
    Urner, City Aud., et al. v. Pickelheimer.
    (Decided March 13, 1933.)
    
      Mr. John B. Ellis, city solicitor, and Mr. Leonard S. Shore, for plaintiffs in error.
    
      Mr. Michael C. Lacinak, for defendant in error.
   Boss, J.

This is a proceeding in error from the court of common pleas of Hamilton county, wherein judgment was rendered for the plaintiff: George W. Piekelheimer, upon demurrer to his petition, the defendants not desiring to plead further.

The petition, in brief, recited that an application was presented to the Hamilton county commissioners, praying for the annexation to the city of Cincinnati of a certain area described by metes and bounds, known as Fairfax.

Upon a hearing, it was disclosed that such area included a comparatively new school building, and that if it were included in the area annexed the situation thereby developed would constitute a hardship upon the remaining portion of the school district, not annexed, in that such unannexed portion, would still be charged with the debt for the school building while being deprived of any use thereof.

The original application for annexation was, therefore, denied by the county commissioners, whereupon the agent named in the original application took it upon himself to amend such application for annexation by eliminating from the description by metes and bounds the school property, although in doing so he erroneously described such school property by failing to describe the same by courses and distances which closed the area sought to be annexed.

The county commissioners at first entered a resolution denying such amended application, but later reconsidered their action, and entered a resolution approving such amended application, describing the area with the school property eliminated.

The petition contains further recitals that the vast majority of the citizens and property holders in the area have signed a petition in protest against the annexation of the area with the school property eliminated, based upon the fact that if such annexation of this area were effected their children would not be permitted to attend the school now situated close to their homes, but, on the contrary, would be compelled to travel some mile and a half to the nearest Cincinnati school, over a public highway, heavily traveled, and with no sidewalks, thus endangering their lives.

The petition prays that an injunction may issue restraining the defendant, the auditor of the city of Cincinnati, from passing the transcript of the record and proceedings of the county commissioners to the council of the city of Cincinnati, or from certifying the transcript as provided by law. A demurrer to the petition was overruled, and there being no desire to plead further, a decree of injunction was issued.

The major and controlling question presented is whether or not the agent had authority to amend the original application by eliminating or attempting to eliminate the school property after the county commissioners had passed upon such original application unfavorably to the applicants.

The plaintiffs in error rely upon Sections 3521 and 3549, General Code, for such authority. Section 3521, General Code, provides: ‘ ‘ The hearing shall be public, and may be adjourned from time to time, and from place to place, according to the discretion of the commissioners. Any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and affidavits presented in support of or against the prayer of the petition shall be considered by the commissioners, and the petition may be amended by their leave. If any amendment is permitted, whereby territory not before embraced is added, the commissioners shall appoint another time for the hearing, of which notice shall be given, as specified in the last preceding section.”

Section 3549, General Code, provides: “The petition shall be presented to the board of commissioners at a regular session thereof, and when so-presented the same proceedings shall be had as far as applicable, and the same duties in respect thereto shall he performed hy the commissioners and other officers, as required in case of an application to be organized into a village under the provisions of this division. The final transcript of the commissioners, and the accompanying map or plat and petition, shall be deposited with the auditor or clerk of the municipality to which annexation is proposed to be made, who shall file them in his office.”

"While Section 3521 provides for amendment of the petition or application, it obviously does not, nor does any other section of the Code, directly or inferentially authorize the agent provided for in Section 3548, General Code, to change the area sought to be annexed either by extending or diminishing the bounds thereof.

Section 3548, General Code, provides, with reference to the petition for annexation, that it “shall contain the name of a person authorized to act as the agent of the petitioners in securing such annexation,” and it is further provided in this section that the petition for annexation shall contain “a full description of the territory, and be accompanied by an accurate map or plat thereof. ’ ’

The words “such annexation” should be noted.

There may be cases which would more clearly illustrate sound reason why the powers claimed for the agent should not be implied from the statutory provisions applicable, but we cannot imagine what they would be.

To imply authority in the agent to do what he sought to do in the instant case would be to permit him with such imaginary and assumed power to completely subvert the original intention and the manifest wishes of the original signers of the petition for annexation, and leave them helpless, merely because they had designated a person to act for them in a purely procedural manner, and certainly limited to the annexation described.

A court of equity in any event should not lend its powers thereto.

Applying the ordinary rules applicable to principal and agent, which are the only measures provided under our present law, the agent is limited to such powers as shall carry out the enterprise involved for the interest of the principal. In the absence of direct and explicit provision, no power vests in him to proceed to his principal’s undoing.

Only one authority at all in point has been suggested as being contrary to our view, and that is Shugars, Clerk, v. Williams, 50 Ohio St., 297, 34 N. E., 248. An examination of this decision shows that it is in no way helpful in deciding the question herein involved.

Other matters have been urged as reasons why the decision of the trial court was correct, but we find it unnecessary to go further than we have gone in what has already been said.

The judgment of the court of common pleas of Hamilton county is affirmed.

Judgment affirmed.

Hamilton, P. J., and Cushing, J., concur.  