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ing to certain specifications to which we shall to the contrary, the city should not be relater refer. Whatever questions may now quired to assume a more onerous burden arise over the construction or validity of when manifestly intending to place it upon this part of the order, the company complied the company, unless in unmistakable lanwith its terms, although by compliance nei. guage, which we do not find; the order was ther it, nor the defendant is estopped to con- so framed. Com'rs on Inland Fisheries v. test its legality. Keefe v. Lexington & Bos- Holyoke Water Power Co., 104 Mass. 446, ton Street Railway Co., 185 Mass. 183, 185, 449, 6 Am. Rep. 247; Atty. Gen. v. Jamaica 70 N. E. 37. Under the most favorable con- Pond Aqueduct Co., 133 Mass. 361, 365; Com. struction the company was to assume the ex- v. Boston Terminal Co., 185 Mass. 281, 287, pense of paving where the streets were un- 70 N. E. 125. The position, however, is paved, either for the full width of two taken that if this construction is adopted streets, and between the track or tracks, and the obligation imposed either to pave, or to for a limited distance outside of the rails as maintain, is unenforceable as the board of to the remaining streets, and also to repave aldermen were not empowered to impose with the same material the streets already such restrictions, or to exact their performpaved, but the surface of which would have ance, and the most important part of the to be removed in the construction of its road- able and learned argument of counsel for bed. This section of the order, however, is the respondent is addressed to this question. more comprehensive for the opening words When the location was granted, Pub. St. C. of the second paragraph "shall lay and main- 113, was the law governing such grants. tain paying" indicate a broad purpose, and Under the provisions of section 7, the board to overcome their inclusiveness the defendant of aldermen and selectmen of towns were contends that by the particular description authorized to grant original locations to of streets, and the kind of pavement to be street railway companies subject to such “reused that follows, this general requirement strictions as they deemed the public interest is limited to paving only, and excludes the required. This word when used in conneccost of subsequent maintenance. If one of tion with a grant of an interest in real propthe objects to be accomplished was the origi-erty has been judicially considered as being nal paving, or repaving of these streets, their the legal equivalent of conditions, and eisubsequent maintenance would call also for ther term may be used to denote a limitation an expenditure by the city to keep them in upon the full and unqualified enjoyment of proper repair. That by reason of their use the right or
or estate granted. Skinner v. by the company they would be subjected to Shepard, 130 Mass. 180; Ayling v. Kramer, an increased servitude, which ordinarily 133 Mass. 12; Clapp v. Wilder, 176 Mass. would require more frequent or extensive re- 332, 57 N. E. 692, 50 L. R. A. 120. In St. pairs entailing corresponding expense well 1898, p. 748, c. 578, $ 26, which repealed Pub. may have been considered by the board when St. C. 113, § 7, this construction was apsettling the conditions of the grant.
parently adopted by the Legislature in secIf possible all the terms of a written in- tion 13 (page 743) as "restrictions” disapstrument are to be given effect, and this sen- pear, and the phrase "terms, conditions and tence may be considered as fairly indicative obligations” is substituted. But even if havof the final determination of the aldermen, ing this legal and statutory signification, the while the sentences which follow are to be inquiry whether the conditions could be legalviewed as in the nature of specifications de- ly incorporated with the order of location by fining the quality of the material, and the way of regulating the manner in which the extent of the work, and although in one in- franchise was to be enjoyed is not changed. stance repeated, to declare in connection with It was not until St. 1864, p. 155, c. 229, that each group of streets that when laid the the first general law concerning street rail. pavement should be kept in repair by the ways was enacted. The earlier acts grantcompany was unnecessary as this general ing charters of incorporation usually conprovision already had been sufficiently stat- tained provisions more or less general as to ed. Even if there was a seeming repugnancy any obligation of the corporation to keep between the principal and subordinate claus- the highways in which tracks were laid in es, the last would have to yield, because if repair. Of this class of requirements the given the effect for which the defendant con- act incorporating the Worcester Horse Railtends these clauses would defeat the plain road Company, to whose franchise the defendpurpose which had been already sufficiently ant has succeeded, is fairly typical. Sp. declared. Morrill & Whiton Construction Laws Mass. 1861, p. 462, C. 148. But St. Co. v. Boston, 186 Mass. 217, 220, 71 N. E. 1864, p. 159, c. 229, $ 18, defined and imposed 550. It also is a principle of construction such an obligation on all companies, and that if uncertain or ambiguous terms are since then
then as this system of conveni. found in a statute or written instrument con- ent transportation has developed, requiring ferring a public grant they are construed greater solidity of construction with hea vier strictly against, rather than in favor of the equipment, especially since the change in grantee, and unless by omission of all refer- motive power from horses to electricity, furence to the subject, or an explicit statement ther consideration has been given to the subject, and corresponding legislation from time which is not compulsory, the aldermen or to time has been passed. St. 1866, p. 269, selectmen in the exercise of a reasonable c. 286, § 1; St. 1871, p. 734, c. 381, $ 21; Pub. discretion and judgment could require under St. C. 113, § 32; St. 1898, p. 745, c. 578, § 15; section 7, as a condition, that a more exRev. Laws, c. 112, § 44. St. 1871, p. 730, tensive share in the expense of repairing c. 381, being a general act concerning street such ways when occupied by its tracks, than railway corporations codified previous stat- that required by section 32, should be borne utes. In section 14 (page 733) under the by the petitioning company. The entire resubordinate title of location of road, re
quirements of section 3 of the order accordenacted in Puí). St. c. 113, § 7, with a mar
ingly must be held as having been within the ginal designation of like import, is found
jurisdiction of the board of aldermen, and the origin of the right then expressly given therefore valid. . Newcomb v. Norfolk Westto grant a restricted or conditional location.
ern Street Railway Co., 179 Mass. 449, 61 N. The nature of such restrictions not having
E. 42; Selectmen of Gardner v. Templeton been specifically defined, the defendant ar
Street Railway Co., 184 Mass. 294, 68 N. E. gues that by implication an obligation to re
340; Hyde Park v. Old Colony Street Railplace, or to maintain in repair by any
way Co., 188 Mass. 180, 74 N. E. 352; Welmethod the surface of the street whether
lesley V. Boston & Worcester Street Railpaved or unpaved was not included, as this
way Co., 188 Mass. 230, 233, 74 N. E. 355. duty so far as deemed expedient was already
But it is further cogently argued that St. specified and imposed in section 21 of the original act and by Pub. St. c. 113, $ 32, and
1898, p. 737, c. 578, now Rev. Laws, c. 112,
§ 7, which repealed Pub. St. c. 113, § 7, did consequently the Legislature never intended
not to delegate authority to impose additional requirements. But the context of section 7
nal orders requiring the surface construction is extensive for the restrictions are to be
of streets, or of their subsequent maintesuch as “the interests of the public may re
nance, and which had been passed under the quire," and are unlimited in scope. The law
authority of previous statutes, and consemaking power well might say we have pre
quently since the passage of this act the scribed generally certain conditions as to the
order in this particular becomes a nullity. of
Upon reference to this statute it is expressly if
declared by section 11 (page 742) that "street granting a location the local authorities are railway companies
shall remain convinced that the latter section is inade- / subject to all legal obligations imposed in quate to equitably adjust and establish the original - grants,” and by section 13 (page extent of the burden of placing, and there- 743), reference again is made to the same after keeping, the surface of the streets in subject in the last paragraph which ratifies suitable repair owing to the increased wear and confirms all previous locations which to which they are subjected by the company, are given validity as if granted under the and that more burdensome restrictions are repealing act. . It also recognizes such orders required for the benefit of the city or town, as being full force and effect subject only to or of the traveling public, they may be im- the power of revocation under certain conposed by them. There is no inconsistency ditions conferred by section 13, upon boards under this construction between the two sec. of aldermen and selectmen. Rev. Laws, c. tions, which thus are brought into harmony, 112, § 7. Instead of destroying conditional for if section 7 is first in ordinal number, locations of this character they were explicit still it may be treated as supplementary to ly preserved. Hyde Park v. Old Colony , section 32 for the purpose of ascertaining Street Railway Co., ubi supra. the intention of the Legislature. Opinion of Under Rev. Laws, c. 112, § 100, this court the Justices, 22 Pick. 571, 573; Com. v. is given jurisdiction in equity to enforce the McCaughey, 9 Gray, 296, 297; Com. V. Bos- order on which the petitioners rely, and a ton Terminal Co., ubi supra.
case for equitable relief having been stated If the primary duty of maintaining the
the respondent's demurrer must be overruled, public ways within their limits in proper re
Newcomb v. Norfolk Western Street Railpair never shifts from a city or town, yet way Co., ubi supra. in granting a franchise the acceptance of Decree accordingly.
(167 Ind. 13)
below sustained a denurrer to the petitiori STATE ex rel. JETT et al. v. IVES et al. and alternative writ, and from the judgment (No. 20,806.)
which followed relators appeal. (Supreme Court of Indiana. June 19, 1906.)
It is the contention of appellees' counsel
that there is no law authorizing the calling of MUNICIPAL CORPORATIONS-OFFICERS-COUNCILMEN-ELECTION.
a special election to elect a municipal officer The general law concerning cities, enacted where there has been a failure to elect by in 1867, by section 12 (Burns' Ann. St. 1901, $
reason of a tie vote, and they further contend 3480) provides that, if two or more persons have an equal and highest number of votes for the
that it was the duty of the common council same office, the common council shall call an to await the expiration of the terms of the election to fill the office, and by section 16 councilmen in office and then to appoint a (Burns' Ann. St. 1901, § 3483) provides that
councilman to represent said ward. It is all "vacancies" in the office of councilman, etc., shall be filled by special election; but such pro
claimed that section 45 of the act concerning vision was changed by Act Feb. 26, 1891, § 1 municipal corporations, approved March 6, (Burns' Ann. St. 1901, $ 3484) providing that
1905 (Acts 1905, p. 212, c. 129), authorized "vacancies" in the office of councilmen shall be filled by appointment by the common council.
the making of an appointment in such cirThe general act concerning elections, approved cumstances. The portion of said section April 21, 1881 (Acts 1881, p. 482, c. 47, § 53; which appellees rely on reads as follows: Burns' Ann. St. 1901, $ 6286), provides that a special election shall be held whenever two or more
"In case of a vacancy in the office of councilpersons receive the highest and an equal number
man, from death, resignation, or other cause, of votes at any election. Two days before the the common council shall fill such vacancy by latter statute was approved, an act concerning elections became a law (Acts 1905, pp. 189,
a special meeting, to be held at a time not 191, c. 113, § 6), providing that, if two or more
less than ten or more than fifteen days after persons have the highest and an equal number such vacancy is discovered by such council; of votes for a city office, the city board shall of which special meeting notice shall be given declare that no person is elected, and shall certify such fact to the city clerk, who shall
by the clerk as herein required when the certify it to the tribunal whose duty it is to council is to fill a vacancy in the office of "supply vacancies in office or to issue a writ of mayor.” election." Section 43 of the act concerning cities and towns (Acts 1905, p. 240, c. 129) pro
Taking up. appellees' contentions in their vides that all city elections shall be held in con- order, we proceed to examine the legislation formity with the general election laws. Const. which was in force at the time of the adopart. 15, § 3, declares that whenever it is pro
tion of said act. It was provided by section vided in any law that any officer shall hold his office for any given term it shall be construed | 12 of the general law concerning cities, which to mean that he shall hold his office until his was passed in 1867 (section 3480, Burns' successor is elected or qualified. Act March 6,
Ann. St. 1901), that "should two or more 1905 (Acts 1905, p. 242, c. 129), provides that, in case of a vacancy in the office of councilman persons have an equal and the highest numthrough death, resignation, or other cause, the ber of votes for the same office, such board of council shall fill such vacancy by a special meet- inspectors shall certify the fact to the trusing. Held, that the latter statute, in making provision for the filling of vacancies, did not
tees or common council, as the case may be, show an intent to treat a failure to elect owing who shall immediately give notice, as in other to a tie vote as a vacancy, but in such case a elections, for a new election, specifying the special election should be held.
office to be filled thereby and the ward, if a Appeal from Circuit Court, Carroll County; councilman, in which the poll is to be openT. F. Palmer, Judge.
ed.” It was provided by section 16 of said Mandamus by the state, at the relation of act (section 3483, Burns' Ann. St. 1901) that William L. Jett and others, to compel George
all vacancies in the office of mayor, city R. Ives and others, as councilmen of the judge, clerk, or councilman should be filled by city of Delphi to call a special election to special election. The latter provision was elect a councilman. From a judgment sus- changed, as to vacancies in the office of maytaining a demurrer to the petition and alter- or, clerk and councilman, by section 1 of the native writ, relators appeal. Reversed.
act of February 26, 1891 (Acts 1891, p. 33, John H. Gould, for appellants. W. A.
c. 31; section 3484, Burns' Ann. St. 1901); Roach and R. C. Pollard, for appellees. but, as we shall show hereafter, in discussing
the meaning of the term "vacancy" as apGILLETT, J. November 7, 1905, relator
plied to a public office, the statute last menJett and one Julius were opposing candidates
tioned in no wise affected the provision of for the office of councilman in the First Ward
section 12 above quoted. On the contrary, of the city of Delphi. They were the only
said provision was in full force when said act candidates for said office, and each received of 1905, was passed. 64 votes. The board of canvassers declared, Turning to the general act concerning elecand certified to the city clerk, that no person
tions, approved April 21, 1881 (Acts 1881, p. was elected to said office, and said clerk, in 482, c. 47), which also applies to cities, we turn, certified said fact to the common coun- find it provided by section 53, p. 494, thereof cil. Relators, voters in said ward, after a (section 6286, Burns' Ann. St. 1901) that: demand and a refusal, brought this action "A special election shall be held in the to compel the calling of a special election to following cases:
** * Third. Whenever elect a councilman in said ward. The court two or more persons receiving votes at any
election shall have the highest and an equal within its purview should be understood as number of votes for the same office." This act repealing all acts in relation to all cases also was in force at the time of the adoption which are provided for by the repealing act, of the act of 1905, concerning municipal cor- and that the provisions of no act are thereby porations. In addition, it is to be observed repealed in relation to cases not provided for that two days before the last-mentioned act by it.” And see, also, 7 Words and Phrases, was approved, a further act concerning elec- tit. "Purview"; 1 Lewis' Suth. Const. § 246. tions became a law, wherein it was provided We have been unable to find any mention (Acts 1905, pp. 189, 191, c. 113, § 6) that "if of the subject of tie votes in the act of March two or more persons shall have the highest | 6, 1905, aside from a provision which is found and equal number of votes for a single office in section 15; but that section relates to to be filled by the voters of such county or towns. It therefore becomes material to incity, such county or city board shall declare quire whether the provision of section 45 that no person is elected to fill such office, which we have above quoted was designed and shall certify the same in the statement to prescribe the rule of action for the filing above provided and when filed the clerk shall of the office. The provision referred to has certify the fact to the tribunal whose duty it to do with a "vacancy” in the office of counis to supply vacancies in such office, or to is- cilman. An election which is held in adsue writ of election to fill the same as the vance of the expiration of the term of an case may require." While it may be granted incumbent of an office is not an election to that the Legislature was in error in assuming fill a vacancy. 1 Dillon, Mun. Corp. (4th that there was any city office which could be Ed.) § 222. Assuming, without deciding, filled by appointment in case of a tie vote, that the two councilmen representing the yet it is perfectly clear that at the time of First Ward of the city of Delphi would not the enactment of said section, both under the hold over until a councilman should be electmunicipal act of 1867, and the general election ed and qualified who should alone be entitled law of 1881, it was the imperative duty of a to represent said ward, or, in other words, ascommon council to call a special election to suming that the present law created a new elect a member thereof where there had been office, and that the former offices of members a failure to elect by reason of a tie vote. of the common council from said ward would So that when section 6 of the act of March 4, expire by limitation, so that an efflux of time 1905, went into force, a failure to elect, by would eventually work a vacancy, yet the reason of a tie vote, created a situation in fact that such a condition of affairs as this which, to paraphrase the language of said might occur at the first election held under section, the case required the issuing of a the new law is not persuasive that it was the writ of election. We do not, however, attach intention of the lawmakers to provide for so much importance to said section as creat- the event of a tie vote at the first election by ing a substantive duty as we do to the fact authorizing an appointment to fill vacancies, that, as a statute which gives affirmative rec- if under the act the effect of tie votes hereognition to the existence of earlier provisions after occurring would not be to cause concerning the calling of special elections vacancy by the expiration of the term of in such cases, and which in effect provides for the incumbent of the office. the continued operation of such laws, it is The language of section 3 of article 15 of to be reckoned with in determining whether the Constitution of this state is very broad. all traces of the prior legislation were oblit- It ordains that, "whenever it is provided in erated by the act concerning municipal corpo- this Constitution, or in any law which may rations which became a law two days there- be hereafter passed, that any officer, other after. The language of the repealing clause than a member of the General Assembly, of said last-mentioned act, so far as pertinent shall hold his office for any given term, the to this case, is as follows: "All former laws same shall be construed to mean that such within the purview of this act, except laws officer shall hold his office for such term and not inconsistent herewith and enacted at the until his successor shall have been elected present session of the General Assembly, and qualified.” (Our italics.) While it is setare hereby repealed.” Dealing with said tled by the decisions of this court that some repealing clause, and not with the general of the provisions of the Constitution relate doctrine of repeals by implication, we think solely to the state government, yet under lanit may be said that said act did not necessari- guage as broad as this, referring to any ofly repeal all prior legislation that may have ficer who holds office under any law passed had some relation to cities and towns. In after the adoption of the Constitution, it is State v. Reynolds, 108 Ind. 353, 388, 9 N. E. clear that the reference is broad enough to 287, this court quoted with apparent approv- include municipal officers, and it is our opinal the following language, found in Payne v. ion that the provision does extend to them. Conner, 3 Bibb (Ky.) 180: "The meaning usu- The section in question has been applied to ally attached to this word 'purview' by statutory, elective officers (State ex rel. v. writers on law seems to be the enacting part Berg, 50 Ind. 496; State ex rel. Reese v. of a statute, in contradistinction to the pre- Bogard, 123 Ind. 480, 27 X. E. 1113; State amble; and we think the provision of the ex rel. Harrison v. Menaugh, 151 Ind. 261, 51 act repealing all acts or parts of acts coming N. E. 117, 357, 43 L. R. A. 408, 418); to an officer elected by the General Assembly, rel. Carson v. Harrison, supra; Koerner v. (State ex rel. Carson v. Harrison, 113 Ind. State ex rel., 148 Ind. 158, 47 N. E. 323, 434, 16 N. E. 384, 3 Am. St. Rep. 663) ; and State ex rel. Harrison v. Menaugh, 151 Ind. to a member of the board of trustees of a 260, 51 N. E. 117, 357, 43 L. R. A. 408, 418. school town (Koerner v. State ex rel., 148 The effect of the constitutional provision is Ind. 158, 47 N. E. 323). It was declared in to add "an additional, contingent and defeathe case last cited that "it is settled that all sible term, to the original fixed term, and officers, except members of the Legislature, excludes the possibility of a vacancy, and hold their offices under the Constitution for consequently, the power of appointment, exthe term for which they are elected, and un- cept in case of death, resignation, ineligibility, til their successors are elected and qualified.” or the like." State ex rel. Carson v. HarriIt was said in State ex rel. Carson v. Har- som, supra. rison, supra, that the policy of such provis- The act of March 6, 1905, was designed ions “is to prevent the happening of vacan. as a more or less permanent expression of cies in any office, except by death, resigna- the will of the Legislature, and assuming, as tion, removal, and the like. They rest upon we must do, that it was cognizant of the the assumption that the wiser and more pru
fundamental law in the enactment of the dent course is, in case the electoral body statute, it becomes apparent that in making fails to discharge its functions, to authorize provision for the filling of vacancies in the the incumbent to hold over until the succeed- office of councilman there was no intent to ing election rather than that a vacancy
treat the failure to elect as resulting in a should occur to be filled by the appointing vacancy. State ex rel. Reese V. Bogard, power.”
128 Ind. 480, 27 N. E. 1113. This being true, The Constitution of Missouri contains a we should be loath to conclude, in the absection which reads as follows: "In the ab- sence of language requiring it, that it was sence of any contrary provision, all officers the purpose in the enactment of said statute now or hereafter elected or appointed, sub- to blot out all provision for the filling by ject to the right of resignation, shall hold election of an office elective by the people office during their official terms, and until where the regular election had resulted in a their successors shall be duly elected or ap- tie vote. Although it is probable that the act pointed and qualified.” In State ex rel. in question operates to repeal by implication Crow v. Lund, 167 Mo. 228, 239, 66 S. W. many prior provisions of statute relative to 1062, 67 S. W. 572, the Supreme Court of cities and towns, yet we cannot consent to the Missouri said of this section: “Plaintiff con- view that it is to be treated as a thing apart tends that this provision of the Constitution from all the legislation of the state. In does not apply to municipalities, but we are Humphries v. Davis, 100 Ind. 274, 50 Am. unable to concur in this view for the follow- Rep. 788, it was said: "A statute is not to ing reasons: First, it is broad and compre
be construed as if it stood solitary and alone, hensive enough to include all officers, wheth- complete, and perfect in itself, and isolated er they be state, county, township, or munic- from all other laws. It is not to be expectipal, and there is nothing in it which is ed that a statute which takes its place in a indicative of anything to the contrary, or general system of jurisprudence shall be so which leaves any doubt as to its true mean. perfect as to require no support from the ing. Second, if there existed a doubt as to rules and statutes of the system of which it whether or not it embraced municipalities, becomes a part, or so clear in all its terms that doubt can be dispelled when that sec- as to furnish in itself all the light needed tion is taken into consideration with the vari. for its construction. It is proper to look to ous provisions of the Constitution which in other statutes, to the rules of the common some way have reference to municipalities.” law to the sources from which the statute was In the course of the opinion from which we derived, to the general principles of equity, have just quoted, the court referred to the to the object of the statute, and to the condiholding in State ex rel. Carson V. Harri. tion of affairs when the statute was adopted. son, 113 Ind. 434, 16 N. E. 384, 3 Am. St.
Statutes are to be so construed as Rep. 663, and, in that connection, after set- to make the law one uniform system, not a ting out the provision of the Indiana Consti- collection of diverse and disjointed frag. tution which we are considering, said: “It ments.” is perfectly apparent from that provision of The presumption against a repeal by imthe Constitution that there was no escape plication is strong, and where two acts, which from the conclusion reached by the court, apparently supplement each other, are passed that is, that all officers in that state hold at the same session of the Legislature, they over after the expiration of their terms un. are to be treated, in the absence of any intil their successors are elected or appointed, dication to the contrary, as if they together as the case may be, and are qualified." Al- constituted but one law. Potter's Dwarris, ter the expiration of the term fixed by the Statutes, 189. But in this case there ap. General Assembly, the tenure or title of the pears an affirmative intent in the municipal officer is not under or by virtue of legislative act to uphold all consistent statutes passed authority, but by the continuing and superi- at the same session, and this would seem, in or authority of the Constitution, State ex view of section 6 of the election law of 1995