
    Shugars, Clerk, v. Williams et al.
    
      Municipal Corporations—Villages and Hamlets—Creation of— Annexation of territory to.
    
    Chapters 2 and 5, of Division 2, of Title 12, Revised Statutes, relating to the general subject of the creation of villages and hamlets, and the annexation of territory to those already created, are to be treated, for purpose of construction, as one act. The course of procedure at the hearing before the county commissioners, directed by section 1557, is applicable to each branch of the subject. The authority there given to permit amendment to the petition applies to a petition for annexation of territory under subdivision 2 of chapter 5, and it is not necessary to the exercise of such discretion by the commissioiuers, that an ordinance should previously have been passed authorizing the agents of the corporation to apply for such amendment.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Rucas county.
    On the 7th day of December, 1887, the council of the village of Maumee, Rucas county, duly passed an ordinance to provide for the annexation of certain territory to the village, and therein directed, and empowered A. W. Eckert and Albert Alius, to make proper application to the commissioners of Eucas county, and to prosecute all necessary proceedings to effect annexation of said territory. On the. 4th day of January, 1888, the agents named filed with the board of commissioners a petition in behalf of the village, setting forth the ordinance, a description of the territory sought to be annexed, with a plat, and praying an order of annexation. Notice of the time and place of hearing was ' duly given, and the meeting of the board for this purpose was adjourned from time to time. On the 8th day of May, by leave of the board,, the agents, in the name of the village, presented an amendment to the petition and map, changing some of the lines and leaving out a portion of the territory described in the original petition, but not adding any additional territory, which was taken under advisement, and the further hearing adjourned until June 5. On the last named day the hearing was again adjourned until June 12. On that day the board again met, and a resolution was passed reciting among other things, that the application, and as amended, contained a correct description of the territory sought to be annexed, granting the prayer, and ordering the annexation of the territory therein described. No ordinance had been passed by the council authorizing the amendment. A certified transcript of the journal of the board, together with the original and amended petitions, and the plat attached to the same, was thereafter filed, by order of the board, with the plaintiff in error, the clerk of the village of Maumee. Within sixty days thereafter the defendants in error, owners of property lying within the territory ordered to be annexed, filed a petition in the court of common pleas praying for an order restraining the clerk from reporting the proceedings to the village council. The common pleas refused the prayer, and dismissed the petition. This judgment was reversed by the circuit court, and the case is here on a petition in error, asking a reversal of the judgment of the last named court.
    
      A. W. Eckert, Albert Alius and Hamilton & Ford, for plaintiff in error.
    
      Substantially but two errors are complained of: (1). No ordinance was shown as having been passed by the council of said village, authorizing an amendment of the petition of the village for annexation of territory; and, (2). The boundary line proposed for said territory sought to be annexed is inaccurate.
    The consideration of the first error alleged, involves the construction of the following statutes: Title XII., division 2, chapter 2, Revised Statutes. Also subdivisions. 1 and 2, chapter 5', same title and division, Revised Statutes. The first of these, in order named, relates to the creation of villages and hamlets; the second to the enlargement of municipal corporations on the application of parties outside and non-resident of the corporation, and the third to the annexation of territory on the application of the corporation, which is the case at bar.
    A peculiarity of these various statutes is, that while they have different purposes, yet they are so coupled together by references from the third to the second, and thence back to the first, é that they can only be interpreted in many respects in their entirety, in the language thereof, “ in so far as applicable.”
    It is noted as to this amendment, that it does not include territory not before embraced in the petition, but that it only embraces territory which was included in the original petition. The letter of these statutes nowhere requires an ordinance authorizing such amendment. The reason of these statutes does not require it.
    The amendment, in legal effect, was a mere order of the commissioners dismissing parties, against whom no cause of action was found.
    Is the proposed boundary line inaccurate? We insist that this alleged error cannot be maintained, for the reason that it is accurate within the rule prescribed by these statutes. By Sec. 1554, Revised Statutes, the rule is laid down for the government of the action of the common pleas court in the premises.
    Referring to the record, and to the evidence of the'witness Uhl, it is seen that this boundary line is easily within the statutory rule.
    
      
      Osborn & Smith, for defendant in error.
    I. We claim that in a case like the one at bar, an ordinance of the council describing the same territory as that ordered to be annexed by the commissioners, is a pre-requisite to the exercise of any jurisdiction by the commissioners—and that, as the petition acted on by the commissioners did not describe the same territory as that in the ordinance, their action was void. Section 1601, Revised Statutes.
    II. It is claimed,- however, that the agents of the corporation had authority to make the amendment by leave of the commissioners. It is obvious that these agents had only such power as was conferred by the ordinance appointing them.
    But the statute (section 1599) provides that the agent should be appointed to “ prosecute the proceedings necessary to effect such annexation;” meaning, of course, the annexation of the territory described in the ordinance.
    The ordinance is an act of legislative power. It requires the exercise of judgment and discretion on the part of the council. That body must itself exercise this discretion. It cannot delegate it to another person or board. This principle is so well settled as hardly to require citation of authority. We refer, however, to Dillon, Municipal Corporations, 4th ed., Sec. 66, and cases cited; Birdsall v. Clark, 73 N. Y., 73; Maxwell v. Bay City Bridge Co., 41 Mich., 453; Jackson Co. v. Brush, 77 Ill., 59; Starr v. Bell, 34 Ohio St., 194; Mechem on Agency, Sec. 190, and cases cited.
    To amend the petition in the present instance was tantamount to amending, the ordinance itself. “It is familiar law,” says Cooley, J., (in 41 Mich.", p. 495) that no such trust can be delegated by the person or body in whom it is conferred, but this very person or body and no other must exercise it.” The agents, in making this amendment, exceeded their powers, which were—and under the statute could only be—purely ministerial in their nature.
    III. It is, however, claimed that the amendment was authorized by section 1557, Revised Statutes. To this we reply: No power is conferred upon the commissioners to amend a petition of their own motion. They are sitting as a court of limited jurisdiction. The petition may be amended, not by them, but “ by their leave.” The petitioners must do the amending.
    IV. It is argued that even if the agents and the board of commissioner exceeded their powers, this is a mere'irregularity which can be healed by a subsequent acceptance of the annexation order of the council. This argument assumes that, after the commissioners have made the order, the papers are properly sent to the clerk to be by him laid before the council for its action. This was the course adopted in the present instance; but there is grave doubt whether the papers should not be sent directly to the recorder.
   Spear, J.

The question presented by the record is as to the legality of the order of the board of commissioners giving leave to amend the petition, in the absence of an ordinance authorizing such change, and ordering the annexation of the territory as described in the amended petition. It was the judgment of the circuit court that the action of the board, in that behalf, was unauthorized.

The proceeding is purely statutory, and the question is, therefore, to be determined by a consideration of all the statutes bearing upon the subject. In arriving at a conclusion the test to be observed is the intent of the lawmakers as expressed by the .law.

Chapter 2,. of division 2, of title 12, Revised Statutes, relates to the creation of villages and hamlets. Chapter 5, of the same division, relates to the annexation of territory to any city or village. Subdivision 1 treats of annexation on application of inhabitants residing on adjacent territory, and subdivision 2 treats of annexation on application of the corporation itself. The general subject matter of all is the formation of municipalities and changes in territory.

Looking to subdivision 2, we find that when the inhabitants generalfy desire to enlarge the corporate limits by annexation, the first step is for the council to pass a proper ordinance, and constitute one or more persons to act for the municipality in prosecuting the proceedings necessary to effect the annexation. This is done by the filing with the board of county commissioners of a petition setting forth the ordinance, and giving a description and a map. That done, “like proceedings shall be had, in all respects, so far as applicable, as are required under the provisions of subdivision 1,” (section 1602). No other method of procedure is pointed out in subdivision 2; so that, we necessarily turn, to subdivision 1. There we find, (section 1590), that when the petition is presented “ the same proceedings shall be had, in all respects, so far as applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as are required in the case of an application to be organized into a village under the provisions of this division.” So that, for further method of procedure before the board, we recur to chapter 2, prescribing the duties of the commissioners in case of an application for the organization of a village, and provision is there made for the hearing, as follows:

“Sec. 1557. 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, and any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and any 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; but 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.”

This section clearly gives the commissioners, in a proper case, authority to grant leave to amend. And, as stated before, it is the only provision directing procedure before the commissioners in either chapter 2, or chapter 5. If it cannot be held to apply to a case like the present then the legislation seems like a jumble, and the apparent purpose of the legislature is defeated. If such result can be reasonably avoided, it is the duty of the court to give such construction to the whole statute as will avoid it.

This court is of opinion that this may be done, and that the provisions of section 1557 should be held to apply. If they do apply, in substance and spirit, then the commissioners had authority to allow an amendment to the petition without the formality of action by the village council directing such amendment, for the statute nowhere requires such an ordinance. The purpose of such ordinance would be only to show that the action of the agents was directed by the principal. But may not subsequent ratification be as effectual as previous authority? If so, and if the statute furnishes a method by which this result may be reached, is not the end accomplished?

Apparently such provision is made, in substance. Recurring again to section 1590, we find that “the final transcript of the commissioners, and the accompanying map or plat and petition, shall be deposited with the clerk of the city or village to which such annexation is proposed to be made, who shall file the same in his office.” By sections following provision is made requiring the clerk, after the expiration of sixty days from the date of the filing, to lay the transcript, with map, plat and petition, before the council, and thereupon the council, by resolution or ordinance, shall accept or reject the application for annexation. If the application is rejected the proceedings stop. If accepted, the clerk must make two certified copies, containing the petition, maps, transcript of the proceedings of the commissioners, and of resolutions or ordinances, one of which he must forthwith deliver to the recorder of the county, who must make a record of the same in a proper book, and the other forward to the secretary of state. When the resolution or ordinance accepting the annexation has been adopted, the territory is to be deemed a part of the village, and the inhabitants residing therein are to have all the rights and privileges of the inhabitants within the original limits.

Provision is also made for delay, in case injunction proceedings are commenced within the sixty days mentioned, and for proper action by the officers in the event that the injunction is either finally sustained, or is dissolved.

It is manifest that one of the purposes of this legislation is to provide for the addition of territory by the joint action of the village council and the county commissioners. And it would seem that, giving effect to all these sections, a scheme has been mapped out which, though not altogether coherent in its parts, will, nevertheless, practically reach the end intended.

Objection is made that the commissioners did not, after the amendment, act respecting the same territory as that which the ordinance described, and hence-their action was void for want of jurisdiction. But is not this rather technical? The amended petition does describe territory described in the ordinance, though not all of it, and does not include any not described in the ordinance. In other words, the effect of the action of the commissioners was to grant to the petitioners a part of their prayer, not all of it. In the'practical administration of justice mere technical objections have to give way to substance.

It is further objected that the agents could not have had authority to make the amendment to the petition because the council could not, as to a matter of this kind, delegate its authority. If by this is meant that i't could not delegate authority to make a change which would bind the municipality as a finality, the claim may be conceded. But we have already seen that the scheme contemplated further action by the council, and, it is submitted, this fact destroys, the force of the objection,

It is the judgment of this court that, giving a reasonable construction to the statute, the action of the commissioners was authorized, and that, in holding otherwise, the circuit, court erred.

Judgment reversed.  