When declaratory relief is sought, all -persons shall be made-parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the pro [106] ceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general shall also he served-with a copy of the proceeding and shall he heard .” (Emphasis added.) By employing the verb “shall” throughout R. C. 2721.-12, the General Assembly manifested a clear intent that: the statute’s provisions, including service upon the Attorney General, are mandatory. Cleveland Ry. Co. v. Brescia (1919), 100 Ohio St. 267; Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St. 2d 102. Because the declaratory judgment is specifically based on statute, it follows that these-mandatory provisions are jurisdictional in nature, in that failure to meet these requirements precludes a court from properly rendering declaratory relief. Thus, in the case where a necessary party has not been joined, this court has held that there was no entitlement to declaratory relief. Zanesville v. Zanesville Canal & Mfg. Co. (1953), 159 Ohio St. 203; paragraph one of the syllabus in Cincinnati v. Whitman (1975), 44 Ohio St. 2d 58; Gannon v. Perk (1976), 46 Ohio St. 2d 301. Furthermore, it is important to note that the General Assembly, in drafting R. C. 2721.12, included in the same paragraph both the provision requiring joinder of all necessary parties and the provision requiring service upon the Attorney General. Both of these parts of the statute are phrased in mandatory language, and, it would be inconsistent to hold that while the provision requiring join-der is jurisdictional, the provision requiring service on the Attorney General is merely procedural. Finally, the court notes that the General Assembly specifically provided in R. C. 2721.14 that: “Sections 2721.01 to 2721.15, inclusive, of the Revised Code shall be so interpreted and construed as to effectuate their general purpose to make the law of this state uniform with the law of those states which enact similar sections * * [107] In states which have adopted statutes similar to E. C. 2721.12, it has been held that the requirement of service upon the Attorney General in a declaratory judgment action is mandatory and jurisdictional. See, e. g., Tobin v. Pursel (Wyo. 1975), 539 P. 2d 361; Center v. Appleton (1975), 70 Wis. 2d 666, 235 N. W. 2d 504; Sendak v. Debro (Ind. 1976), 343 N. E. 2d 779; see, generally, 22 American Jurisprudence 2d 948, Declaratory Judgments, Section 85. We therefore conclude that where, in a declaratory judgment action challenging the constitutionality of an ordinance, the Attorney General is not served a copy of the proceeding as required under E. C. 2721.12, declaratory relief is precluded. The judgment of the Court of Appeals is affirmed. Judgment affirmed. O’Neill, C. J., Celebrezze and W. Brown, JJ., concur. Herbert, P. Brown and McCormac, JJ., dissent. McCormac, J., of the Tenth Appellate District, sitting for Locher, J.