
    Alexander et al., Commissioners of Darke County, v. Baker et al.
    
      Interpretation of words “resident owners” — In act of April 4> 1904 — Improvement of public roads — Improvement requires the majority of petitioners, when — Authority of county commissioners — Road laws — Injunction.
    1. The words “resident owners” as used in section one of the ■ act of the general assembly passed April 4, 1900, (94 O. L., 96), entitled, “An act to provide for the improvement of public roads,” mean, and were intended to designate and include, all owners of real estate who are residents of the county and own lands lying within one mile of the road to be improved, and all must be considered and counted in determining whether a majority of the resident owners of real estate have signed the petition asking for the improvement.
    2. A petition presented to the county commissioners under favor of this section, asking for the improvement of a public road, which is not signed by a majority of such resident land owners, does not confer upon the commissioners jurisdiction; and where said commissioners assume to act on such petition and are threatening to proceed with and make said improvement, they may be restrained therefrom by injunction.
    (No. 9797
    Decided May 22, 1906.)
    Error to the Circuit Court of Darke county.
    On the twentieth day of March, 1905, the defendants in error presented to the county commissioners of Darke county, Ohio, and caused the same to be filed with the auditor of said county, a petition asking for the improvement of a certain public road lying and being within said county, pursuant to an act of the general assembly of the state of Ohio passed April 4, 1900, entitled “An act for the improvement of public roads.” (94 O. L., 96.) On March 30, 1905, said commissioners having theretofore considered said petition and having found and determined that the same was signed by a majority of the resident owners of the real estate lying and being within one mile on either side of said road and having found upon actual view of said road that the public utility required its improvement they thereupon, on said thirtieth day of March, in conformity with said findings ordered said road improved by grading and graveling according to the specifications fixed by them in said order, and directed the county surveyor to go upon the line thereof and perform the duties specified in said order in accordance with section one of said act. Said commissioners also determined and ordered that one-half of all the costs and expenses of the improvement of said road, except bridges,, sewers and culverts should be paid out of the proceeds of any levy, or levies upon the grand duplicate of the county, to be assessed by them against the taxable property of the townships of. Twin and Monroe in said county, in which townships said road is located, in proportion to the length of said road in each township, and ordered that the balance of said costs and expenses thereof be assessed upon, and collected from the owners of real estate situate within one mile of said road on each side thereof benefited thereby, and in proportion to. the benefits to be derived therefrom to said real estate, and further determined and ordered, that the estimated assessment therefor be made after said improvement was completed.
    Thereafter, on the thirtieth day of June, 1905, the defendant in error, George W. Baker, suing for himself and others, commenced an action in the court of common pleas of Darke county, Ohio, against the commissioners of said county, the petitioners for said road improvement and James R. Marker, county surveyor, to enjoin the making of said improvement, plaintiffs alleging in their petition as grounds for said injunction: (1) That a majority of the resident landowners had not signed the petition asking for said improvement; (2) That the public utility did not require said improvement; (3) The costs would exceed the benefits; (4) The commissioners ordered the road improved by grading instead of by stone as prayed for in the petition; (5) Said act of the general assembly of April 4, 1900, purporting to authorize said improvement, is unconstitutional. To this petition the commissioners interposed a demurrer, and this being overruled they thereupon filed their answer, pleading therein three several defenses. The first defense consisted of specific denials of certain of the allegations of said petition.
    The second defense of said answer set up and alleged affirmatively the facts as to the resident owners of land lying and being within one mile of said road, and further averred that the estimated assessment for said road, was to be made after said road was completed; and that the engineer had not made an estimated assessment of the proportion of the costs and expenses of said improvement upon the real estate to be charged therewith, and had not fixed and determined the amount or proportion thereof that should be assessed against plaintiff’s lands, or others, and had not determined the benefits that would result to plaintiff’s lands from said:improvement; that he would not do so until said road was completed as directed by said order of said commissioners; and that said commissioners did not intend to assess plaintiff’s lands or the lands of those whom he" claimed to represent, in excess of the special benefits said lands would derive from said improvement.
    Defendants for a further and third defense set up that the alleged want of jurisdiction of said commissioners to make said improvement was shown upon the commissioners’ journal, together with the exceptions of said plaintiff to said action of said commissioners in proceeding with said improvement, and that the error, therefore, if any, was apparent upon the record of said commissioners.
    Demurrers having been filed and sustained to tbe second and third defenses of said answer and plaintiffs having filed a reply to the first defense therein, the cause came on to be heard in the court of common pleas upon the pleadings and evidence and the court, on submission of said cause, having been requested by the defendants, the county commissioners, to separately state its finding of facts and conclusions of law, found among other facts the following, which are the only facts found by the court that are material or pertinent to the present inquiry.
    4. That the village of Arnettsville is a municipal corporation, situate wholly within one mile of said road sought to be improved in petition described, but said road does not extend into, nor through the municipal limits of said village.
    5. That at the time said defendants, the commissioners of said county, heard said petition for said road improvement, and determined that a majority of all resident owners of land lying and being within one mile thereof had signed said petition, there were one hundred and six persons owning lands lying and being within one mile of said road, of whom ninety-eight resided within one mile of said road in said county and state, and the other eight resided in Darke county, Ohio, but more than one mile from said improvement; that neither of said eight persons so residing within said county, but more than one mile from said road, signed said petition, and all are opposed to the improvement of said road.
    6. That of said ninety-eight persons so owning lots and lands and residing within one mile of said road, fifty-two signed said petition to improve the same; that of said fifty-two persons so signing said petition, thirty-four thereof resided within the municipal limits of said village of Arnettsville, owning real estate therein consisting of lots, and eighteen outside thereof owning lands. That of the forty-six persons so owning lots and lands and residing within one mile of said road, who did not sign said petition, forty-two owning lands resided without, and four owning real estate therein consisting of lots resided within the municipal limits of said village of Arnettsville.
    And as conclusions of law upon the above facts the court found:
    1. That all landowners residing in said county of Darke, in the state of Ohio, who own lands lying and being within one mile of said road, whether residing within one mile of said road or residing beyond or more than one mile from said road, should be counted in determining whether a majority ha;d signed said petition therefor.
    2. That all owners of real estate consisting of lots situate within the municipal limits of said village of Arnettsville, and residing within the municipal limits of said village, should also be counted in determining whether a majority had signed said petition for said road improvement.
    4. That a majority of all the landowners residing in said county, who owned lands lying and being within one mile of said road, did not sign said petition therefor, and said defendants, the commissioners of said -county, are without jurisdiction to proceed with the improvement of said road, and by reason thereof should be perpetually enjoined from so doing. That the injuries and damagés 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.
    
      Messrs. Anderson, Bowman & Anderson, for plaintiffs in error,
    cited and commented upon the following authorities:
    
      Thompson v. Love, 42 Ohio St., 76; Lewis v. Laylin, 46 Ohio St., 663; Wells v. McLaughlin, 17 Ohio, 99; Butman v. Fowler, 17 Ohio, 101; Bisher v. Richards, 9 Ohio St., 495; State v. Craig, 12 Circ. Dec., 189; 22 C. C. R., 138; Zimmerman v. Canfield, 42 Ohio St., 463; Bowersox v. Watson, 20 Ohio St., 496; Longanecker v. Commissioners of Darke County, 69 Ohio St., 557; Haff v. Fuller, 45 Ohio St., 495; Frevert v. Finfrock, 31 Ohio St., 621; Frevert v. Finfrock, 43 Ohio St., 335; Endley v. Aldrich, 8 Circ. Dec., 725; 15 C. C. R., 36; s. c. Aldrich v. Endsley, 58 Ohio St., 725; Commissioners v. Junkins, 19 Ohio St., 348; secs. 4450, 4452, 4661, 4774 and 4836, Rev. Stat.
    
      Mr. Martin B. Trainor, for defendants in error,
    cited and commented upon the following authorities:
    
      Street Railway Co. v. Pace, 68 Ohio St., 205; Cincinnati v. Guckenberger, 60 Ohio St., 353; Cincinnati v. Connor, 55 Ohio St., 82; Lewis v. Laylin et al., 46 Ohio St., 663; Musser v. Adair, 55 Ohio St., 476; Wells v. McLaughlin, 17 Ohio, 99; Butman et al. v. Fowler et al., 17 Ohio, 101; Railroad Co. v. Commissioners, 35 Ohio St., 9; State ex rel. v. Insur ance Co., 50 Ohio St., 262; Elliott on Roads and Streets, secs. 415, 453; Lear v. Halstead, 41 Ohio St., 572; Caldwell v. Village of Carthage, 49 Ohio St., 349; Railroad Co. v. Cummins et al., 53 Ohio. St., 683; Railroad Co. v. Commissioners, 48 Ohio St., 249; Bowles v. State, 37 Ohio St., 43; Carlisle v. Hetherington, 47 Ohio St., 235; State ex rel. v. Commissioners, 54 Ohio St., 333; Commissioners v. State ex rel., 50 Ohio St., 661; State ex rel. v. Commissioners, 56 Ohio St., 780; Commissioners v. Young et al., 36 Ohio St., 288; Makemson v. Kauffman et al., 35 Ohio St., 444; Raymond et al. v. Whitney et al., 5 Ohio. St., 201; Village of Pleasant Hill v. Commissioners, 71 Ohio St., 133; 50 O. L. B., 57; McGuire v. Smock et al., 42 Ind., 1; Doane v. Railway Co., 160 Ill., 22; Howard v. First Independent Church of Baltimore, 18 Md., 451; Traction Co. v. Parish, 67 Ohio St., 181; Dean, Appellant, v. Clark et al., Respondents, 80 Hun, 80; Smith et al. v. 
      Applegate, 2 Zab., 352; Military Academy v. Railway Co., 65 N. J. Law, 328; State v. City of Elizabeth, 35 N. J. Law, 351; Hays et al. v. Jones, 27 Ohio St., 219; Roberts v. Easton et al., 19 Ohio St., 78; Belknap v. Belknap, 2 Johns. Ch., 463; Burgett et al. v. Norris, 25 Ohio St., 308; Glenn, Treasurer, et al. v. Waddell et al., 23 Ohio St., 605; Matheny v. Golden, 5 Ohio St., 361; High on Injunctions, sec. 1271; Spelling on Injunctions, secs. 141, 142; Elliott on Roads and Streets (2 ed.), 607; Town et al. v. Nelson, 35 Ind., 532; Haff v. Fuller, 45 Ohio St., 495; Frevert v. Finfrock, 31 Ohio St., 621; s. c., Fravert v. Finfrock, 43 Ohio St., 335; Gilliland v. Sellers, 2 Ohio St., 223; Taylor, Aud., et al. v. Crawford et al., 72 Ohio St., 560; 50 O. L. B., 415; State ex rel. v. Brown et al., 60 Ohio St., 470; Kelley v. State, 6 Ohio St., 269; Hixson v. Burson et al., 54 Ohio St., 479; Elliott v. Berry, 41 Ohio St., 110; Fields v. Commissioners, 36 Ohio St., 476; Hutchinson v. City of Omaha, 52 Neb., 346; N. W. Rep., 218; Zimmerman v. Canfield, 42 Ohio St., 463; Bowersox v. Watson, 20 Ohio St., 507; Commissioners v. Commissioners, 64 Ohio St., 160; Brown v. O’Connell, 36 Conn., 433; Norwalk St. Ry. Co., In re, 69 Conn., 576; Siebold, Ex parte, 100 U. S., 371; Maynard v. Hill, 125 U. S., 190; Taylor v. Porter, 4 Hill, 140; Crawford v. Taylor, 27 O. C. C., 245; Shepard v. Barron, 14 O. F. D., 417; secs. 2660, 2662, 4637, 4638, 4645, 4737, 4774, 4779, 4799, 4825, 4836, 4850, 4906, 4925, 4927, 5848 and 6708, Rev. Stat.
   Chew, J.

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 one of the act of the general assembly passed April 4, 1900, 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 such 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 one hundred and six persons residing in said county who owned real estate lying and being within one mile of said proposed improvement. Of this number ninety-eight 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 ninety-eight persons owning lands and residing ■ within one mile of said road, fifty-two signed the petition asking for said improvement. If therefore, nnder 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 been signed by fifty-two of the ninety-eight 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 one hundred and six such resident owners within Darke county, only fifty-two 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 systém 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 pro-, vision 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; Cincinnati v. Guchenberger, 60 Ohio St., 353. 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 iu 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 ehangé or abandon such policy, and no reason being shown or suggested, why in the making of the improvement contemplated 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.

Shatjck, C. J., Summers and Davis, JJ., concur.  