
    INSUFFICIENT CERTIFICATE TO PETITION FOR. ANNEXATION.
    Circuit Court of Hamilton County.
    Norwood v. Board of Elections, and St. Bernard v. Board of Elections.
    Decided, October 28, 1910.
    
      Annexation — Certificate of Clerk as to Signatures on Petition — Jurisdiction of Council — Sections S56S, et seq., Amended.
    
    The statutory requirement that the signatures to a petition praying for annexation to an adjoining municipality represent twenty-five per cent, or more of the resident electors of the territory to be annexed, based upon the number of votes cast at the last municipal election held in that territory, is not satisfied by a certificate by the clerk of the board of deputy state supervisors and inspectors of election that the signatures on the petition represents twenty-five per cent, or more of the total votes cast at the last municipal election. Quaere — Whether it is within the power of the clerk to fully carry out the requirement of the statute is a matter of doubt.
    
      H. E. Engelhardt and Samuel B. Hammel, for the plaintiffs.
    
      E. M. Ballard and Frank F. Dinsmore, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   Section 3568, General Code, as amended May 10, 1910, is as follows:

“The submission shall be by ordinance adopted by council of each corporation at least thirty days prior to an annual election at which the vote shall be taken.
“If there shall be presented to the council of a municipality proposed to be annexed to an adjoining or contiguous municipality a petition asking for the submission of the question of annexation to a vote, signed by twenty-five per cent, or more of the resident voters of the territory to be annexed, and there shall accompany said petition a certificate duly verified by both * * * or- from the clerk -of the board of deputy state supervisors of elections of the county in which said municipality is located, to the effect that the petition contained twenty-five per cent, or more of the resident electors of the territory to be annexed, based upon the number of votes cast at the last municipal election in said territory, the councils of both said municipalities shall order the question of annexation to be submitted to a vote at the next general election.” * * *

Under the law before the question of annexation can be submitted to a vote of the people of the municipalities each council of the municipalities must find and determine that a petition has been presented to it signed by twenty-five per cent, of the resident electors of the territory to be annexed, and that it is accompanied by a certificate under oath, by the clerk of the board of deputy state supervisors of elections of the county in which said municipality is located to the effect that the petition contained'twenty-five per cent, or more of the resident electors based upon the number of votes cast at the last municipal election in said territory.

In these cases the clerk of the board of state supervisors of elections for Hamilton county, Mr. George A. Gohen, made a certificate under oath to the effect that the signatures on the petitions praying for annexation represents twenty-five per cent, of the total vote cast at the last municipal election.

It must be noted that this, certificate does not contain any statement to the effect that the signers of the petition were in fact resident electors of the municipality. It amounts simply to this, that the number of names on the petition is twenty-five per cent, of the total votes cast at the last municipal election. It must be evident that this does not meet the requirement of the statute. Whether it was in the power of the clerk to fully carry out the requirements of the statutes is a matter of doubt.

But aside from this we are of opinion that each council not . only-, had the right to determine, but it was its .duty to determine, whether, the petition presented to it was signed by twenty-five per cent, of the resident electors of the territory to be annexed, ; and that', its finding upon this question must stand and is final until set aside by some'competent tribunal. And we are further ¡of -the opinion, following the case of Dutten v. Village of Hanover, 42 O. S., 215, that up to the time that council took action on the petition, any signer had the right to withdraw his name from the petition, and if after such'withdrawal there was not twenty-five per cent, remaining on.the petition, it was the duty of council to reject the same and take no further action.

If we are correct in this view of the law, there was not a petition in either case signed by the necessary twenty-five per cent, of the resident electors, and no question should be submitted to the vote of the people for or against annexation.

The injunction should issue as prayed for. 
      
       Affirming City of Norwood v. Deputy State Supervisors of Elections, 8 O. L, R., 880.
     