Dabkowski v. Baumann
| Decision Date | 26 June 1963 |
| Docket Number | No. 37639,37639 |
| Citation | 175 Ohio St. 89,191 N.E.2d 809 |
| Parties | , 23 O.O.2d 386 DABKOWSKI et al., Appellants, v. BAUMANN, Aud., Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. An agent, duly appointed by petitioners in petition for annexation, is authorized and empowered within the scope of such agency to offer at the hearing before the Board of County Commissioners amendments to the petition for annexation which are in the interests of his principals and in furtherance of the enterprise.
2. An agent, duly appointed by petitioners in petition for annexation, may not alter or amend the petition before the Board of County Commissioners in any way contrary to the interests of his principals or to the furtherance of the enterprise.
3. Wide discretionary power and authority rests in the Board of County Commissioners in reaching a conclusion on the evidence submitted in an annexation proceeding before it.
On November 29, 1960, Robert E. Colvin and Maxine Colvin, husband and wife, filed a petition with the Board of County Commissioners of Sandusky County, seeking to have annexed 243.399 acres of land, more or less, adjacent to the municipality of Fremont. The petitioners were the only freeholders residing in and upon the territory sought to be annexed. The petitioners designated John D. Starn, attorney at law, as their agent in the matter of the proposed annexation under the provisions of Section 709.02, Revised Code.
In the brief of the appellants, at page 2, it is claimed that other residents and freeholders were excluded in 'islands' surrounded by the territory sought to be annexed. A map of the area was attached to the amended petition.
In one of the excluded 'islands' there were '26 or more family resident freeholders closely grouped.' There were two or three other excluded islands with few, if any, residents thereon and no freeholders. A portion of the yard of William and Joan Heckters, freeholders, was in the described area. They objected to the annexation and refused to sign the petition. Petitioners' agent, at the hearing before the Board of County Commissioners, moved to amend the petition to exclude this portion of the yard from the territory described in the petition. The board sustained the motion, and the disputed portion of the parcel was excluded from the territory under consideration.
The Board of County Commissioners allowed the annexation. The instant action was then brought in the Court of Common Pleas of Sandusky County, seeking to enjoin the defendant, Donna G. Baumann, auditor of the city of Fremont, from laying before the city council of Fremont the transcript of the proceedings had before the Board of County Commissioners pursuant to the provisions of Section 709.04, Revised Code.
A trial was had in the Court of Common Pleas. Evidence was adduced from numerous witnesses by the adversary parties. At the conclusion of the hearing and upon submission of the cause to the court, the petition for injunction was dismissed.
The judgment of the Court of Common Pleas was affirmed by the Court of Appeals.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Russell S. Hull, Fremont, for appellants.
John D. Starn, Fremont, for appellee.
The appellants claim that the record discloses prejudicial error, in substance, as follows:
The 26 families residing in the excluded 'island' should be considered 'freeholders' of the area sought to be annexed, and that, therefore, the petition to annex was fatally defective by reason of insufficient signatures; that the map pretending to describe the annexed area was inaccurate; and that the notice failed to satisfy the requirements of Section 707.05, Revised Code, in that it was posted in a window in a rest home in the area eight feet from the ground and 75 feet from the road and not in a conspicuous place. Appellants questioned the authority of the petitioners' agent to move to amend the petition to exclude the portion of the yard of the Heckterses from the tract described in the amended petition and further questioned whether the annexation proceedings were 'right, just and equitable' under all the facts and circumstances then and there existing.
Section 709.02, Revised Code, reads as follows
Annexation proceedings are controlled by statute. The party seeking an injunction must show a clear right thereto. In a hearing upon a petition to annex territory adjacent to a municipal corporation, the Board of County Commissioners is allowed wide latitude in the exercise of its discretion.
The appellants present four assignments of error. We shall discuss them in the order in which appellants have presented them.
First. 'The Court of Appeals erred in the interpretation and construction of Section 709.02, Revised Code.'
Under this assignment of error it is contended that the freeholders residing in the excluded 'islands' should be considered as 'inhabitants residing on' or 'residing in a territory adjacent to a municipal corporation within the purview of Section 709.02, Revised Code'; and that the map defining the area annexed failed to meet the requirements of Section 709.02, Revised Code.
The statute does not limit the geographic size of any territory adjacent to a municipal corporation proposed to be annexed, nor does it prescribe any limitation as to the number of persons residing therein. The phrase, 'at their option,' leaves the size of the area and the numbers of persons residing therein to be determined by the 'freeholders' who signed the petition.
Twenty-five or twenty-six families resided in one of the 'islands' excluded. Nonresidents of an area sought to be annexed do not have any voice in the annexation proceedings other than the right to appear and attend the hearing before the Board of County Commissioners and to contest the annexation. See Section 707.06, Revised Code, and Chadwell v. Cain, Clerk, 169 Ohio St. 425, 430, 431, 160 N.E.2d 239.
A single freeholder, if he is the only one residing in the territory described in the petition, constitutes a majority under Section 709.02, Revised Code.
It is not unusual to find an 'island' densely populated and entirely surrounded by a municipality. Furthermore, there are instances where a whole municipality is surrounded by a larger municipality.
As to the claim under this assignment of error that the map is not accurate, the record discloses that this map was checked 'for accuracy' by the city engineer of Fremont, the Sandusky County engineer, and an Ohio registered surveyor. With such evidence in the record it cannot be said that the Board of County Commissioners abused its discretion in reaching the conclusion that the map conformed to the statute.
The first assignment of error is overruled.
Second. 'The Court of Appeals erred in the interpretation and construction of Section 707.05, Revised Code.'
This section deals with the presentation of the petition to the Board of County Commissioners and the filing of the same in the office of the county auditor, where it is subject to inspection by the general public, and provides further that 'thereupon the agent for the petitioners shall cause a notice containing the substance of the petition, and the time and place where it will be heard, to be published in a newspaper, printed and of general circulation in the county, for a period of six consecutive weeks, and shall also cause a copy of the notice to be posted in a conspicuous place within the limits of the proposed municipal corporation, not less than six weeks prior to the time fixed for the hearing.'
Notice was given as required by law in a newspaper of general circulation. A copy of the notice was placed in a window of a public rest home. This rest home was on private property and as hereinbefore stated was about 75 feet from the sidewalk, and the notice was posted about eight feet above the ground.
At the hearing before the Board of County Commissioners all the appellants were present. Counsel for the appellants in the argument before this court stated that everyone who had an interest in the controversy was either present or had knowledge of it. There was no denial of any right to anyone by the method used to post the notice. There were no public buildings within the territory annexed. Although a more conspicuous place may have been found, nevertheless it appears that no one in interest was prejudiced by the manner or method in which notices of the hearing were made public. The second assignment of...
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