ing to certain specifications to which we shall later refer. Whatever questions may now arise over the construction or validity of this part of the order, the company complied with its terms, although by compliance neither it, nor the defendant is estopped to contest its legality. Keefe v. Lexington & Boston Street Railway Co., 185 Mass. 183, 185, 70 N. E. 37. Under the most favorable construction the company was to assume the expense of paving where the streets were unpaved, either for the full width of two streets, and between the track or tracks, and for a limited distance outside of the rails as to the remaining streets, and also to repave with the same material the streets already paved, but the surface of which would have to be removed in the construction of its roadbed. This section of the order, however, is more comprehensive for the opening words of the second paragraph "shall lay and maintain paving" indicate a broad purpose, and to overcome their inclusiveness the defendant contends that by the particular description of streets, and the kind of pavement to be used that follows, this general requirement is limited to paving only, and excludes the cost of subsequent maintenance. If one of the objects to be accomplished was the original paving, or repaving of these streets, their subsequent maintenance would call also for an expenditure by the city to keep them in proper repair. That by reason of their use by the company they would be subjected to

increased servitude, which ordinarily would require more frequent or extensive repairs entailing corresponding expense well may have been considered by the board when settling the conditions of the grant.

If possible all the terms of a written instrument are to be given effect, and this sentence may be considered as fairly indicative of the final determination of the aldermen, while the sentences which follow are to be viewed as in the nature of specifications defining the quality of the material, and the extent of the work, and although in one instance repeated, to declare in connection with each group of streets that when laid the pavement should be kept in repair by the company was unnecessary as this general provision already had been sufficiently stated. Even if there was a seeming repugnancy between the principal and subordinate clauses, the last would have to yield, because if given the effect for which the defendant contends these clauses would defeat the plain purpose which had been already sufficiently declared. Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217, 220, 71 N. E. 550. It also is a principle of construction that if uncertain or ambiguous terms are found in a statute or written instrument conferring a public grant they are construed strictly against, rather than in favor of the grantee, and unless by omission of all reference to the subject, or an explicit statement

to the contrary, the city should not be required to assume a more onerous burden when manifestly intending to place it upon the company, unless in unmistakable language, which we do not find, the order was so framed. Com'rs on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 449, 6 Am. Rep. 247; Atty. Gen. v. Jamaica Pond Aqueduct Co., 133 Mass. 361, 365; Com. v. Boston Terminal Co., 185 Mass. 281, 287, 70 N. E. 125. The position, however, is taken that if this construction is adopted the obligation imposed either to pave, or to maintain, is unenforceable as the board of aldermen were not empowered to impose such restrictions, or to exact their performance, and the most important part of the able and learned argument of counsel for the respondent is addressed to this question. When the location was granted, Pub. St. c. 113, was the law governing such grants. Under the provisions of section 7, the board of aldermen and selectmen of towns were authorized to grant original locations to street railway companies subject to such "restrictions" as they deemed the public interest required. This word when used in connection with a grant of an interest in real property has been judicially considered as being the legal equivalent of conditions, and either term may be used to denote a limitation upon the full and unqualified enjoyment of the right or or estate granted. Skinner v. Shepard, 130 Mass. 180; Ayling v. Kramer, 133 Mass. 12; Clapp v. Wilder, 176 Mass. 332, 57 N. E. 692, 50 L. R. A. 120. In St. 1898, p. 748, c. 578, § 26, which repealed Pub. St. c. 113, § 7, this construction was apparently adopted by the Legislature in section 13 (page 743) as "restrictions" disappear, and the phrase "terms, conditions and obligations" is substituted. But even if having this legal and statutory signification, the inquiry whether the conditions could be legally incorporated with the order of location by way of regulating the manner in which the franchise was to be enjoyed is not changed. It was not until St. 1864, p. 155, c. 229, that the first general law concerning street railways was enacted. The earlier acts granting charters of incorporation usually contained provisions more or less general as to any obligation of the corporation to keep the highways in which tracks were laid in repair. Of this class of requirements the act incorporating the Worcester Horse Railroad Company, to whose franchise the defendant has succeeded, is fairly typical. Sp. Laws Mass. 1861, p. 462, c. 148. But St. 1864, p. 159, c. 229, § 18, defined and imposed such an obligation on all companies, and since then as this system of convenient transportation has developed, requiring greater solidity of construction with heavier equipment, especially since the change in motive power from horses to electricity, further consideration has been given to the sub

ject, and corresponding legislation from time to time has been passed. St. 1866, p. 269, c. 286, § 1; St. 1871, p. 734, c. 381, § 21; Pub. St. c. 113, § 32; St. 1898, p. 745, c. 578, § 15; Rev. Laws, c. 112, § 44. St. 1871, p. 730, c. 381, being a general act concerning street railway corporations codified previous statutes. In section 14 (page 733) under the subordinate title of location of road, reenacted in Pub. St. c. 113, § 7, with a marginal designation of like import, is found the origin of the right then expressly given to grant a restricted or conditional location. The nature of such restrictions not having been specifically defined, the defendant argues that by implication an obligation to replace, or to maintain in repair by any method the surface of the street whether paved or unpaved was not included, as this duty so far as deemed expedient was already specified and imposed in section 21 of the original act and by Pub. St. c. 113, § 32, and consequently the Legislature never intended to delegate authority to impose additional requirements. But the context of section 7 is extensive for the restrictions are to be such as "the interests of the public may require," and are unlimited in scope. The lawmaking power well might say we have prescribed generally certain conditions as to the repair of the public ways with which street railway companies must comply, but if when granting a location the local authorities are convinced that the latter section is inadequate to equitably adjust and establish the extent of the burden of placing, and thereafter keeping, the surface of the streets in suitable repair owing to the increased wear to which they are subjected by the company, and that more burdensome restrictions are required for the benefit of the city or town, or of the traveling public, they may be imposed by them. There is no inconsistency under this construction between the two sec. tions, which thus are brought into harmony, for if section 7 is first in ordinal number, still it may be treated as supplementary to section 32 for the purpose of ascertaining the intention of the Legislature. Opinion of the Justices, 22 Pick. 571, 573; Com. v. McCaughey, 9 Gray, 296, 297; Com. v. Boston Terminal Co., ubi supra.

If the primary duty of maintaining the public ways within their limits in proper repair never shifts from a city or town, yet in granting a franchise the acceptance of

which is not compulsory, the aldermen or selectmen in the exercise of a reasonable discretion and judgment could require under section 7, as a condition, that a more extensive share in the expense of repairing such ways when occupied by its tracks, than that required by section 32, should be borne by the petitioning company. The entire requirements of section 3 of the order accordingly must be held as having been within the jurisdiction of the board of aldermen, and therefore valid. Newcomb v. Norfolk Western Street Railway Co., 179 Mass. 449, 61 N. E. 42; Selectmen of Gardner v. Templeton Street Railway Co., 184 Mass. 294, 68 N. E. 340; Hyde Park v. Old Colony Street Railway Co., 188 Mass. 180, 74 N. E. 352; Wellesley v. Boston & Worcester Street Railway Co., 188 Mass. 250, 253, 74 N. E. 355. But it is further cogently argued that St. 1898, p. 737, c. 578, now Rev. Laws, c. 112, § 7, which repealed Pub. St. c. 113, § 7, did not recognize or ratify the validity of original orders requiring the surface construction of streets, or of their subsequent maintenance, and which had been passed under the authority of previous statutes, and consequently since the passage of this act the order in this particular becomes a nullity. Upon reference to this statute it is expressly declared by section 11 (page 742) that "street railway companies shall remain subject to all legal obligations imposed in original - grants," and by section 13 (page 743), reference again is made to the same subject in the last paragraph which ratifies and confirms all previous locations which are given validity as if granted under the repealing act. It also recognizes such orders as being full force and effect subject only to the power of revocation under certain conditions conferred by section 13, upon boards of aldermen and selectmen. Rev. Laws, c. 112, § 7. Instead of destroying conditional locations of this character they were explicitly preserved. Hyde Park v. Old Colony Street Railway Co., ubi supra.

Under Rev. Laws, c. 112, § 100, this court is given jurisdiction in equity to enforce the order on which the petitioners rely, and a case for equitable relief having been stated the respondent's demurrer must be overruled. Newcomb v. Norfolk Western Street Railway Co., ubi supra.

Decree accordingly.

(167 Ind. 13) STATE ex rel. JETT et al. v. IVES et al. (No. 20,806.)

(Supreme Court of Indiana. June 19, 1906.) MUNICIPAL CORPORATIONS-OFFICERS-COUN

CILMEN-ELECTION.

The general law concerning cities, enacted in 1867, by section 12 (Burns' Ann. St. 1901, § 3480) provides that, if two or more persons have an equal and highest number of votes for the same office, the common council shall call an election to fill the office, and by section 16 (Burns' Ann. St. 1901, § 3483) provides that all "vacancies" in the office of councilman, etc., shall be filled by special election; but such provision was changed by Act Feb. 26, 1891, § 1 (Burns' Ann. St. 1901, § 3484) providing that "vacancies" in the office of councilmen shall be filled by appointment by the common council. The general act concerning elections, approved April 21, 1881 (Acts 1881, p. 482, c. 47, § 53; Burns' Ann. St. 1901, § 6286), provides that a special election shall be held whenever two or more persons receive the highest and an equal number of votes at any election. Two days before the latter statute was approved, an act concerning elections became a law (Acts 1905, pp. 189, 191, c. 113, § 6), providing that, if two or more persons have the highest and an equal number of votes for a city office, the city board shall declare that no person is elected, and shall certify such fact to the city clerk, who shall certify it to the tribunal whose duty it is to "supply vacancies in office or to issue a writ of election." Section 43 of the act concerning cities and towns (Acts 1905, p. 240, c. 129) provides that all city elections shall be held in conformity with the general election laws. Const. art. 15, § 3, declares that whenever it is provided in any law that any officer shall hold his office for any given term it shall be construed to mean that he shall hold his office until his successor is elected or qualified. Act March 6, 1905 (Acts 1905, p. 242, c. 129), provides that, in case of a vacancy in the office of councilman through death, resignation, or other cause, the council shall fill such vacancy by a special meeting. Held, that the latter statute, in making provision for the filling of vacancies, did not show an intent to treat a failure to elect owing to a tie vote as a vacancy, but in such case a special election should be held.

below sustained a demurrer to the petition and alternative writ, and from the judgment which followed relators appeal.

It is the contention of appellees' counsel that there is no law authorizing the calling of a special election to elect a municipal officer where there has been a failure to elect by reason of a tie vote, and they further contend that it was the duty of the common council to await the expiration of the terms of the councilmen in office and then to appoint a councilman to represent said ward. It is claimed that section 45 of the act concerning municipal corporations, approved March 6, 1905 (Acts 1905, p. 242, c. 129), authorized the making of an appointment in such circumstances. The portion of said section which appellees rely on reads as follows: "In case of a vacancy in the office of councilman, from death, resignation, or other cause, the common council shall fill such vacancy by a special meeting, to be held at a time not less than ten or more than fifteen days after such vacancy is discovered by such council; of which special meeting notice shall be given by the clerk as herein required when the council is to fill a vacancy in the office of mayor."

Taking up appellees' contentions in their order, we proceed to examine the legislation which was in force at the time of the adoption of said act. It was provided by section 12 of the general law concerning cities, which was passed in 1867 (section 3480, Burns' Ann. St. 1901), that "should two or more persons have an equal and the highest number of votes for the same office, such board of inspectors shall certify the fact to the trustees or common council, as the case may be, who shall immediately give notice, as in other elections, for a new election, specifying the office to be filled thereby and the ward, if a

Mandamus by the state, at the relation of William L. Jett and others, to compel George R. Ives and others, as councilmen of the city of Delphi to call a special election to elect a councilman. From a judgment sustaining a demurrer to the petition and alternative writ, relators appeal. Reversed.

John H. Gould, for appellants. W. A. Roach and R. C. Pollard, for appellees.

GILLETT,. J. November 7, 1905, relator Jett and one Julius were opposing candidates for the office of councilman in the First Ward of the city of Delphi. They were the only candidates for said office, and each received 64 votes. The board of canvassers declared, and certified to the city clerk, that no person was elected to said office, and said clerk, in turn, certified said fact to the common council. Relators, voters in said ward, after a demand and a refusal, brought this action to compel the calling of a special election to elect a councilman in said ward. The court 78 N.E.-15

ed." It was provided by section 16 of said act (section 3483, Burns' Ann. St. 1901) that all vacancies in the office of mayor, city judge, clerk, or councilman should be filled by special election. The latter provision was changed, as to vacancies in the office of mayor, clerk and councilman, by section 1 of the act of February 26, 1891 (Acts 1891, p. 33, c. 31; section 3484, Burns' Ann. St. 1901); but, as we shall show hereafter, in discussing the meaning of the term "vacancy" as applied to a public office, the statute last mentioned in no wise affected the provision of section 12 above quoted. On the contrary, said provision was in full force when said act of 1905, was passed.

Turning to the general act concerning elections, approved April 21, 1881 (Acts 1881, p. 482, c. 47), which also applies to cities, we find it provided by section 53, p. 494, thereof (section 6286, Burns' Ann. St. 1901) that: "A special election shall be held in the following cases: Third. Whenever two or more persons receiving votes at any

**

election shall have the highest and an equal number of votes for the same office." This act also was in force at the time of the adoption of the act of 1905, concerning municipal corporations. In addition, it is to be observed that two days before the last-mentioned act was approved, a further act concerning elections became a law, wherein it was provided (Acts 1905, pp. 189, 191, c. 113, § 6) that "if two or more persons shall have the highest and equal number of votes for a single office to be filled by the voters of such county or city, such county or city board shall declare that no person is elected to fill such office, and shall certify the same in the statement above provided and when filed the clerk shall certify the fact to the tribunal whose duty it is to supply vacancies in such office, or to issue writ of election to fill the same as the case may require." While it may be granted that the Legislature was in error in assuming that there was any city office which could be filled by appointment in case of a tie vote, yet it is perfectly clear that at the time of the enactment of said section, both under the municipal act of 1867, and the general election law of 1881, it was the imperative duty of a common council to call a special election to elect a member thereof where there had been a failure to elect by reason of a tie vote. So that when section 6 of the act of March 4, 1905, went into force, a failure to elèct, by reason of a tie vote, created a situation in which, to paraphrase the language of said section, the case required the issuing of a writ of election. We do not, however, attach so much importance to said section as creating a substantive duty as we do to the fact that, as a statute which gives affirmative recognition to the existence of earlier provisions concerning the calling of special elections in such cases, and which in effect provides for the continued operation of such laws, it is to be reckoned with in determining whether all traces of the prior legislation were obliterated by the act concerning municipal corporations which became a law two days thereafter. The language of the repealing clause of said last-mentioned act, so far as pertinent to this case, is as follows: "All former laws within the purview of this act, except laws not inconsistent herewith and enacted at the present session of the General Assembly, are hereby repealed." Dealing with said repealing clause, and not with the general doctrine of repeals by implication, we think it may be said that said act did not necessarily repeal all prior legislation that may have had some relation to cities and towns. In State v. Reynolds, 108 Ind. 353, 388, 9 N. E. 287, this court quoted with apparent approval the following language, found in Payne v. Conner, 3 Bibb (Ky.) 180: "The meaning usually attached to this word 'purview' by writers on law seems to be the enacting part of a statute, in contradistinction to the preamble; and we think the provision of the act repealing all acts or parts of acts coming

within its purview should be understood as repealing all acts in relation to all cases which are provided for by the repealing act, and that the provisions of no act are thereby repealed in relation to cases not provided for by it." And see, also, 7 Words and Phrases, tit. "Purview"; 1 Lewis' Suth. Const. § 246.

We have been unable to find any mention of the subject of tie votes in the act of March 6, 1905, aside from a provision which is found in section 15; but that section relates to towns. It therefore becomes material to inquire whether the provision of section 45 which we have above quoted was designed to prescribe the rule of action for the filing of the office. The provision referred to has to do with a "vacancy" in the office of councilman. An election which is held in advance of the expiration of the term of an incumbent of an office is not an election to fill a vacancy. 1 Dillon, Mun. Corp. (4th Ed.) § 222. Assuming, without deciding, that the two councilmen representing the First Ward of the city of Delphi would not hold over until a councilman should be elected and qualified who should alone be entitled to represent said ward, or, in other words, assuming that the present law created a new office, and that the former offices of members of the common council from said ward would expire by limitation, so that an efflux of time would eventually work a vacancy, yet the fact that such a condition of affairs as this might occur at the first election held under the new law is not persuasive that it was the intention of the lawmakers to provide for the event of a tie vote at the first election by authorizing an appointment to fill vacancies, if under the act the effect of tie votes hereafter occurring would not be to cause a vacancy by the expiration of the term of the incumbent of the office.

The language of section 3 of article 15 of the Constitution of this state is very broad. It ordains that, "whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified." (Our italics.) While it is settled by the decisions of this court that some of the provisions of the Constitution relate solely to the state government, yet under language as broad as this, referring to any of ficer who holds office under any law passed after the adoption of the Constitution, it is clear that the reference is broad enough to include municipal officers, and it is our opinion that the provision does extend to them. The section in question has been applied to statutory, elective officers (State ex rel. v. Berg, 50 Ind. 496; State ex rel. Reese v. Bogard, 128 Ind. 480, 27 N. E. 1113; State ex rel. Harrison v. Menaugh, 151 Ind. 261, 51 N. E. 117, 357, 43 L. R. A. 408, 418); to

an officer elected by the General Assembly (State ex rel. Carson v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663); and to a member of the board of trustees of a school town (Koerner v. State ex rel., 148 Ind. 158, 47 N. E. 323). It was declared in the case last cited that "it is' settled that all officers, except members of the Legislature, hold their offices under the Constitution for the term for which they are elected, and until their successors are elected and qualified." It was said in State ex rel. Carson v. Harrison, supra, that the policy of such provisions "is to prevent the happening of vacancies in any office, except by death, resignation, removal, and the like. They rest upon the assumption that the wiser and more prudent course is, in case the electoral body falls to discharge its functions, to authorize the incumbent to hold over until the succeeding election rather than that a vacancy should occur to be filled by the appointing power."

The Constitution of Missouri contains a section which reads as follows: "In the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified." In State ex rel. Crow v. Lund, 167 Mo. 228, 239, 66 S. W. 1062, 67 S. W. 572, the Supreme Court of Missouri said of this section: "Plaintiff contends that this provision of the Constitution does not apply to municipalities, but we are unable to concur in this view for the following reasons: First, it is broad and comprehensive enough to include all officers, whether they be state, county, township, or municipal, and there is nothing in it which is indicative of anything to the contrary, or which leaves any doubt as to its true meaning. Second, if there existed a doubt as to whether or not it embraced municipalities, that doubt can be dispelled when that sec tion is taken into consideration with the various provisions of the Constitution which in some way have reference to municipalities." In the course of the opinion from which we have just quoted, the court referred to the holding in State ex rel. Carson v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663, and, in that connection, after setting out the provision of the Indiana Constitution which we are considering, said: "It is perfectly apparent from that provision of the Constitution that there was no escape from the conclusion reached by the court, that is, that all officers in that state hold over after the expiration of their terms until their successors are elected or appointed, as the case may be, and are qualified." After the expiration of the term fixed by the General Assembly, the tenure or title of the officer is not under or by virtue of legislative authority, but by the continuing and superior authority of the Constitution. State ex

rel. Carson v. Harrison, supra; Koerner v. State ex rel., 148 Ind. 158, 47 N. E. 323, State ex rel. Harrison v. Menaugh, 151 Ind. 260, 51 N. E. 117, 357, 43 L. R. A. 408, 418. The effect of the constitutional provision is to add "an additional, contingent and defeasible term, to the original fixed term, and excludes the possibility of a vacancy, and consequently, the power of appointment, except in case of death, resignation, ineligibility, or the like." State ex rel. Carson v. Harrison, supra.

The act of March 6, 1905, was designed as a more or less permanent expression of the will of the Legislature, and assuming, as we must do, that it was cognizant of the fundamental law in the enactment of the statute, it becomes apparent that in making provision for the filling of vacancies in the office of councilman there was no intent to treat the failure to elect as resulting in a vacancy. State ex rel. Reese v. Bogard, 128 Ind. 480, 27 N. E. 1113. This being true, we should be loath to conclude, in the absence of language requiring it, that it was the purpose in the enactment of said statute to blot out all provision for the filling by election of an office elective by the people where the regular election had resulted in a tie vote. Although it is probable that the act in question operates to repeal by implication many prior provisions of statute relative to cities and towns, yet we cannot consent to the view that it is to be treated as a thing apart from all the legislation of the state. In Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, it was said: "A statute is not to be construed as if it stood solitary and alone, complete, and perfect in itself, and isolated from all other laws. It is not to be expected that a statute which takes its place in a general system of jurisprudence shall be so perfect as to require no support from the rules and statutes of the system of which it becomes a part, or so clear in all its terms as to furnish in itself all the light needed for its construction. It is proper to look to other statutes, to the rules of the common law to the sources from which the statute was derived, to the general principles of equity, to the object of the statute, and to the condition of affairs when the statute was adopted.

Statutes are to be so construed as to make the law one uniform system, not a collection of diverse and disjointed fragments."

The presumption against a repeal by implication is strong, and where two acts, which apparently supplement each other, are passed at the same session of the Legislature, they are to be treated, in the absence of any indication to the contrary, as if they together constituted but one law. Potter's Dwarris, Statutes, 189. But in this case there ap pears an affirmative intent in the municipal act to uphold all consistent statutes passed at the same session, and this would seem, in view of section 6 of the election law of 1905