dissenting
I must respectfully dissent from the opinion of the majority concerning Appellant's second assignment of error.
The Board of County Commissioners possesses broad discretion in determining questions of fact in annexation proceedings. The Board's conclusions of fact may not be reversed on review unless they are found to be unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a preponderance of the evidence. In re Annexation of 118.7 Acres, Miami Township v. Rita Caton (April 11, 1989), Montgomery App. No. 11444, unreported, aff'd 52 Ohio St. 3d 124. However, review of issues of law arising from those proceedings is more narrowly circumscribed. A court of common pleas should enjoin the annexation upon a showing of error in the proceedings of the Board of County Commissioners. R.C. 709.07CDX1). Because that is a determination of law, appellate courts may reverse if the error is manifest from the record and the appellant has been prejudiced thereby.
R.C. 709.03 establishes a procedure whereby those signing an annexation petition may withdraw their signatures and support, but within a very short period of time, i.e., twenty days. That period commences when notice of the petition is served on the clerk of the township affected. Service of the notice is the responsibility of the agent for the petitioners. Because of his interest in the success of the petition, it should be expected that notice will be served promptly, as it was in this casa
The General Assembly has provided in R.C. 709.03 a preferred method for public inspection of the petition. It must be filed in the office of the County Auditor and there kept available for that purpose. Responsibility for' filing the petition with the County Auditor is placed on the Clerk of the Board of Commissioners. While no time limit for the filing is set out in the statute, it was surely the intent of the General Assembly that-it be available for public inspection for a term sufficient to satisfy the means and purposes of the statute
*51The Supreme Court has recently held that public resources of the municipality to be benefit-ted may he employed in an annexation petition drive and proceeding. In re Annexation, supra. That view recognizes these efforts for what they are; contests between incorporated and unincorporated areas for the support of property owners, employing sometimes substantial inducements to leave one area and join another. For that reason, the procedures of the Board of County Commissioners may not unduly prejudice the opportunities of either party established by the General Assembly to obtain support for its view and position.
R.C. 709.03 provides for a twenty day period after service of notice on the township clerk during which signatures may be withdrawn. In view of the purposes of the statute; it is important that the period during which the petition is available for public inspection at the offices of the County Auditor be substantially coterminous with the period for withdrawal of signatures. Otherwise, those who wish to solicit withdrawal of names from the petition may be denied the opportunity to learn those names through the express provisions for inspection provided by the statute The Board may not so foreshorten the statutory period of time for public inspection of the petition that those desiring to persuade signers to withdraw are prejudiced in their ability to do so.
In this case, the twenty day inspection period was reduced by eight days, forty percent of the time required, by reason of the unexplained delay of the Board of County Commissioners in filing the petition for public inspection. Appellants were thus foreclosed from their statutory opportunity to identify and persuade those who signed the petition to withdraw their agreement to annex. The significance of that is clear from the record; the necessary number of withdrawals was at most eleven short of the number required, out of 234 landowners in the area concerned. The prejudice of the deprivation is manifest.
I believe that a requirement of public inspection must be construed strictly in favor of those for whose benefit it was devised. In this case, that group would certainly include the township residents who might use the information open to inspection to obtain the remedy against annexation provided in the statute The argument of Appellees that there is no relationship between the term of public inspection and the twenty day withdrawal period would, if followed, allow the public inspection term to commence even after the signature withdrawal period had concluded. That would defeat the entire purpose of the remedy provided in the legislation.
I find that the Appellants have shown error in the proceedings of the Board of County Commissioners, as a matter of law, and that the trial court erred in failing to grant the injunction requested. I would enter an order enjoining the annexation.