
    George Powers v. The County Commissioners of Wood County.
    Proceedings to annex contiguous territory to the corporate limits of a town, in pursuance of the 14th section of the act to provide for the organization of cities and incorporated villages (Swan’s Rev. Stat. 959), are not in contravention of the provisions of the constitution.
    This is a petition in error to the District Court of Wood county.
    The petitioner sets forth that he is the owner of a tract of land on which he resides, situate in Wood county, and more than a half mile outside of the present boundaries of the incorporated town of Perrysburg; that the town council of that town, on the 20th day of February, 1854, passed an ordinance to submit to the qualified voters of said town, at the spring election in said year, the question of annexing certain contiguous territory to said town; that within the limits of the contiguous territory so proposed to be annexed, is the farm and residence of the plaintiff; that, at the annual spring election in said year, a vote was taken for and against the annexation of said contiguous territory, at which election plaintiff appeared and tendered his vote against said annexation; but his vote, as well as the votes of others residing out of said corporation of Perrysburg, was refused, on the ground that none were allowed to vote who were not qualified voters of the existing corporation; that a majority of the voters of said corporation being in favor of said annexation, a petition was, on the 7th day of April, 1854, presented by said corporation to the county commissioners of Wood county, setting forth the above facts, and asking the annexation of said contiguous territory; that the corporation of Perrysburg is very heavily in debt, being indebted to the amount of abou,t sixty thousand dollars, while the indebtedness of the township does not exceed fifteen thousand dollars; that, by the annexation, his taxes will be greatly increased, and his property held liable for the payment of a debt for which it was not liable at the time the debt was contracted; that there is no valid law to authorize the annexation of said territory by the county commissioners, as they are about to do. The plaintiff, for relief, asks that the commissioners may be restrained by inj unction from annexing the territory, until the final hearing of this cause, and, on such final hearing, the injunction may be made perpetual.
    To this petition the defendants demurred. The demurrer was sustained by the district court, and the action dismissed.
    To reverse this judgment the cause is brought here upon petition in error.
    
      James Murray, for plaintiff in error.
    Section 14 of the “ act to provide for the organization of cities and incorporated villages” (Swan’s Bev. Stat. 959), provides for the annexation, by a city or incorporated village, of contiguous territory, on the vote in favor thereof of a majority of the qualified voters of such city or incorporated village, and does not provide for obtaining the consent of a majority of the inhabitants of the territory sought to be annexed. In this particular, it differs from the organization of a new corporation, from the annexation of the inhabitants of contiguous territory, on their motion, to a city or incorporated village, and from the annexation of two or more contiguous corporations, and, in this particular, we claim this section to be unconstitutional and void. The section under consideration provides for annexing certain territory to existing corporations, on the application of such corporation, without respect to the wishes of the inhabitants of the territory sought to be annexed. It therefore disposes of their residences and property, without permitting them to exercise any right of suffrage in relation thereto, but simply at the will of those seeking to dispose of such residence and property, and of 
      
      whom they form no part. Although no particular provision of the constitution is violated, yet it is an attempt to exercise a power not delegated by the people in the constitution, and therefore as clearly void as though it were the violation of an express provision. C. W. & Z. R. R. Co. v. Comm’rs of Clinton County, 1 Ohio St. Rep. 85.
    It is a well settled principle of law, that no body of persons can be incorporated without the assent of a majority of them; and any act of the legislature attempting to confer corporate powers on a body of persons, without providing for obtaining the assent of a majority of them, is void. In the case of Ellis v. Marshall, 2 Mass. Rep. 276, this point was distinctly presented. See also Baggs’s case, 1 Roll’s Rep. 224; Brownl. Rep. 100; Cumb’k 316.
    The constitution of Ohio grants to the general assembly power to provide for the organization of cities and villages by general laws (see sec. 6, art. 13); but it nowhere grants power to organize cities or villages by the act of the general assembly direct, or to authorize them to be organized, without the consent of a majority of those directly interested in the organization.
    The property annexed is subject to taxation, to pay prior indebtedness of the town. It is, therefore, private property taken for public purposes; and the act is void in not providing a means of compensation to those whose property is thus taken.
    
      M. JR. §• JR. Waite, for defendants in error,
    insisted, that the law providing for the annexation of territory to existing corporations, is not void because it does not provide for obtaining the consent of the people of the territory to he annexed; but, without discussing that question, maintained, that the action of the plaintiff in error was premature, in seeking to restrain the commissioners from acting on the petition to annex the territory.
   J. R. Swan, J.

The statute relating to the annexation of contiguous territory is as follows:

Seo. 14 When any municipal corporation shall desire to annex any contiguous territory thereto, not embraced within the limits of any city or incorporated village, it shall be lawful for the trustees or council of the corporation proposing such annexation, to submit the question to the qualified electors of the corporation, by an ordinance passed for that purpose, at least one month before some general election in April or October ; if a majority of the qualified voters of the corporation voting on the question, shall vote in favor of such annexation, the said corporation shall present to the county commissioners of the proper county, a petition, praying for such annexation, which petition shall describe the territory proposed to be annexed to such municipal corporation, and have attached thereto an accurate map or plat thereof; and like proceedings shall be had upon said petition, as are provided in the third, fourth, fifth, sixth and seventh sections of this act, so far as the same may be applicable ; and if, within two months after a transcript shall be delivered as above provided, no notice of a complaint against such annexation shall be given, according to the provisions of this act, then, at the end of said two months, and in case of any such complaint, then, at the end of said two months and after the dismission of said complaint, the said contiguous territory proposed to be annexed, shall be in law deemed and taken to be included in, and shall be a part of, said municipal corporation, and the inhabitants thereof, shall, in all respects, be citizens thereafter of the said municipal corporation.” Swan’s Rev. Stat. 959.

The third, fourth, fifth, sixth and seventh sections of the statute, above mentioned, in substance, require the county commissioners to hear the petition in public; to permit all parties interested to appear and contest the granting of the petition; to examine all affidavits which may be submitted in support of or against the petition; and if, after the hearing, it shall, in their judgment and discretion, seem right and proper that the petition should be granted, it is their duty to make and indorse upon the petition an order to that effect, and deliver such order, with the petition, to the clerk of the town. Within two months from the time said order is delivered to the clerk, any person interested may make complaint to the court of common pleas for the county, or to any judge thereof, in vacation, and it is made the duty of the court or judge to hear such complaint; and if the limits of the proposed annexation will make the corporate territory unreasonably large, to order the record of the commissioners to be annulled. The order of the commissioners has no effect until the two months have elapsed, if, within that time, a complaint is filed, the operation of the order is still further postponed until this complaint is dismissed. If no complaint is made, or, if made, is dismissed, then, after the expiration of the two months, and the dismissal of the complaint, the territory is annexed. If the complaint is sustained, it is the duty of the court, or judge, to annul the order of annexation made by the commissioners. Swan’s Rev. Stat. 956, 957, 958.

The plaintiff claims that his lands cannot be annexed to the town of Perrysburg without his assent, or, at least, without permitting him to vote on the question.

There is no constitutional provision upon this subject. The statute relating to a vote by the citizens of a municipal corporation, upon the question whether contiguous territory shall be annexed to the town, is simply for the purpose of determining whether an application shall be made to the county commissioners to annex the territory; and they, finally, after hearing the parties in interest, decide upon the public policy of making the annexation. No right of property is involved or determined by the vote contemplated by the statute.

The extent and limits of a municipal corporation depend upon a variety of questions, both of a public and local nature; and among them is involved, sometimes, the private interest of citizens residing near towns who enjoy the benefits without paying the expenses of public improvements ; and, on the other hand, the corporate limits of towns are sometimes extended simply to extend unjustly the area of assessments and taxation. The county commissioners are, perhaps, as proper public officers as any other to decide upon the public policy and conflicting interests involved in the determination of the extent and limits of municipal corporations. It is, however, enough to say, that the law has devolved it upon them.

The county commissioners, in the exercise of this authority, are determining a question of public policy, affecting, it is true, incidentally, private interests; but not determining, like courts, the specific private rights of individuals, any more than the annexation of contiguous territory to school districts, townships or counties, is a judicial act, in the sense in which the constitution vests in courts exclusive judicial powers.

The property, if annexed, will be subject to taxation to pay a prior indebtedness of the town of Perrysburg; and it is, therefore, claimed that private property will be thus taken for public purposes without compensation. That injustice may be, and has, sometimes, been done by the annexation of territory to a town, which has contracted an improvident debt, is, no doubt, true; and, sometimes, and perhaps more frequently the owners o± contiguous territory have had the benefit, by reflected value and convenience, of expenditures for which they have not contributed anything. The question is one beyond the reach of practical consideration, in the absence of any statute; and it would require a very artificial and unsound mode of reasoning to hold, that territory could not be annexed to a town which owed debts, until the owners of such territory were paid a compensation in money for a proportional part of such debts, on the ground that the property annexed was condemned for public use.

It is not indeed to be presumed that a municipal corporation has contracted a debt without being correspondingly benefited.

Judgment below affirmed.

Bkoskebhoee, Scott and Sutliee, JJ., concurred.  