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doing. That the injuries and damages plaintiff and those whom he represents will sustain are irreparable, are not assessable in damages, and that redress for the grievances will engender a multiplicity of suits. Thereupon it was adjudged and decreed by said court of common pleas that the injunction theretofore granted in said action be and the same was made perpetual. On error, this judgment of the court of common pleas was affirmed. This court is now asked to reverse the judgments of the court of common pleas and circuit court, and upon the above record to render such judgment as it is claimed these courts should have rendered.

Anderson, Bowman & Anderson, for plaintiffs in error. Martin B. Trainor, for defendants in error.

CREW, J. (after stating the facts). Numerous questions were raised on the trial of this cause in the court of common pleas, two only of which, upon this record, are properly before us for review. These are: (1) Did the county commissioners of Darke county, Ohio, by presentation to them of the petition for the improvement of the road in controversy, acquire jurisdiction to order said improvement? (2) At the time of filing their petition for injunction in this case had the defendants in error an adequate remedy at law? These propositions we shall consider briefly in the order named. It is conceded by counsel in this case that unless the petition presented to the county commissioners was signed by the requisite number of qualified landowners, said commissioners were without authority or jurisdiction to entertain said petition, or to order the making of said improvement, and that whether or not said. petition was so signed depends upon and is to be determined by, the construction or interpretation proper to be given the words "resident owner" as employed in section 1 of the act of the General Assembly passed April 4, 1900 (94 Ohio Laws, p. 96), entitled "An act to provide for the improvement of public roads," which section provides as follows: "Section 1. That when a majority of the resident owners of any real estate lying and being within one mile of any public road shall present a petition to the county commissioners of any county in the state of Ohio, asking for [the] grading and improving of any such road, the board of county commissioners shall go upon the line of such road described in such petition, and if in the opinion of the county commissioners the public utility requires such road to be graded and improved, the commissioners shall determine whether the improvement shall be constructed of stone, gravel, or brick, any or all, and they shall determine what part or parts of uch road improvement shall be of stone, gravel, or brick, any or all, and shall enter their determination on their journal, and at the same time appoint an engineer to go upon

the line of such road and make such markings, gradient lines, plat and profiles and estimates as such commissioners shall order in their entry on their journal, and order that the improvement be made; and at the same time said commissioners shall order that a portion of the cost and expense thereof, which shall not be less than one-half, nor more than two-thirds, of the total cost and expense thereof, shall be paid out of the proceeds of any levy or levies upon the grand duplicate of the county assessed against (which) the taxable property of any township or townships in which such road may be in whole or in part, as authorized by section 5 of this act. And shall also order that the balance of said cost and expense be assessed upon and collected from the owners of the said real estate, and from the real estate benefited thereby in proportion to the benefit to be derived therefrom by said real estate as determined by said commissioners. Said order shall also state the lands which shall be subject to be assessed for the cost and expense of said improvement, and whether the estimated assessment therefor shall be made before the improvement is commenced, or after the same is completed."

In the present case the record discloses that at the time the petition asking for said road improvement was presented to the commissioners of Darke county, there were then 106 persons residing in said county who owned real estate lying and being within one mile of said proposed improvement. Of this number 98 resided within one mile of said road, and the remaining eight, all of whom were opposed to the making of said improvement, resided more than a mile distant therefrom. Of the 98 persons owning lands and residing within one mile of said road, 52 signed the petition asking for said improvement. If therefore, under the above statute, in determining whether a majority of the resident owners of real estate have signed a petition for the improvement of a public road only those owning land and actually residing within one mile of said road are to be considered and counted, then the petition in the present case was sufficient, it having bee signed by 52 of the 98 landowners residing within one mile of the road in said petition described. If, however, all landowners residing within the county who own lands lying within one mile of the road to be improved must be considered and counted in determining whether a majority of the "resident owners" have signed the petition for the improvement, then the petition in the present case was not sufficient and the commissioners were without authority or jurisdiction to proceed with or to order the making of said improvement-it being admitted that at the time of the presentation of said petition to the commissioners there were 106 such resident owners within Darke, county, only 52 of whom signed said petition. Obviously,

therefore, the question of jurisdiction is to be determined according to the effect and meaning given the expression "resident owners" as found in the foregoing act of April 4, 1900. These words are without definition in the act itself and a comparison of the several parts and provisions of said act contributes little or nothing to the discovery of their intended office and effect. The meaning of these words and the effect the Legislature intended they should have as employed and used in this statute may perhaps best be ascertained by a consideration of certain cognate statutes, observing and applying the well-established rule, that the provisions of a statute are to be construed in connection with all laws in pari materia and especially with reference to the system of legislation of which they form a part, and when in a system of laws relating to a particular subject a general policy is plainly declared, in order to arrive at the meaning of any particular part or provision the whole must be considered and that construction adopted, if may be, which will bring it in harmony with such general policy. Cincinnati v. Connor, 55 Ohio St. 82, 44 N. E. 582; Cincinnati v. Guckenberger, 60 Ohio St. 353, 54 N. E. 376. The act we are now considering is, as was said by the learned trial judge, "an act properly supplementary to the one and two mile assessment acts which relate especially to making road improvements by special assessments. They are in pari materia; the objects are the same, the persons interested are the same, and the same general plan of assessment is contemplated. * * We may therefore look to these acts for aid as to the legislative intent, and particularly as to the meaning of terms used in the act under consideration." Under the one and two mile assessment acts, all residents of the county owning lands within the assessment district may be petitioners, and all must be counted or considered in determining majorities. These statutes which were passed and had been in force for many years prior to April 4, 1900, are, we think, declarative of the general policy which the Legislature intended to prescribe and adopt in the matter of the making and improvement of roads, and a consideration of their provisions shows that it was the legislative purpose and intent to require that all landowners resident of the county, who own lands within the assessment district, which must bear the burden and will share the advantages resulting from the proposed improvement, shall be considered in determining whether or not a majority of the resident owners favor the making of the contemplated improvement. Such, then, being the declared general policy at the time the act under consideration was passed, and there being nothing in the act itself to indicate an intent to change or abandon such policy, and no reason being shown or suggested, why in the making of the improvement contemplated 78 N.E.-24

by this act such policy should be disregarded or abandoned, obedience to the rules of interpretation would seem to require that in construing the language and provisions of said act such general policy should be allowed to control. It follows therefore that the words "resident owners" as found in this act must be held to mean resident of the county and not merely resident of the assessment district, and such was the construction given them by both the circuit court and the court of common pleas.

The only remaining question is, was injunction the proper remedy? As to this we think it enough to say, that inasmuch as presentation to the county commissioners of a petition signed by the requisite number of resident landowners is necessary to confer jurisdiction, and is a condition essential and precedent to the right of the commissioners to act, no such petition in the present case having been filed or presented, the commissioners were without lawful authority to proceed with said proposed improvement because wholly without jurisdiction. Injunction therefore was the appropriate remedy.

Judgment affirmed.

SCHAUCK, C. J., and SUMMERS and DAVIS, JJ., concur.

(74 Oh. St. 252) COOLEY et al. v. STATE ex rel. VILLAGE OF BAY.

(Supreme Court of Ohio. May 22, 1906.) TOWNS - DIVISION RIGHTS IN TOWNSHIP FUNDS.

In case of the division of a township and the establishment of a new township, the new township, under section 1377, Rev. St. 1906, is entitled not only to its portion of the money in the treasury of the original township, at the time the new township is established, but also to money thereafter in the treasury, to the extent the same was collected from the territory established into the new township.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Towns, § 17.]

(Syllabus by the Court.)

Error to Circuit Court, Cuyahoga County. Action by the state, on the relation of the village of Bay, for a writ of mandamus against one Cooley and others. Judgment for petitioner was affirmed by the circuit court, and defendants bring error. Affirmed.

The village of Bay is, and in September, 1903, was, a municipal corporation in Dover township, Cuyahoga county, and at that time, by ordinance of its council, petitioned the county commissioners to change the limits of the township so as to establish a new township out of a portion of it by the name of the township of Bay, with its boundaries coterminous with those of the village. The township of Bay was so established by the commissioners on November 4, 1903. In May, 1903, the trustees of Dover township had made a levy of taxes on all of the tax.

able property in the then limits of Dover township. In March, 1904, the county treasurer paid over to the treasurer of Dover township the money received on collection of the first half of said levy. Thereafter the relator demanded of the trustees and the treasurer of Dover township that they apportion the money so received to Dover township and the village of Bay in the proportions it had been collected from the taxable property in their respective limits, and, upon refusal, a petition in mandamus was filed in the court of common pleas to compel such apportionment, and also payment, by the treasurer of the township of Dover. An alternative writ of mandamus was allowed. The defendants filed a general demurrer, which was overruled, and they not desiring to plead further, and no sufficient cause being shown to the contrary, the peremptory writ prayed for was allowed. On error the circuit court affirmed, and error is prosecuted in this court.

Stage, Armstrong & Cannon, for plaintiff in error. William O. Mathews, for defendant in error.

SUMMERS, J. (after stating the facts). Section 3 of the Municipal Code (section 1536-3, Rev. St. 1906 [Bates' 5th Ed.]), provides that when the corporate limits of a village become identical with those of a township all township officers, excepting justices of the peace and constables, shall be abolished and the duties thereof thereafter be performed by the officers of the village, and that all rights, interests, or claims in favor of or against the township may be enforced by or against the corporation. If mandamus is the remedy appropriate to the relief sought in the present proceedings, then it is properly instituted by the village; and, since it is not questioned, it is not considered.

The question presented involves the interpretation of section 1377, Rev. St. 1906, which provides: "And in case of division * * of any township, the funds in the treasury of such township shall be apportioned ** to the new township * * * established, to the extent the same were collected from the territory * ** established into a new township." The cash in the treasury on November 4, 1903, at the time the new township was established, was divided, and the village now claims its proportion of the cash now in the treasury from the December, 1903, collection of taxes, levied in May, 1903. The contention on the part of the village, briefly stated, is that the word "funds" does not mean money, merely cash, but all the existing means or resources of the township for the payment of its debts and the carrying on of its government. That a levy can be made only yearly, that nearly a year will pass after a levy before the money will be available, and that thus nearly two years might pass after the establishment of the new township before it would be able

to exercise its functions, and that such a result could not have been intended by the Legislature. On the part of the township the contention is that the word "funds" means money and, conceding that the Legis lature did not intend that the new township should wait two years before exercising its powers, that the new township, in the ab sence of statutory provision therefor, is entitled to no part of the property or resources of the old, and that if any such consequences follow it is a casus improvisus on the part of the Legislature that cannot be cured by judicial interpretation, since the words of the statute clearly do not provide for a division of funds arising from taxes levied but not collected at the time the new township is established, and that this is made certain by reference to the statute as it read before the revision of the statutes in 1880, and finds support in the fact that section 3946a, Rev. St., relating to newly created school districts, provides for a division, not only of money in the treasury, but also of the levy or levies, and that in 97 Ohio Laws, p. 337, it is provid ed that when territory is transferred from one school district to another there shall be a proper division of funds in the treasury or in process of collection; and that at the last session of the Legislature it was enacted by section 1565a, Rev. St., that a proper division shall be made of the funds for township purposes in the treasury or in process of collection.

The part of section 1377 under consideration was first enacted as section 2 of an act passed February 20, 1865 (62 Ohio Laws, p. 18), and reads as follows: "The funds in any township treasury at the time of said division or partition shall be apportioned to the township to which the same may be attached in proportion to the amount thereof collected from such attached portion." If the word "funds" as used in section 2 means money, then perhaps the new township would not under its provisions be entitled to any of the money thereafter coming into the treasury, but assuming that it did mean money, and that the same meaning must be given to it in section 1377, it does not follow that the provision in section 1377 must receive the same interpretation as section 2. Section 2 in the revision of the Statutes of 1880 was carried into that revision as the provision of section 1377 already quoted. The omission in the revision of the words "at the time of said division or partition" indicates an intentional change in the statute. Omitting them, the provision is, that the funds in the treasury of the township, to the extent the same were collected from the territory established into a new township, shall be apportioned to the new township. From obvious considerations of convenience the means of collecting the funds into the treasury are not changed, but the funds in the treasury of the old township at any time after the establishment of the new township to the extent they

were collected from the territory of the new are to be apportioned to the new. The fund in the treasury are to be divided. They were not in the treasury until they were collected, and the past tense has reference to the existence of the fund and not to the time of the establishment of the new township. The meaning of the section is made apparent by the transposition of one clause, and may be read, "and in case of division any township, the funds in the treasury of such township to the extent the same were collected from the territory established into a new township, shall be apportioned * * * to the new township established."

*

* of

The other sections referred to are not in pari materia, and the fact that in them provision is made for a division of the levy, or of money in process of collection, is not persuasive that the absence of such provision in section 1377 necessarily indicates a different legislative intent, but only that some one has grown wise. To rule that every amendment must be interpreted to add substance as well as light to a statute would discourage clarification, for then it could be done only at the expense of what originally was intended. The judgment is affirmed

SHAUCK, C. J., and PRICE and DAVIS, JJ., concur.

(74 Oh. St. 284)

GENERAL CARTAGE & STORAGE CO. v. COX.

(Supreme Court of Ohio. May 22, 1906.) PRINCIPAL AND AGENT-WAREHOUSEMEN-INSURANCE OF GOODS STORED-CONTRACT OF AGENT.

A corporation engaged in the business of storing goods for hire is bound by a stipulation to effect insurance on goods stored with it, the stipulation being incident to a contract of bailment executed in its name by an agent who, though without express authority to stipulate to insure, is by it held out to the public as authorized to make contracts for storage in the conduct of its business, the bailor acting in good faith and without notice of any limitation upon the agent's authority.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 255.] (Syllabus by the Court.)

Error to Circuit Court, Cuyahoga County. Action by one Cox against the General Cartage & Storage Company. Judgment for plaintiff was affirmed in the circuit court, and defendant brings error. Affirmed.

Cox brought suit in the court of common pleas against the Storage Company to recover for a breach of its alleged contract to procure insurance on goods stored by him with it and destroyed by fire while uninsured. He alleged that on October 4, 1902, the parties entered into a contract whereby the company, which as its name indicates was a warehouseman, agreed to store in its ware

house his household goods of the value of $850 and to have the same insured in the sum of $500 while they should be in its possession; that he delivered the goods to the company in pursuance to said contract; that it failed to procure any insurance whatever on them, and that on about January 10, 1903, a fire occurred to said warehouse and the goods were wholly destroyed. The company answered admitting its corporate character; the reception of the goods for storage and their destruction by fire; and denying all the other averments of the petition. On the trial of the issues to a jury the plaintiff introduced evidence tending to show that having ordered that vans of the company be sent for his goods, and the vans not having arrived, he hastened to the warehouse of the company and inquired of a young man on duty in the office and apparently in charge of it where the manager was. He was told that the manager was upstairs and would be sent for. Shortly an employé of the company named H. E. Smith, who was a stranger to Cox appeared in response to the summons and said that he was the manager. Cox then explained his insistence that the vans should be sent promptly for his goods because he had procured tickets for New York and the time for the departure of his train was near at hand, and that before going he desired to see his goods properly in place in the warehouse and to effect their insurance. In response to the latter suggestion Smith said: "Let us take care of that for you." After some conversation as to the character and rates of the proposed insurance Cox accepted the suggestion thus made to him, and Smith said: "We cannot hand you the policy now but will send it to you." Smith then made a written memorandum of the amount of the policy desired and of the New York address of Cox and added that as he had a bank account in Cleveland, he could send a check for the premium when he received the policy. A few days later a letter written on the head of the company and bearing its name in the proper place for its signature, attested, "per H. E. S." was sent to Cox at his New York address stating that insurance for $500 had been effected but that the policy was not forwardeu because of doubt as to the precise amount of insurance which he desired. The testimony offered by the company was that Smith was not manager for it but in his absence acted in his stead; that it was not engaged in the business of insuring goods left in its care; that it had given Smith no authority to bind it by contracts of this character, and that be did not report to it any insurance which he effected upon goods deposited with it. The value of the goods was proved by Smith as alleged. The jury returned a verdict for the plaintiff and the defendant's motion for a new trial was overruled. On petition in error the circuit court affirmed the judgment of the court of common pleas.

White, Johnson, McCaslin & Cannon, for plaintiff in error. E. J. Thobaben, for defendant in error.

SHAUCK, C. J. (after stating the facts). It cannot be claimed upon the evidence that the Storage Company was accustomed to insure goods left in its care, nor that Smith had express authority to make the particular contract set out in the petition or like contracts for insurance with others who deposited their goods with the Storage Company. Nor can it be said that such authority was implied in the sense that the making of the contract to insure was indispensable to the execution of his authority to receive goods for the company on bailment. Nor should there be any dissent from the legal proposition which counsel for the company advances in support of the criticisms of the rulings of the trial judge as to the competency of evidence and his instructions to the jury, viz., that the authority of an agent cannot be proved by his own declarations. But the question by which the liability of the storage company must be determined is, was it within Smith's apparent authority to make the contract counted upon in the petition? It does not seem important that Smith was not in fact the company's manager, for he appeared in that capacity at the time of this transaction when the manager was absent, and it is clear that in the absence of the manager he was authorized to act in his stead in the reception of goods for storage. His authority would not have been greater if he had regularly occupied the position of manager for the company. Counsel for the company insist that in determining whether Smith had such apparent authority to make the contract for insurance that Cox might rely upon it, it is the conduct of the company that is to be considered. The soundness of this proposition should be conceded for it is supported by the decided cases and by the reasons involved. The company fixed the character of its business and employed Smith in the capacity in which he was presented to those who appeared in response to its invitation to the public to store goods with it for hire. It was not an employment of a transient character or to represent it in the conduct of an isolated transaction, but in the general conduct of a business of established and defined character and scope. In the relation into which the parties were brought by the regular and usual conduct of that business the bailee, though not authorized to issue polices of insurance, was authorized to secure insurance upon goods stored with it even without the express assent of the bailor and to effect such insurance for the benefit of both parties to the contract of bailment. If insurance is effected by the bailee apparently for his own exclusive benefit he will, nevertheless, by legal construction be held to be a trustee for the bailor as to the surplus. The frequency with which this authority

is exercised by bailees of the character of plaintiff in error is suggested by the reported cases. A number of them are cited in the briefs submitted in the present case and they are in entire accord with respect to the doctrine stated. It is to the relation into which the parties were thus brought by the express and confessedly authorized contract of bailment in connection with the facts found in the statement of the case that we are to apply the rules of law respecting the apparent authority of an agent. A correct statement of the matured view of that subject will show that it does not have exclusive regard to the immunity of the principal without consideration of the rights of those who accept his invitation to enter into contract relations with him. That view is comprehensively and accurately stated in Johnston v. Milwaukee and Wyoming Investment Co., 46 Neb. 480, 64 N. W. 1100: "Where a principle has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages, and the nature of the particular business, is justified in assuming that such agent is authorized to perform on behalf of his principle a particular act, such particular act having been performed the principle is estopped as against such innocent third person from denying the agent's authority to perform it." It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent's authority of which he may have notice. The most careful scrutiny of the record in the present case discovers no suggestion of the want of usual prudence or good faith on the part of the bailor.

The rulings of the trial judge respecting the competency of evidence and instructions to the jury are consistent with these views, and the judgment is affirmed. Affirmed.

PRICE, CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(74 Oh. St. 271)

GAISER v. HURLEMAN.

(Supreme Court of Ohio. May 22, 1906.) MALICIOUS PROSECUTION-ACTION-TERMINATION OF PROSECUTION SAULT.

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G. filed his affidavit against H. and others, before a justice of the peace, charging them with a violation of section 6830, Rev. St. 1906 (blackmailing), on the 2d day of January, 1901, in unlawfully menacing and threatening G. with personal violence with the intent thereby to extort money from him. The case was heard by the justice, and the parties, including H., were held to answer said charge before the court of common pleas. At the next term of said court, G. appeared before the grand jury and gave and furnished evidence to support said charge, upon which the grand jury found and returned an indictment for the same; and at the same time, on the same evidence, and covering the same alleged criminal transaction of the

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