City of Parma v. City of Cleveland

Per Curiam. The present controversy centers around the uncertainty which exists with reference to the overall area included within the regional sewer district. Resolution of the issue depends upon interpretation of the district’s charter itself. For the reasons which follow, we reverse the judgment of the court of appeals. [111] R.C. 6119.02(E) requires that a petition seeking to create a regional sewer district contain “* * * an accurate description * * * of the territory to be organized as a district * * V’1 The suburbs contend, and the trial court so concluded, that the description contained in Section 6(a) of the charter is sufficient to satisfy this statutory requirement. It states as follows: “The District will initially include all political subdivisions in Cuyahoga County, Ohio, presently served by Cleveland’s waste water treatment facilities and those presently planned to be served, i.e. the municipalities to be served by the Cuyahoga Valley Interceptor and the branch of the Heights Express Interceptor to serve Richmond Heights and Highland Heights. A more detailed description of such area is attached hereto and made a part hereof and marked Exhibit E ‘A(l)’.” The city submits that Exhibit “A(l)” contains the only statutorily adequate description of the territory to be included within the district. We disagree. The trial court interpreted the district’s charter as contemplating a county-wide solution to the area’s sewage problems. Specifically, the court concluded that Section 6 of the district’s charter fully and clearly expressed the intention that the district have county-wide authority and, as such, satisfied the descriptive requirement of R.C. 6119.02(E). Since the trial judge in the instant case was the same jurist who presided over the creation of the sewer district in 1972, his interpretation is entitled to a high degree of deference. It is not within the province of a reviewing court to second-guess what, in essence, appears to be no more than a clarification of the trial court’s own prior judgment. Under these circumstances, the trial court was in a far better position to evaluate what the parties intended to agree upon than was any appellate court.2 In its cross-appeal, the city contends that the trial court lacked subject-matter jurisdiction to determine the present action for declaratory and injunctive relief. It is the city’s position that, inasmuch as the instant suit purports to challenge an appointee’s right to hold office, the only proper vehicle by which to resolve the question is a quo warranto action instituted in the [112] Supreme Court or court of appeals. We reject this argument, finding that the present action only incidentally relates to an appointee who had yet to be determined. It is well-settled that quo warranto is employed to test the actual right to an office. State, ex rel. Berry, v. Tackett (1979), 60 Ohio St. 2d 12 [14 O.O.3d 162]; State, ex rel. Smith, v. Ocasek (1976), 46 Ohio St. 2d 200, 202 [75 O.O.2d 237]. However before a party is entitled to maintain an action in quo warranto, he must not only show his own right to the office but also establish that another is actually holding office. See State, ex rel. Mikus, v. Chapla (1965), 1 Ohio St. 2d 174 [30 O.O. 2d 526]; State, ex rel. Heer, v. Butterfield (1915), 92 Ohio St. 428, paragraph one of the syllabus. Quo warranto does not lie where no one has actually assumed office. See Klick v. Snavely (1928), 119 Ohio St. 308, in which a quo warranto action was dismissed as premature, where the respondent was not in possession of the office involved. Appointment to the seat at issue had been effectively enjoined before any vacancy occurred. Thus the instant action cannot be characterized as one which seeks to oust a specific individual from office. It is, rather, an action to determine which of two appointing authorities has the lawful right to fill a seat and to enjoin interference with that right. The fact that these proceedings commenced before any appointment was made effectively precludes the application of quo warranto. For the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded for proceedings consistent with this opinion. Judgment reversed and cause remanded. Celebrezze, C.J., Sweeney, Holmes, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown and Locher, JJ., dissent. Footnotes [1] R.C. 6119.02(E) requires that a petition seeking to create a regional sewer district contain “[a] general description of the territory to be included in the district which need not be given by metes and bounds or by legal subdivisions, but it is sufficient if an accurate description is given of the territory to be organized as a district * * [2] The conclusion made by the court of appeals that Exhibit “A(l)” contained the only statutorily adequate description of the territory to be included within the district does not coincide with the trial judge’s recollection as to why that exhibit was drafted in the first place. In its opinion, the trial court explained the original purpose of the exhibit as follows: “The areas so delineated and specified were the areas that were then being served by Cleveland, and it was the sewer users in said areas whose accounts were to be almost immediately transferred from the City of Cleveland to the [Cleveland Regional Sewer District], It was felt that specific mention should be made of those particular areas so as to eliminate any question as to the responsibilities of the users therein being transferred from Cleveland to the * * * [sewer district].* * *”