Summary
stating that a statute "may not be restricted, constricted, qualified, narrowed or abridged"
Summary of this case from Cranfield v. State Farm Fire & Cas. Co.Opinion
No. 31044
Decided March 17, 1948.
Municipal corporations — Incorporation of villages — Sections 3517 and 3626, General Code, cumulative — Words "any territory" comprehend platted as well as unplatted lands — Application to incorporate may be made to county commissioners or township trustees — Statutory construction — Legislative intent — Expressio unius est exclusio alterius, inapplicable, when — Enacting clause of supplemental enactment, not controlling, when — Legislative intent determined, how.
1. Sections 3517 and 3526, General Code, relating to incorporating villages, are cumulative.
2. The words "any territory" used in Section 3526, General Code, comprehend and include platted as well as unplatted lands, and application for incorporation of platted lands may be properly made to either the county commissioners, under the provisions of Section 3517, or to the township trustees, under the provisions of Section 3526.
3. The rule of expressio unius est exclusio alterius is of no significance and is to be given no consideration in the construction or interpretation of a statute when the application of such rule contravenes legislative intent.
4. The fact that a particular legislative enactment provides in the enacting clause that such enactment is supplemental to another statute is not controlling as to legislative intent and will be given no consideration by the court when the application of the language in the enacting clause would render the meaning of such particular enactment contrary to the clear intent of the Legislature as expressed therein.
5. The court must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.
APPEAL from the Court of Appeals for Hamilton county.
Pursuant to the provisions of Section 3526, General Code, there was filed on March 27, 1946, with the township trustees of Columbia township, Hamilton county, Ohio, a petition requesting that an election be held to obtain the sense of the electors of certain designated territory sought to be incorporated into a village. The territory sought to be incorporated included platted lands. Pursuant thereto, an election was held and a majority of the electors voted for incorporation. Thereupon the trustees certified their proceedings to the county recorder, as provided by Section 3530, General Code.
Subsequent thereto and pursuant to Section 3532, General Code, as modified by Section 3531, plaintiff, appellant herein, filed his petition and subsequently his amended petition in the Court of Common Pleas of Hamilton county, seeking an injunction restraining the county recorder from making a record and certifying a transcript thereof to the Secretary of State.
On May 13, 1946, Thomas F. Dunlap and George C. Taylor, agents for the incorporation petitioners, were made parties defendant. On June 6, 1946, the John Hilberg Sons Company made application to become a party plaintiff and filed its petition seeking injunctive relief. Separate answers were filed by the county recorder and the agents for the petitioners.
The issues thus joined, the cause came on for hearing in the Court of Common Pleas, resulting in a finding and decree enjoining the recorder from certifying the record of the proceedings for incorporation to the Secretary of State.
Appeal on questions of law and fact was prosecuted to the Court of Appeals where the cause was heard de novo and a finding and decree was entered, denying and dissolving the injunction previously granted by the Court of Common Pleas.
Although urged in brief that the Court of Appeals was without jurisdiction to hear the cause as one in chancery and that Section 3526, General Code, is unconstitutional, it was stated in open court that those issues were not urged. Therefore, no consideration is given them.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Weinberger Grad, for appellant.
Messrs. Leroux Weber, for appellees Thomas F. Dunlap and George C. Taylor.
The sole issue presented to this court for consideration and determination may be stated as follows: May the incorporation of platted lands be accomplished only under Section 3517 et seq., General Code, or may such incorporation be equally accomplished by proceedings under Section 3526 et seq.? Counsel on either side have traced the law, relative to incorporation of villages under the provisions of what is now known as Section 3517, from its inception, dating from the year 1852 (50 Ohio Laws, 223), down to the last amendment thereto, and we have considered that history and noted the various changes made therein through the years. It appears from the history of this legislation that, down to the year 1896, jurisdiction to incorporate platted territory and, by amendment, adjacent unplatted territory was vested solely in the county commissioners. Officers of no other political subdivision of the state, down to the time of the enactment of Section 3526, were authorized or given jurisdiction of proceedings to incorporate territory into villages. It appears, therefore, that the county commissioners on proper application are authorized to incorporate not only platted lands within the county, but adjacent unplatted lands. What is now known as Section 3526, General Code, was enacted in 1896 (92 Ohio Laws, 333). With slight amendment that section now provides:
"When the inhabitants of any territory or portion thereof desire that such territory shall be incorporated into a village, they shall make application, by petition, to the trustees of the township in which the territory is located, or, if the territory is located in more than one township, to the trustees of the township in which the majority of such inhabitants reside. Such petition shall be signed by at least thirty electors of the territory, a majority of whom shall be freeholders, and shall be accompanied by an accurate map of the territory, and shall contain in addition to the matter hereinbefore required to be set forth in petitions to incorporate territory laid off into village lots, the request of the petitioners that an election be held to obtain the sense of the electors upon such incorporation. Such petition may be presented at a regular or special meeting of the township trustees."
We find therefore that the Legislature has enacted two separate statutes dealing with the incorporation of villages, Section 3517 et seq., providing for the incorporation of platted lands and adjacent unplatted lands, by and through the county commissioners, and Section 3526, conferring on trustees of another political subdivision, the township, jurisdiction of proceedings to incorporate villages out of any territory or portion thereof, instituted by petition to the trustees of the township in which the territory is located.
Now it is not urged, neither can it be successfully claimed, that the Legislature is not empowered to authorize the county commissioners to proceed, on proper application, with incorporation of territory into a village, whether the lands be platted or unplatted, and neither can it be successfully claimed that the Legislature is powerless to grant similar jurisdiction in such proceedings to township trustees, affecting territory Within the territorial boundaries of the township, or even broader powers than those granted to county commissioners. See Section 2, Article XVIII of the Ohio Constitution, providing that "general laws shall be passed to provide for the incorporation and government of cities and villages," and Section 6, Article XIII of the Constitution, providing that "the General Assembly shall provide for the organization of cities, and incorporated villages, by general laws."
We are, therefore, confronted with the question as to what was the legislative intent in enacting Section 3526.
Did the Legislature intend, in enacting that section, that application could be made to the township trustees to incorporate villages out of any territory within the township or an adjoining township, whether platted, unplatted or both, or was the authorization to township trustees limited to unplatted lands only? Without question, the township trustees are authorized to proceed with the incorporation of unplatted territory, and it is urged that such is the extent of their powers. If the township trustees have jurisdiction to proceed in the instant case as to unplatted lands only, the decree of the Court of Appeals should be reversed and that of the Common Pleas Court affirmed. On the other hand, if it be determined that the statutes providing for incorporation are cumulative as to platted lands, the decree of the Court of Appeals should be affirmed.
The criterion or test to be followed in the determination of legislative intent was laid down by this court in the case of Shugars, Clerk, v. Williams, 50 Ohio St. 297, 34 N.E. 248, as follows: "* * * the test to be observed is the intent of the lawmakers as expressed by the law."
The only mode in which the will of a legislature is spoken is the statute itself. Hence, in the construction of statutes, it is the legislative intent manifested in the statute that is of importance, and such intent must be determined primarily from the language of The statute, which affords the best means of the exposition of the intent. Indeed, it is the duty of the courts to give a statute the interpretation its language calls for where this can reasonably be done, and the general rule is that no intent may be imputed to the Legislature in the enactment of a law, other than such as is supported by the language of the law itself. The courts may not speculate, apart from the words, as to the probable intent of the Legislature. As a reason for these rules, it has been declared that the Legislature must be assumed or presumed to know the meaning of words, to have used the words of a statute advisedly and to have expressed legislative intent by the use of the words found in the statute; that nothing may be read into a statute which is not within the manifest intention of the Legislature as gathered from the act itself; and that the court may write no limitations therein. As variously expressed, the statute may not be restricted, constricted, qualified, narrowed or abridged. Hence, general words are to have a general operation, where the manifest intention of the Legislature affords no ground for qualifying or restraining them. Under this rule, where the statute is expressed in general language, it is to be applied to all cases coming within its terms. The Legislature will be presumed to have intended to make no limitations to a statute in which it has included by general language many subjects, persons or entities, without limitation. It is a general rule that courts, in the interpretation of a statute, may not take, strike or read anything out of a statute, or delete, subtract or omit anything therefrom. To the contrary, it is a cardinal rule of statutory construction that significance and effect should if possible be accorded every word, phrase, sentence and part of an act. 50 American Jurisprudence, 197 et seq., Section 217 et seq. These rules of construction are of such general application that citing of specific cases is unnecessary. These rules of construction are subject to some exceptions; nevertheless, if the act or acts in question are couched in plain and unambiguous language, courts are not justified in adding words to such statutes, neither may the courts delete words from a statute, but must construe intent of the lawmakers as expressed in the law itself.
In the light of these general rules of statutory construction, let us examine the statutes in question. Section 3517, in part, provides:
"The inhabitants of any territory laid off into village lots, a plat of which territory has been acknowledged and recorded as is provided with respect to deeds, or the inhabitants of any territory which has been laid off into such lots and surveyed and platted by an engineer or surveyor who certified thereon, under oath, to its correctness, and which is recorded as is provided with respect to deeds, * * * and adjacent territory, may obtain the organization of a village in the manner provided in this title."
There are other provisions in that section, not involved in the instant case.
Section 3518, General Code, provides:
"Application for such purpose shall be made by petition, which, except as provided in the last preceding section, shall be signed by not less than thirty electors, residing within the proposed corporate limits, and addressed to the county commissioners, accompanied by an accurate map of the territory."
Subsequent sections provide the mode of procedure following the filing of the application.
There is certainly no ambiguity to be found in Section 3517, and to add the words, "exclusive jurisdiction," to such section would be in violation of the above-noted rules of construction and would be in our judgment judicial legislation. Nowhere in the statute dealing with the incorporation by county commissioners is exclusive jurisdiction conferred on the commissioners.
With Section 3517 in mind, the Legislature in 1896 enacted what is now known as Section 3526 which has been amended slightly since that date. That statute provides for incorporation of villages by application to township trustees.
Section 3526, in part, provides:
"When the inhabitants of any territory or portion thereof desire that such territory shall be incorporated into a village, they shall make application, by petition, to the trustees of the township in which the territory is located * * *."
The following sections provide the procedure to be followed upon the filing of the petition. It is to be observed that, under Section 3526 and the following sections, the electors themselves determine whether the incorporation shall be had, whereas such is not the case under Section 3517 et seq. In plain and unambiguous language, the Legislature, in Section 3526, provided:
"When the inhabitants of any territory or portion thereof desire that such territory shall be incorporated into a village, they shall make application, by petition, to the trustees * * *." (Italics ours.)
No exception is made as to the provisions found in Section 3517. It is urged that Section 3526 applies to unplatted lands only. Nowhere in such section are the words "unplatted lands" found. However, it is claimed that, due to the fact that Section 3517 makes provision for incorporation of platted lands, the county commissioners are the exclusive agency for the incorporation of villages out of platted lands. To give this statute that construction, the court would be compelled to read into Section 3526 the words "unplatted lands," whereas the statute provides, "any territory or portion thereof" may be incorporated thereunder. Does the word "any" connote "a part of" or "any or all" lands, whether platted or unplatted? "Any" is a word of flexible meaning and must be interpreted in the light of the context. A majority of the court is of the view that this court is not authorized to, neither should it, add to Section 3526 the words "Unplatted lands." Neither are we justified in holding that "any territory" means "unplatted lands" only. "Any" is often used as meaning "all." Citations to that effect may be found in 3 Words and Phrases (Perm. Ed.), 532. It is our view that "any territory" as used in the statute means any or all territory, and that the Legislature intended to include not only unplatted but platted lands as well and so provided when it used the words in the statute, "the inhabitants of any territory." To hold otherwise would be usurping the prerogative of the legislative branch of government. In other words, we would be compelled to delete the word "any" before the word "territory" and substitute therefor the word "unplatted." If any such limitation is to be placed upon the township trustees, appeal should be had to the legislative and not the judicial branch of government.
It has been suggested the doctrine of expressio unius est exclusio alterius applies. It is true that that doctrine might properly apply to Section 3517, as that statute provides for the incorporation of platted lands and adjacent lands and therefore excludes the incorporation of any other territory. However, in Section 3526 there is no designation of specific territory requiring the application of that doctrine. Let us assume the doctrine does apply. In the case of State, ex rel. Curtis, v. DeCorps, Dir., 134 Ohio St. 295, 16 N.E.2d 459, it was contended "that the Legislature, by enacting Section 486-17 b, General Code, 'having made lay-off in the police and fire departments in the inverse order, has indicated that it did not intend that same should apply to the other classifications' "; and that the doctrine should be applied.
In disposing of those claims the court said at page 298:
"The maxim is of utility only as an aid in ascertaining legislative intent, but when its employment operates to defeat such intent it will be held to be inapplicable.
" 'The rule should not be carried beyond the reason for its existence. It is to be applied only as an aid in arriving at the legislative intention, and not to defeat the apparent intention.' 37 Ohio Jurisprudence, 557, Section 296. See, also, 25 Ruling Case Law, 981, 982, Section 229."
The court quoted also with approval from the case of Springer v. Government of Philippine Islands, 277 U.S. 189, 72 L.Ed., 845, 48 S.Ct., 480, as follows:
" 'The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction it is only an aid in the ascertainment of the meaning of the law and must yield whenever a contrary intention on the part of the lawmaker is apparent. Where a statute contains a grant of power enumerating certain things which may be done and also a general grant of power which standing alone would include those things and more, the general grant may be given full effect if the context shows that the enumeration was not intended to be exclusive.' "
And the court cited a number of authorities sustaining that rule. Applying the rule to the instant case, we have Section 3517 containing a grant of power enumerating certain things. Section 3526 is a general grant of power which standing alone would include those powers enumerated in Section 3517. In other words, if there were no Section 3517 and Section 3526 were enacted, no one would contend that Section 3526 does not include platted and unplatted lands. Section 3526 in no way affects the provisions contained in Section 3517. The latter is still in full force and effect. It is somewhat significant that at the time of the enactment of former Section 3526, in 1896, the Legislature had before it for consideration some amendment to the statute with reference to incorporation of platted lands, under former Section 3517, and the Legislature made no changes in the wording of Section 3517, indicating exclusive jurisdiction in the commissioners of the county as to platted lands.
"Whether a particular statutory remedy is exclusive or merely cumulative, is a question of construction and interpretation, depending upon the intent of the Legislature as manifested in the terms and provisions of the statute.
"In some cases, a remedy prescribed by statute is regarded as exclusive. Indeed, in particular cases, it may appear, either expressly or by necessary implication, that the remedy provided therein is intended to be exclusive. This is true where a new remedy or mode of procedure is authorized by a new statute, and the new procedure is inconsistent with the former one. In such cases, the person injured must confine himself to the statutory remedy. However, an existing remedy is not necessarily taken away by a statute which simply provides an additional remedy. It may appear that the remedy afforded by a particular statute is not intended to be exclusive, but cumulative with respect to other remedies of the party. Indeed, an existing remedy, particularly one which is long established, is not regarded as taken away by statute, except by direct or express enactment, or necessary implication from language showing, in a clear manner, that the statutory remedy was intended to be exclusive. Hence, where a new remedy is provided by statute for an existing right, and it neither denies an existing remedy nor is incompatible with its continued existence, the new remedy is regarded as cumulative, and the person seeking redress may adopt and pursue either remedy at his option." American Jurisprudence, page 590, Section 595.
Now it is urged further that inasmuch as Section 3526 et seq. are supplemental to Section 3517 et seq., that fact is indicative of legislative intent. However, this court held in the case of State, ex rel. Bd. of Edn., v. Ach, 113 Ohio St. 482, 149 N.E. 405:
"The declaration of the Legislature in the title to the act that it is only supplementary legislation is by no means controlling, if the effect of the enactment is to change existing laws."
This court is not holding that the title of an act may not be resorted to as an aid in the construction of the act if it is ambiguous, but when the act is unambiguous and the intent clear, the title of the act is for such resort of no consequence. The title of an act is never employed to defeat the clear intent of the Legislature.
This court finds itself in disagreement on the question presented, but the majority is of the view and holds that these statutes are cumulative; that application may be made to the county commissioners, under Section 3517 et seq., for incorporation into villages of platted lands and unplatted lands adjacent thereto; and that, under Section 3526, application may properly be made to the township trustees for incorporation of not only unplatted lands, but platted lands.
The decree of the Court of Appeals is affirmed.
Decree affirmed.
WEYGANDT, C.J., ZIMMERMAN, SOHNGEN and CARPENTER, JJ., concur.
MATTHIAS and HART, JJ., dissent.
CARTER, J., of the Seventh Appellate District, sitting by designation in the place and stead of TURNER, J., and CARPENTER, J., of the Sixth Appellate District, sitting by designation in the place and stead of STEWART, J., pursuant to Section 2, Article IV of the Constitution.
The statutory interpretation involved in the determination of the question at issue in this case presents great difficulty because these statutes were passed at different times and are not well integrated.
In reviewing these statutes and the meager judicial authority interpreting them, 28 Ohio Jurisprudence, 49, Section 19, reads:
"It has been held that county commissioners have exclusive jurisdiction of a petition for the incorporation of territory embraced within the provisions of Section 3517, General Code — that is, territory all or a portion of which is laid off into village lots — and that township trustees do not have jurisdiction, under Section 3526 et seq., General Code, of a petition for the incorporation of such territory. But the contrary has also been held."
It is quite clear that for many years before the enactment of what is now Section 3526, General Code, the only type of territory which could be incorporated into a municipal corporation was that which consisted of or included lands already laid off in platted lots, the plats of which had been recorded, and that the incorporation of such territory could be accomplished only through a petition to and action by the county commissioners. Section 3517, General Code.
On the other hand, it seems quite clear that Section 3526 et seq., General Code, brought into the Code by supplemental legislation (92 Ohio Laws, 333), provides for the incorporation of a new class of territory, namely territory, no portion of which had theretofore been platted or laid off in village lots and, for that reason, could not of itself be incorporated under the provisions of Section 3517, General Code.
The narrow question here for determination is whether this supplemental legislation invested, by implication, township trustees with jurisdiction to incorporate also platted lands which theretofore could have been incorporated only by action of county commissioners.
A brief history of this legislation is helpful in solving the problem at hand. From 1852 to 1869, the inhabitants of platted or unplatted territory could petition the county commissioners for incorporation (50 Ohio Laws, 223). In 1869, the General Assembly adopted a municipal code, under Sections 9, 10 and 11 of which, the inhabitants, residing in any territory laid off into town or village lots, the plat of which had been made, acknowledged and recorded, which territory might include adjacent territory not laid off into lots, could petition the county commissioners for the incorporation of such territory (66 Ohio Laws, 145, 150). By that enactment, the General Assembly, after 17 years, took away the right to incorporate unplatted territory by itself, and permitted such territory to be incorporated only when attached to platted territory and made a part of the incorporation thereof. When the Municipal Corporation Act, adopted in 1878, was carried into the Revised Statutes in 1880, Sections 1 to 9, inclusive, of Chapter 2, Division 2, of the Municipal Corporation Act, providing for the incorporation of villages and hamlets, as they then stood in 75 Ohio Laws, 161, 169, became Sections 1553 to 1561, inclusive, Revised Statutes, but no substantial change was made in the law until April 18, 1896, when Sections 1562 and 1564, Revised Statutes, were amended so as to give the court greater jurisdiction in enjoining the proceedings in such incorporations (92 Ohio Laws, 196).
On April 27, 1896, just nine days after the amendment to Sections 1562 and 1564, Revised Statutes, as above noted, the General Assembly, not in the form of an amendment but by supplemental legislation, added new matter to the incorporation statutes, Section 1 of the act reading as follows (92 Ohio Laws, 333):
"Be it enacted by the General Assembly of the State of Ohio, That Section 1561 of the Revised Statutes be supplemented as follows: * * *"
Then followed three supplemental sections designated as 1561 a, 1561 b and 1561 c, which, for the first time, gave township trustees jurisdiction on a petition to incorporate "any territory or portion thereof" in a single township. When the Ohio General Code was adopted in 1910, Sections 1553 to 1561, inclusive, Revised Statutes, became Sections 3517 to 3525, inclusive, General Code, and the supplemental Sections 1561 a, 1561 b and 1561 c, Revised Statutes, became Sections 3526 to 3531, inclusive, General Code.
It seems to the writer of this dissent that certain inferences must be drawn from this legislative history. In the first place, it was the legislative policy generally to permit the incorporation of platted lots only, and that by the authority of the county commissioners. When, in 1896, the General Assembly adopted legislation giving township trustees jurisdiction in the incorporation of township territory, there was no intent to take away any jurisdiction from the county commissioners as to platted lands. This is clearly shown by the fact that, only nine days before, the General Assembly had added to and strengthened the procedure as applied to platted lots under the jurisdiction of the county commissioners and did not repeal a single word or sentence of the original legislation granting such jurisdiction. Furthermore, the General Assembly itself designated the legislation granting township-trustee jurisdiction as to township lands as supplemental, which must mean such legislation is an addition to the legislation already in force.
One of the strongest indices that the jurisdiction of the township trustees is confined to unplatted lands and that of the county commissioners to platted lands is found in the supplemental legislation itself. In Section 3526, General Code, providing what the petition to invoke the jurisdiction of the township trustees shall contain, appears the following:
"Such petition shall be signed by at least thirty electors of the territory * * *, and shall contain in addition to the matter hereinbefore required to be set forth in petitions to incorporate territory laid off into village lots [Section 3519, General Code, a part of the procedure for the incorporation of platted lands by county commissioners], the request of the petitioners that an election be held to obtain the sense of the electors upon such incorporation." (Italics supplied.)
This provision of the supplemental legislation plainly recognizes that another separate and independent procedure shall still apply when platted lands are involved, and that this supplemental procedure authorizing a petition to trustees for incorporation is limited to lands no part of which is platted.
Section 3526, General Code, to begin with, is ambiguous in the term "any territory or portion thereof" and is a general statute. On the other hand, the provision of Section 3517, General Code, that "the inhabitants of any territory laid off into village lots, a plat of which territory has been acknowledged and recorded," etc., is a specific statutory provision giving the commissioners jurisdiction and authority under those specified circumstances to make the incorporation. It is a very well accepted rule of statutory construction that special provisions will ordinarily prevail over general provisions. County of Miami v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726; State, ex rel. Myers, v. Industrial Commission, 105 Ohio St. 103, 136 N.E. 896; Western Southern Indemnity Co. v. Chicago Title Trust Co. et al., Receivers, 128 Ohio St. 422, 191 N.E. 462. The courts will presume that the legislative branch of government knows the existing condition of the law, whether common law ( State, ex rel. Morris, v. Sullivan, 81 Ohio St. 79, 90 N.E. 146) or statute law ( Norris v. State of Ohio, 25 Ohio St. 217, 18 Am.Rep., 291; Johnson v. Johnson, Exr., 31 Ohio St. 131; Southern Surety Co. v. Standard Slag Co., 117 Ohio St. 512, 159 N.E. 559); and that the legislative branch does not intend to change the pro-existing law unless the Legislature clearly shows an intention to do so. For these reasons, all the statutes on the same subject matter must be read together, the construction of one may be affected by the provisions found in others and statutes must be reconciled if a reasonable construction will permit. Heckman v. Adams, 50 Ohio St. 305, 34 N.E. 155; Maxfield, Treas., v. Brooks, 110 Ohio St. 566, 144 N.E. 725.
It appears to me there is a legislative plan or scheme running through the statutory law of Ohio whereby the county commissioners were given what may be termed exclusive jurisdiction over certain matters having to do with the platting of lots in territory outside a municipality, the incorporation of territory containing platted lots, the annexation of territory of a municipal corporation to a contiguous municipality and the detachment of a part of the territory of a municipality from the remainder of the municipality. The evident purpose of such legislative provisions is to preserve a proper balance and integrity in streets and highways, as between that part of the territory of a county, which is platted or incorporated, and that part of the territory, which is unplatted and unincorporated. A brief review of this legislation, some of which was on the statute books before and some of which has been enacted since 1896 when the township trustees were given jurisdiction to begin proceedings for the incorporation of unplatted lands by election of the resident voters, will disclose this salutary legislative purpose.
When the General Assembly in 1869 adopted a municipal code for this state, there were included therein Sections 679, 680 and 681 of the code (66 Ohio Laws, 264, 265), now comprehended in Sections 3548 and 3549, General Code, which make provision for the annexation to a municipality of unincorporated territory adjacent thereto, on the petition of the inhabitants of such territory. These sections provide that when the inhabitants residing in territory adjacent to a municipality desire to have such territory annexed to such municipality, they must petition the county commissioners of the county in which such territory is located and the commissioners in considering the matter shall follow the same proceedings as far as applicable and assume the same duties, "as required in case of an application to be organized into a village under the provisions of this division," which was then Chapter 2, Municipal Code, being the same sections which then and now give county commissioners jurisdiction to incorporate platted lots and lands. The petition may be amended by leave of the commissioners, and after full hearing as to the regularity of the petition and as to the equities in the matter, the commissioners may grant the petition whereupon the matter goes to the council of the municipality to which the annexation is proposed for its acceptance or rejection. It is significant to note that the procedure for such annexation is coupled up exclusively to the procedure for the incorporation of platted lands and lots, application for which is made to county commissioners.
When the inhabitants of a municipal corporation desire to enlarge its corporate limits by the annexation of contiguous territory, the council of the corporation shall pass an ordinance authorizing such annexation and then the corporation must petition the county commissioners for authority to annex such contiguous territory and the county commissioners must grant such permission before such territory may be annexed. See Sections 3558 to 3561, inclusive, General Code.
Again, under the provisions of Section 3575, General Code, and its predecessor sections in force since 1871 (68 Ohio Laws, 85), when a city and village adjoin each other, and the inhabitants of all or any portion of the territory constituting all or a part of the village desire to be annexed to the city, on application of the council of the city and on written request of a majority of the legal voters inhabiting all of the territory of such village, or on the written request of two-thirds of the legal voters inhabiting any part of the territory of such village, the commissioners of the proper county may cause such alteration to be made and the boundaries of the city and village, respectively, to be established, in accordance with the application and request, and such territory shall constitute a part of the city. In such proceedings the county commissioners are to be governed by the provisions, as far as applicable, of Section 3547 et seq., General Code, which again in turn means the procedure prescribed by above-mentioned Sections 3517 to 3525, inclusive, General Code, prescribing the manner of proceeding on applications for the annexation of adjacent unincorporated territory to municipalities. The annexation of all or a portion of the village is then completed by the adoption of an ordinance or resolution of the city council accepting the annexation.
Again, under authority of Section 3577, General Code, and its predecessor sections enacted since 1877 (74 Ohio Laws, 109), upon petition of a majority of the freehold electors owning lands in any portion of the territory of a municipality, praying to have such portion of the territory detached therefrom, the commissioners of the county in which such portion of the territory is situated, with the assent of the council of the municipality given, in an ordinance passed for such purpose, are authorized and required to detach such territory from the municipality and attach it to any township contiguous thereto or if the petition so requests, erect the territory into a new township.
It is interesting to note also that in 1929, after the passage and with full knowledge of the provisions of the supplemental legislation providing for the incorporation of villages in certain cases by petition to the township trustees, the General Assembly amended Section 3583, General Code, and added supplemental Section 3583-1, General Code (113 Ohio Laws, 642). Section 3583, General Code, as amended, provides, in substance, that before any plat of lands outside a municipality wherein the proprietor of such lands shall dedicate any public highways shall be recorded, it must be approved by the county commissioners of the county wherein such lands are situated, unless there shall be an organized planning commission in such municipality, in which event such commission shall approve the plat. Section 3583-1, General Code, provides that the "county commissioners may adopt general rules and regulations governing plats and subdivisions of land falling within their jurisdiction, to secure and provide for the co-ordination of the streets within the subdivision with existing streets and roads or with existing county highways, for the proper amount of open spaces for traffic, circulation and utilities, and for the avoidance of future congestion of population detrimental to the public health, safety or welfare; * * *. The ground of refusal to approve any plat submitted in accordance with the provisions of the preceding section shall be stated upon the record of the county commissioners and within sixty (60) days thereafter the person submitting any plat which the county commissioners have refused to approve may file a petition in the Court of Common Pleas of the county wherein the land described in said plat is situated to review the action of the county commissioners."
To sum up, in every instance where plats are involved in the incorporation of municipalities, in the annexation of lands to incorporated villages or cities, or in the detachment of lands therefrom, the county commissioners of the county wherein the lands are located are given jurisdiction to approve or disapprove the proposed action, and not once are township trustees given such jurisdiction. The reason or basis for this jurisdiction is plainly disclosed in the provisions of Section 3583-1, General Code, to the effect that when lands are taken from the townships of the county into incorporated villages or cities, or are taken from such incorporated villages or cities back into the county, the county commissioners, having jurisdiction over all platted territory, are necessarily interested in the adequacy and co-ordination of the connecting highways involved in such changes. Since township trustees are given no jurisdiction over platted lands by any specific statutory provision, Section 3526, General Code, should not be so construed as to confer that jurisdiction upon them by implication.
Giving consideration to the entire legislative scheme of municipal incorporation, in my opinion the supplemental legislation giving trustees jurisdiction to incorporate lands is limited to unplatted lands.
MATTHIAS, J., concurs in the foregoing dissenting opinion.