
    INCORPORATION OF VILLAGES.
    [Common Pleas Court of Butler County.]
    John Schorr and C. G. Motzer v. John C. Braun, County Recorder of Butler County, Ohio.
    
    Decided, November 28, 1906.
    
      Villages — Incorporation of — Character of Map lohich Must he Filed with the Application — Jurisdiction of Township Trustees — And of County Commissioners — Sections 1536-8, 1536-15 and 1553.
    1. The map which accompanies a petition for the incorporation of a village, whether filed with the county commissioners or township trustees, complies with the requirements of the statute if it accurately exhibits the territory affected and the lines bounding and dividing the properties therein, notwithstanding it does not show that the entire territory has been platted into lots.
    '2. If the county commissioners have power to act upon such a petition, the township trustees are without power; and when a portion of the territory included within the proposed corporation has theretofore been platted, its ineorporatipn must be effected by the county commissioners under the provisions of Section 1553, and action by township trustees in that behalf is without authority and void.
    
      
       Affirmed by the circuit court without report, December 15, 1906.
    
   Kyle, J.

A petition was filed with the trustees of Fairfield township, Butler county, signed by 104 persons, asking that certain territory become an incorporated village under the name of the Village of Lindenwald. It is conceded by counsel for plaintiffs that the petitioners were electors within the territory described and that a majority of them are freeholders.

The territory described in the petition comprises a large number of subdivisions that had been platted into lots, and the plats acknowledged and recorded in the recorder’s office of Butler county, long prior to the filing of such petition with the trustees. In addition to such subdivisions there was included within the territory described in the petition, and adjacent thereto, a large number of tracts of land, ranging in size from a fraction of an acre to about twenty acres. The entire territory described in the petition was approximately about 1,000 acres. The acreage in the tracts of land not platted amounted to approximately ninety acres.

The petition contained all the requirements of Section 1536-8 (1555) and a request of the petitioners that an election be held as provided in 1536-15 (1561a). Such petition was accompanied by a map of the territory which accurately and correctly set forth all the subdivisions theretofore platted and recorded, and the several acreage tracts included in said territory.

There is no contention but that the steps taken by the trustees under Section 1536-16 (15615) and Section 1536-17 (1561c) were in accordance with the provisions of such sections, and that an election was duly had, at which election a majority of the ballots cast were in favor of the incorporation, and that the acts and records of the trustees were duly certified and transmitted to the county recorder of Butler county for record within the time prescribed under Section 1535-17.

The plaintiffs, two electors within such territory, filed their petition in this action to enjoin the recorder from recording such act, or certifying the same to the secretary of state, and if the same had been done, praying for mandatory injunction and order directing such recorder to cancel said record and proceedings. Two principal grounds are relied on by the plaintiffs:

First. Because the trustees were without jurisdiction and power to act.

Second. Because the petition was not accompanied by an accurate map, and that said map was inaccurate, indefinite and erroneous, and failed to set out that the acreage tracts were divided into inlots.

The granting an injunction is the issuance of an extraordinary writ, and there is no evidence or facts before the court to warrant a finding, if the proceedings were otherwise regular and proper, that the granting of the prayer of the petition for the establishment of a village within the territory named would be either unjust or inequitable.

The claim is made by the plaintiffs that the map was inaccurate because the entire tract included in the territory described in the petition of the petitioners for the incorporation was not laid out in inlots. Such a claim should rather be that the map was insufficient. The requirement of the statute is that the petition should be accompanied by “an accurate map of the territory.” This is all that is required, whether a petition be presented to the commissioners or the trustees. There is no dispute but that the map accompanying the petition in this case was accurate and set forth all the established lines within the territory. The plaintiffs in their argument assume that the map required to accompany a petition for incorporation must show that the entire tract within the territory was platted off into Jots. Under the language of the statute which only requires an accurate map of the territory, the one filed herein being admitted to be accurate, and set forth all the lines and divisions of the properties therein, is sufficient.

The only remaining question is: Had the trustees the jurisdiction and power to act?

Under Section 1536-6 (1553) : First, the inhabitants of any territory laid off into a village or hamlet lots and platted, all of which territory has been acknowledged and recorded as is provided with respect to deeds; second, the inhabitants of any territory which has been laid off into city lots and surveyed and platted by the engineer or surveyor, who certifies thereon under oath to its correctness, and which is recorded as is provided with respect to deeds; third, and the inhabitants of any island or adjacent islands, or a part thereof, or all such island or islands, or a part thereof and adjacent territory may obtain the organization of a village or hamlet in the manner provided in this title. Such application shall be signed by not less than thirty electors residing within the proposed corporation limits, and addressed to the county commissioners.

Under Section 1536-8 (1555) the petition shall contain the following matters:

1st. An accurate description of the territory embraced within the proposed incorporation, and it may contain adjacent territory not laid off into lots.

2d. The supposed number of inhabitants residing in the proposed corporation.

3d. Whether the corporation desired is a village or hamlet,

4th. The name proposed.

5th. The name of some person to act as agent for the petitioners, and more than one agent may be named therein.

On the filing of such petition the commissioners give duo notice, and if the commissioners find that the petition contains all the matters required, and that its statements are true, they shall cause an order to be entered on their journal to the effect that the corporation be organized, which proceeding shall be duly certified by the recorder for record as provided by law.

The petition in this case was filed under Section 1536-15 (1561a) with the township trustees and proceeded with under -15, -16, -17 (a, 5, c) of such section. Under Section 1536-15 (1561a) when the inhabitants of any territory or any portion thereof desire that such territory shall be incorporated into a village or hamlet they shall make application to the trustees of the township in which the territory is located, by a petition signed by at least thirty- electors thereof, a majority of whom should be freeholders, and the petition shall contain the request of the petitioners that an election be held to obtain the sense of the electors upon such incorporation.

And the question here directly presented is: Is there any line of distinction to be drawn between the cases which may be brought before the county commissioners and the township trustees for incorporation of villages? A petition may be filed by not less than thix'ty electors, residing within the proposed corporate lixnits with the county commissioners. A petition filed with the trustees shall contain all the requirements of the petition before the commissioners (Section 1536-8), and further requires that a majority of petitioners shall be freeholders, and also a request of the petitioners that an election be held to obtain the sense of the electors upoxx such incorporatioxx. In a proceeding before the county commissioners, the county commissioners become a tribunal or court to hear the petition and determine whether or not the prayer of the petition shall be granted. In a proceeding before the trustees, the trustees themselves do not determine, but hold an election, and the electors within the prescribed territox’y determine -whether or not there shall be an incorporation. When the findings and papers have been certified by the commissioners to the recorder, he caxx xxot record the same for a period of sixty days. In a case before the trustees, when their findings and the papers have been filed with the recorder, he shall forthwith make a record and the corporation established a village, unless a suit be instituted within ten days from the filing of the papers with the recorder.

W. C. Shepherd, for plaintiffs.

E. H. Jones and Homer Gard, or defendants.

Under the law as it now stands the commissioners are without authority or power to establish a village, unless prior to the filing of such petition all, or a part of, the territory has been platted and acknowledged and recorded or laid off into lots by an engineer, or the proceeding affects an island. The claim is made by the defendants that the trustees may establish a village from any territory, whether laid out into lots or not.

The only decision upon the question involved in this branch of the ease is the case of Halb v. Siegrist, 13 O. D., 46, and in that case thle ;point involved herein is directly determined. Judge Neff in that case held:

“Section 1561a, Revised Statutes, et seq. (O. L., 333), entitled, ‘To permit the incorporation of territory within a township,’ has reference to the organization and incorporation of a new class of territory within a township, not embraced within Section 1553, Revised Statutes, et seq., providing for the creation of villages and hamlets.” . .

Without reviewing the authorities referred to, I will follow that decision, as it appears to be the only view that gives full effect to all the seotions.

In this case it is admitted that the greater portion of the territory included in the incorporation had long before been platted. This case is thus brought within one of those provided for before the county commissioners, and that, too, whether the territory included only one or a number of plats. If the county commissioners had power to act, the trustees were without power, and,- holding these views, I find that the proceedings of the trustees and all their acts under the petition for incorporation are without authority and invalid, and that the record of the proceedings by the recorder should be canceled and set aside, and held for naught, and that an order may be issued accordingly. The costs will be adjudged against the agents named.  