
    The Trustees of New London Township v. Asel Miner, Jesse Perkins, L. D. King and Albert White.
    Under the provisions of the act “ For the incorporation of townships,” passed March 14,1853 (S. & 0.1565), and the act relating to town halls, passed April 2, 1866 (S. & S. 784), township trustees when authorized to provide a town hall for the people of a township, may, in their discretion, with the money raised for that purpose, purchase and cause to be erected a town hall in the second story of a building, without purchasing or owning the entire building or the ground on which it stands.
    Reserved in the District Court of Huron county.
    This is a petition in error, filed in the District Court of Huron county, seeking to reverse a judgment of the Common Pleas of that county, and reserved by the District Court for decision in this court. The plaintiffs in error were plaintiffs below, and the defendants in error were defendants below. To the petition in the Common Pleas the defendants demurred generally—alleging that it did not state" facts sufficient, to constitute a cause of action. The-demurrer was sustained, and judgment thereupon rendered for the defendants; and this ruling on the sufficiency of the petition is now here assigned for error.
    In substance, the material allegations of fact in the petition are as follows :
    At the township election in April,'’1868, the first three defendants above named were elected as trustees of the township, and served as such for the ensuing year.
    Under the act of April 2, 1866 (S. & S. 788), and in ac■cordance with its provisions, the electors of the township had, in April of the preceding year (1867), decided in favor of. levying a tax for the erection, etc., of a town hall. Taxes were accordingly duly levied and collected for that purpose.
    There was no land belonging to the township on which to erect a town hall; but Albert White, the defendant last ■above named, being the owner of real estate within the vil iage and township of New London, and being about to construct an extensive brick building thereon, the first-named three defendants, being and acting as trustees of the township, entered into articles of agreement with said White, under seal, to construct for the purpose of a town hall an extensive apartment in the second story of such building, for the exclusive use of the township—said articles of agreement containing full and carefully worded provisions for such exclusive use, for ingress to and egress from it, and also minute specifications as to plan, material, character of workmanship, and means of ingress and egress. These articles also contain a stipulation on the part of White to make to the township a warranty deed of conveyance of said hall, its belongings and appurtenances.
    Under these contracts various payments were by the defendant trustees made to White, the builder, from the township funds raised for that purpose.
    At the April election, 1869, the defendant trustees were superseded by the plaintifis herein ; and in the petition they allege that the contracts and payments made by their predecessors were unauthorized by law; that the defendants knew them to be so unauthorized, and, on their part, fraudulent; and they demand judgment against the defendants in their individual capacity for the amounts thus paid and expended.
    
      II. Goodwin, for plaintifis in error :
    The only question is: Were the acts of the defendant trustees, as set forth in the petition, legal or authorized by law?
    
      The act of April 2,1866 (S. & S. 784), confers all the-power the trustees have in the premises.
    Indeed, there is nothing certain about this statute except that the trustees must buy a lot to put the hall on; and I insist that the town hall must be erected upon the ground. The statute says: “ And the ground upon which it is erected.” It can not be erected upon the top of any other person’s building. It is the ground, and nothing less than that, which is to be under the control of the trustees. Nothing less than a fee-simple title will do.
    There is no specific power given to the trustees to build the hall or make a contract; but the legislature did try to-make it certain that a lot should be bought.
    They know, of course, that, in this town hall, the elections of the people would be held.
    If there is any place or thing that needs the most perfect protection in this land of ours, it is the place where the elections are held, and the ballot-box, on which the liberties of the people depend; and the necessity is apparent that the absolute control of the town hall should be in the-trustees.
    It Avould seem that there can be no mistaking the meaning of the words “ if necessary.” It amounts to this: that there would not in every case be a necessity to purchase a lot, for the reason that the town had already a public square, which was, to all intents and purposes, under the control of its council, but if they did not have this,. then “ upon such property as they might purchase.”
    It was not for the trustees to create, avert, or even judge of the necessity. Goff v. Inhabitants of Eekoboth, 12 Met.. 26 ; Norton v. Mansfield, 16 Mass. 51.
    On the question of the corporate powers of trustees of township, see Hopple v. Brown Township, 13 Ohio St. 324; 8 lb. 568.
    
      Jacob Brinkerhoff, for defendants in error :
    The question in the case is : Were the actings and doings of the defendant trustees in the premises authorized by law ? Eor the solution of this question we must, in the first, place, resort to the statute (S. & S. 788). That statute, section 1, simply authorizes the levying of a tax “ for the purpose of erecting a town halland section 2 simply authorizes “ the trustees of such township . '. . to purchase a lot, if necessary, upon which to erect said hall.” And section 3 provides “ that said hall and the ground upon which it is erected shall be under the control of the trustees of the township.” And that is all there is of it.
    There was not imposed upon them by the terms of the statute any obligation to buy lands on which to erect a hall from the ground upward. That is left to the discretion of the trustees. They may do it “ if necessary.” They found no such necessity, but they accomplished all that was desirable for use as a town hall in the erection of an apartment of the second story of a large building, ample in size, of easy access, more pleasant in locality than a ground-floor could be, more still and quiet for either business or amusement, and evidently at much less cost to the township, because they saved the expense of a ground foundation and a roof.
   Gilmore, J.

This action is prosecuted by the present trustees, in the name and for the use of New London township, against their immediate predecessors as individuals, seeking to hold the latter personally liable for having used moneys duly raised by taxation for the erection of a town hall, in a manner unauthorized by law. The money was used in the purchase and erection of a town hall in the second story of a brick building, of which-neither the first story nor the ground upon which it stands were owned in fee-simple by the township. The hall is 'completed and ready for the use of tlm township. It is not alleged in the petition that it is not substantially constructed, well finished, and of suitable size and proportions to fit it for the purposes intended. There are allegations to the' effect that the township’s use of the hall will not be exclusive and free, but will be subject to annoyances and interferences from the owners or occupiers of the ground and first story. These allegations are not supported by statements of fact that warrant them, and are therefore to be regarded as merely conjectural objections that may never occur. The real ground of complaint set forth in the petition is this: That the hall is not built upon ground owned in fee-simple by the township; and the claim is, that the acts of the defendant trustees, in procuring a hall upon ground not so owned, was wholly unauthorized by law ; and that, having misapplied the money raised, they are personally responsible to the township for the amount thus expended. In short, counsel on both sides agree that the only question in the case is, “ were the actings and doings of the' defendant trustees in the premises authorized by law ? ”

It is settled that neither the township nor its trustees are invested with the general powers of a corporation; and hence the trustees can exercise only those powers conferred by statute, or such others as are necessarily to be implied from those granted, in order to enable them to perform the duties imposed upon them.

To determine whether the trustees in this instance transcended their authority in the premises, reference must be had to the statutory provisions which control the case.

The first to be noticed is: '

The act to authorize the erection, improving, enlarging, or constructing additions to town halls, passed April 2, 1866 (S. & S. 784). • The first section prescribes the mode of giving notice and bringing the question to a vote.

By the second section it is provided, “ that -every voter who is in favor of levying a tax on all the property in the township, incorporated village, or city of the second class as aforesaid, for the erection of such hall, or for improving, enlarging, or constructing additions to town halls already erected, as the case may be, shall indorse on his ballot ‘town hall/ ‘improvement town-hall/ ‘enlargement town hall/ or ‘addition town hall/ as the case may be; and if a majority of all the ballots cast at said election are indorsed as aforesaid, then the trustee's of such township, council of -such incorporated village or city of the second class, shall, -on the first day of June thereafter, inform the auditor of the proper county of the vote of the electors in such township, incorporated village, or city of the second class, as aforesaid, as expressed at said election; and the county auditor shall levy a tax on all the property of such township, incorporated village, or city of the second class, standing on the grand list, for the purpose aforesaid, to enable, the trustees of such township, the council of such incorporated village or city of the second class, to purchase a lot, if necessary, upon which to erect said hall. And it shall be lawful for the trustees of any township, council of any incorporated village, or city of the second class, in which a town hall shall have been erected at any time, to levy a tax upon all the property of said township, incorporated village, or city of the second class subject to taxation, for the purpose of painting, repairing, or discharging any existing debt incurred in the erection or purchase of such hall, -or in the improving, enlarging, or constructing additions to such hall.”

The third section provides, “ that said hall, and the grounds upon which it is erected, shall be under the control of the trustees of the township, if erected by a township; and of the council, if erected by an incorporated village or city of the second class.”

It is under a construction of the ¡provisions of this act alone that counsel for plaintiffs claims that the judgment below should be reversed. But if there are other statutory provisions in force on this subject, they must all be considered and construed together. This becomes the more necessary from the fact that the lauguage of the act above quoted from is so uncertain and ambiguous in every respect that resort must be had to any aids, intrinsic or extrinsic, within reach, in order that its provisions may be made harmonious and intelligible. Counsel for plaintiffs in argument says: “ Indeed there is not anything absolutely certain about •this statute except that the trustees must buy a lot to put -the hall on.” But with the parenthetical if necessary” injected into the clause enabling the trustees to purchase a lot, how can it be said that it is certain that they must purchase a lot? The words “if necessary,” as they occur in the clause, can not be rejected. Some effect must be given to them. Looking alone to the language of the act, there is nothing by which the meaning of the legislature, in using these words, can be ascertained with certainty.

The effect of the words “ if necessary,” as they are used, without reference to extrinsic matters, would be to clothe the trustees with an unqualified discretionary authority in reference to the purchase of a lot on which to build the hall. The third section does not in terms qualify any discretionary authority with which the trustees were previously clothed; and if they were clothed with authority to procure a town hall, in other ways than by owning or purchasing a lot, and building a hall upon it, this section imposes no restrictions upon the exercise of such authority. Its effect would be to give the trustees control of the hall, if procured in any lawful manner, otherwise than by being built upon ground owned by the township; and, if built upon ground owned by the township, then the control of both the hall and the ground would be vested in the trustees by the terms of the section—a legal consequence that would follow from the absolute ownership, irrespective of the provisions of the third section. The principal purpose of this section was to designate the body that should liavecontrol of the property in each instance; the act having conferred power to build halls upon more than one body corporate. The third section, therefore, does not either control or even aid us in the construction of the clause “to-enable the trustees of such township, the council of such incorporated village or city of the second class, to purchase a lot, if necessary, upon which to erect said hall.”

This clause is a several grant of additional powers to three distinct and separate bodies corporate, to be exercised by either if necessary to accomplish the object desired;, but, if there existed reasons, such as a village already owning a suitable lot upon which to erect the hall, or the township trustees were already clothed with powers to acquire such property by other means than by building a hall upon ground owned in fee-simple by the township, then each of the bodies for itself, and in view of the circumstances and existing powers, was, in its discretion, to determine upon the necessity of purchasing a lot upon which to build the hall. It left each body named at liberty to exercise all the powers with which it had been clothed by previous legislation on the same subject-matter, and conferred additional discretionary power of purchasing a lot upon which to erect the hall, if such purchase should be deemed necessary.

In this view, it is unnecessary to look to the powers previously conferred, if any, upon the councils, respectively, of incorporated villages or cities of the second class upon this subject, as the question before us relates exclusively to township trustees.

Agreeing with counsel for the plaintiffs in error that one of the principal objects in the erection of a town hall is to furnish the people with a place “ where they can be secure and undisturbed in holding their elections and transacting their other township business,” it follows that the “ town hall” provided for under the act of 1866, where the people of a township desire it, is but a substitute for the “ township house,” which the trustees, under the act of 1858 (S. & C. 1565), were required to procure for the people of each township to hold their elections and township meetings in ; and it seems to us that the provisions of this latter act in reference to township houses, and the modes of procuring them, may also apply to the procuring of a town hall for the use of the people of a township, when they may desire it. The twenty-fourth section of the act of 1853, above alluded to, provides as follows :

“ The trustees of each township in this state shall have power to determine on and fix the place of holding elections within their townships, for which purpose they are hereby authorized to lease any house already erected, or contract for, on permanent lease or otherwise, a site, and erect thereon, a house for the purposes aforesaid; and they •shall give previous notice, as in case of township meeting. The trustees, at every election or township meeting, shall have power to cause any and every disorderly person to be removed, and, if necessary, confined until the close of such election or meeting; and every constable present shall obey their orders and directions, for the purpose of preserving order at such meeting.”

This section is still in force, and it confers upon the trustees very broad discretionary powers as to the mode of securing a place in which to hold elections and township meetings; and also constitutes them conservators of the peace, with power to preserve order at all elections and township meetings held at such place—a power that might be exercised at a “town hall” on election day as well as at a “ townsifip house.” The additional power of purchasing a lot (if necessary) upon which to erect the hall, conferred by the act of 1866, is no limitation upon the power of the trustees to obtain, by any of the means provided by the section last above quoted, a suitable town hall for the people of a township. Taken and construed together, the portions above quoted from the two acts, in our opinion, conferred authority upon the trustees of New London township to make the contracts and provide the town hall in the manner it has been done in this case.

In addition, it may be remarked that by the contract made by the trustees in this case, the township acquires a permanent legal and equitable title to real estate, which is absolutely exclusive so far as it relates to the town hall, in the possession and use of which the law will as fully and completely protect the township as if it owned the fee-simple title to the ground upon which it stands; and by it the people of the township obtain all the benefits that were intended to be conferred by the law. Under these circumstances, the trustees should be held personally l’esponsible to the township for moneys officially expended by them, •only when it is shown that they acted wholly without authority.

The demurrer to the petition was properly sustained by the Court of Common Pleas.

Judgment affirmed.

Welch, C. J., White, Rex, and McIlvaine, JJ., concurred.  