
    Dutten v. Village of Hanover.
    .1. In mandamus in the court of common pleas to compel the council of an incorporated village to order an election on the question of a surrender of its municipal powers, under the provisions of the Kevised Statutes, sections 163S to 1647, the issue was whether the requisite number of qualified petitioners had petitioned the council therefor. Held: That this was an issue not of right triable by a jury, and either party might appeal from the judgment of the common pleas thereon.
    2. Upon the presentation of a petition to the council for such an election, it is the duty of the council, before taking action thereon, to satisfy itself that it contains the requisite number of qualified petitioners, and for that purpose may refer the same to a committee to make the necessary examination.
    3. While such petition is under consideration and before action thereon by the council, signers thereof may withdraw their names from such petition, and if thereby the number of names is reduced below the requisite number, it is the duty of the council to refuse to order such election.
    MotioN for leave to file petition in, error to the District Coutt of Columbiana county.
    This was a petition in the common pleas against the village council of Hanover, to compel that body to order an election as required by sections 1633 to 1647 of the Revised Statutes on the question of the surrender of its municipal powers. It is alleged that on the 2nd of October 18S2, fifty-five electors of said village, which was more than a majority, petitioned the council to order such election, that this petition was referred to a committee, who reported the same back at the next regular meeting, with several names stricken off by the petitioners, at the solicitation of the committee, leaving less than fifty petitioners, and less than a majority of the electors, and thereupon the council refused to 'order such election. The prayer is for a peremptory mandamus to compel the council to order such an election.
    Issue was joined on the material allegations of the petition, and a trial had upon evidence. The common pleas adjudged in favor of said relator and ordered such election to be held.
    
      The defendant appealed to the district court.
    A motion to dismiss the appeal was overruled, and exception taken.
    On a trial the district court found that the number of electors required by the statute, had signed said petition before it was presented and referred to' the committee, but that while the matter was in the hands of the committee, a number of signers, sufficient to reduce the petitioners to less than the required number, had, with the consent of the committee, withdrawn their names, so that at the next regular meeting of the council* when it refused to order the election, there were a less number of petitioners than required by statute.
    There is nothing in the record to impeach the good faith of the council, or its committee to whom the petition was referred.
    
      Clarke <& Me Vieker, for the motion.
    
      J.W. <& H. Morrison, contra.
   Johnson, C. J.

The Revised Statutes sections 1633 to 1647, provide the mode by which cities, villages and hamlets may surrender their municipal powers. By section 1644, the number signing a petition for an election to be ordered, is prescribed in case of an incorporated village. By section 1635, it is made the duty of the council, when a petition is presented for such an election, to order such election, and fix the time for holding the same.

Two questions are made on this motion for leave to file a petition in error: 1st, was the case one that could be appealed ; and 2nd, did the district court err in upholding the action of the village council in refusing to order an election ?

1st. Was this case one for an appeal ?

The issue made by the pleadings was of mixed law and fact. While it is the imperative duty of council (section 1635) to order an election, yet as an essential requisite to this duty, there must be a petition therefor, signed by a sufficient number of electors of the village.

In this case these petitioners must be electors, and this fact must be determined by the council. Before the council can be required to order an election, that fact, must be made to appear. It is a condition precedent to making such order. On mandamus to compel the council to order an election, the court must be satisfied that it was the duty of the council to make the order. The issue was, therefore, as to this fact, was that a fact triable by a jury, as of right? The court might order a jury to try it under proper instruction ; but was it bound to do so? For the purposes of this case, we assume, without deciding, that mandamus is the proper- proceeding against the council for refusing the prayer of petitioners.

This proceeding can only be resorted to, where there is not a plain and adequate remedy otherwise provided. Under our statute, the return to the alternative writ may be controverted. In this case it was controverted, and the question was, whether there was the required number of qualified petitioners. To determine this, the court must ascertain the number of electors in the village, the number of genuine signatures that were electors and the right of signers to withdraw their names.

To determine these questions in mandamus, neither party could demand a jury. Castle v. Lawlor, 47 Conn. 342; Chumasero v. Potts, 2 Montana, 242; High on Extra. Rem. § 30 c.

2d. Did the district court err in holding that persons who signed the petition, could withdraw their names therefrom before action had thereon ?

¥e think not. When the petition was presented it was the duty of the council to take proper steps to ascertain if the signatures were bona fide, and if it contained the requisite number who were electors? For that purpose the same might be referred to a committee and postpone action until time for such examination. Between the time the petition was presented and the next regular meeting, at which action was had thereon, several signers withdrew their names. This they had the right to do, the council not having acted thereon. Hayes v. Jones, 27 Ohio St. 218.

If the council had ordered the election, it may be that petitioners could not thereafter defeat an election, nor authorize the council to rescind its order, by withdrawal of their names. It was held, they could not do this in a road case, after the petition for a road had been acted on, and a report of the viewers made. Grinnell v. Adams, 34 Ohio St. 44.

Be this as it may, we think there was no error by the district court in holding, that the action of the council in referring the petition to a committee until the next regular meeting, and in refusing to order the election on its then appearing that by voluntary withdrawals, the number of petitioners had been reduced below the required number.

Motion overruled.  