
    The Lorain Plank Road Company v Newton Cotton.
    1. The provisions of section 58 of the general act to create and regulate incorporated companies (S. & C. Stat. 297), apply to pre-existing plank road companies, the charters of which subject such companies to the provisions of all laws which might “ thereafter be enacted, for the purpose of governing and regulating such companies generally in this state.”
    2. Said section, which revises the whole subject matter of the amendatory act of March 10,1836 (S. & C. Stat. 355), “ for the regulation of turnpike companies,” and is evidently intended as a substitution for it, is to be regarded as superseding the latter act, and not as furnishing an additional or cumulative remedy.
    
      Error to the district court of Lorain county.
    The plaintiff in error, a body corporate under the laws of this state, filed a petition in the Lorain common pleas, in a suit appealed from the docket of a justice of the peace of said county, to recover damages for an unlawful and forcible breaking, by the defendant, of a toll-gate erected under its charter, and in the lawful possession of the plaintiff.
    .The defendant, relying upon section 58 of the corporation law of April 9, 1852 (1 S. & 0. Stat. 297), giving á remedy where plank and turnpike roads are out of repair, answered, in substance, that a short time previous to the time at which •the said pretended wrongs, etc., were done, to-wit, on the 7th day of November, 1857, the said plank road being out of repair and in an unsafe and dilapidated condition, between Elyria and Charleston, in said county, complaint in writing was made according to law, before H. S. Rockwood, a justice of the peace of said county. That said justice duly appointed two disinterested persons as inspectors, to examine into the truth of said complaint, as to the condition of said road between the points named, and that said committee, having given notice on the 10th day of said month to the agent or keeper .of said toll-gate, as the law requires, of the time and place of the view of said road, did on the 12fch day of said November, upon actual view of said road, find the complaint to be true, and thereupon, forthwith notified all the keepers of toll-gates between the points named, of the said proceeding and the result of the same pursuant to law; and also notified them, and each of them, not to demand, receive or collect tolls at said gates, until the road between the points named was duly repaired and put in good and lawful condition, as required by law. Defendant also averred, that after said complaint was made, up to and at the times said pretended wrongs are alleged to have been committed, said plank road was not repaired, nor put in good condition as the law requires, but on the contrary, remained and was out of repair and unsafe and dilapidated and under condemnation as aforesaid, and that, finding said obstruction in and across the said highway, and, desiring to pass along the same with a team, he used sufficient force to remove said obstruction, and no more, etc.
    To this answer the plaintiff demurred; and the court of common pleas sustained the demurrer; and the defendant failing to answer farther, the court rendered judgment against him for $1 50, and costs of suit.
    The judgment was reversed, upon a petition in error, in the district court, and the cause remanded to the court of common pleas for farther proceedings.
    The present petition in error is prosecuted to reverse the judgment of the district court.
    The errors assigned are:
    1. The district court erred in reversing the judgment of the court of common pleas.
    2. The district court erred in giving judgment for the defendant in error.
    
      >S: Burke, for plaintiff in error.
    Two questions are presented by the record :
    1. Does the law passed May 1,1852, “ to create and regulate turnpike and plank road companies,” apply to the plaintiff and other plank road companies incorporated by special charter under the old constitution ?
    2. If applicable, were the proceedings set up in the answer in accordance with the law of 1852, and so pleaded as to constitute a defense ?
    1. We claim that the law of March 10,1886 (S. & C. Stat. 385 and 336), is applicable to the plaintiff, and that the' law of 1852 (S. & C. 297 and 298) is not applicable. The law of of 1836, and all other laws to regulate turnpikes, is made applicable to the plaintiff by the terms of its charter; and if the law of 1852 had not been enacted, there could be no doubt of the liability of the plaintiff to submit to inspection and condemnation under the law of 1836. Was the law of 1852 enacted for the purpose of superseding and taking the place of the law of 1836 ? The defendant says it was.. We deny it. The act of 1852 was passed for the express purpose of enabling parties to organize companies under the new constitution, special acts of incorporation being therein prohibited. The act itself purports to be an act to “ create and'regulate turnpike and plank road companies;” and it differs materially, in many of its provisions, from the old acts of incorporation.
    There is no averment, in the answer, that the Lorain Plank Road Company ever accepted the provisions of the act of 1852; and until accepted, it could not apply to the plaintiff. See S. & C. Stat. 309, secs. 88 and 89.
    It does not seem that there can be any reasonable doubt as to the intention of the legislature. It seems plain that the act of 1852 was designed merely to create and regulate new corporations, and to regulate such new companies as saw fit to accept its provisions, and when so accepted, that portion of their charter inconsistent with the provisions of the act of 1852 is repealed.
    The legislature can not be supposed to have overlooked the law of 1836, and, by leaving it in force, and unrepealed, strong evidence is furnished that the law of 1852 was not designed to apply to old companies.
    A reference to the different sections above named is all that would seem to be required to show clearly that the district court erred, and that its judgment should be reversed.
    “ Repeals by implication are not favored in law, and such repeal will not be recognized unless the repugnancy between the prior and subsequent act of legislation be necessary and obvious, and so great, that the two can not be reconciled by any fair course of reasoning.” Buckingham, et al. v. Railroad Company, 10 Ohio St. Rep. 27.
    It is difficult to see the repugnancy in this case. One act applies to the old companies; the other, to new.
    2. As to the second point, we invite attention to the proceedings set up in the answer. They do not seem to us to comply with the law of 1852. There is no pretense that the proceedings were according to the law of 1836.
    
      3. The answer does not state that the trespasses justified are the same complained of.
    
      W. W. Boynton, for defendant in error.
    By a local act of the legislature bearing date January 28, 1848, vol. 46, Local Laws, page 36, the Lorain Plank Road Company was incorporated, and under the provisions of the act entitled “ an act to incorporate the Milan and Richland Plank Boad Company,” found in vol. 43, Local Laws, page 49. In 1849, the act was extended from Elyria to Black river between which places is the road in controversy.
    Do the provisions of the general corporate act of 1852, govern, and apply to the Lorain Plank Road Company, which was incorporated before the passage of the general act?
    The charter of the Lorain Plank Road Company above referred to, vol. 43, Local Laws, page 42, sec. 12, contains these words: “ That said company and the corporators thereof shall be subject to the provisions of all acts, and also entitled t: the benefits of all acts now in force, or which may hereafter b§ enacted.”
    The answer sets up certain proceedings had under, and pursuant to section 58 of the corporation law, S. & C. Stat. 297; and does this section apply and extend to the Lorain Plank Road Co. ? We maintain it does.
    When the general incorporation act of 1852 excepts from the control of its provisions, companies chartered antecedent to its passage, it does so by using the terms “roads heretofore established” — and when it excepts any roads chartered subsequent to its passage, it uses the terms “ roads hereafter to be established.” But when it says directly and plainly, that if any turnpike or plank road company shall fail to keep its road in repair, you may proceed to have it condemned, as does section 58, above referred to, it means just what it say3, and includes roads whenever incorporated, more especially when by the very terms of the charter of the company it is bound to be governed by any and all general laws, thereafter to be passed, appertaining to the subject.
    A statute should be so construed, if practicable, that every word shall have some force and effect; and that no clause, sentence or word should be superfluous, void, or insignificant. Stokes v. Commissioners, 4 Weekly Law Gaz. 21. Broom’s L. M. 250. Chitty on Contr. 84. Bla. Com. 379. 7 B. & C. 643. Man. & Ry. 600.
    And .general words in a statute must receive a general construction, unless there is some ground for restraining them. Introd. to Curwen’s Stát. Beckford v. Wade, 17 Ves. 91. Buckingham v. Drury, Wilmot, 177. Bank of Alabama v. Dalton, 9 How. 522. 3 Johns. 267; 20 Ib. 47. 2 Wheat. 15 12 S. & M. 702.
    The word “any” in section 58, is used in its general and pop'ular signification. It has no other — means “ all,” 10 Howard Pr. R. 79, S3. It is, however, claimed that the amendatory act providing for'the regulation of turnpike companies, passed .March 10, 1836, S. & C. Stat. 335, is now in force, and controls the steps to be taken to. secure the condemnation of dilapidated plank roads established before the enactment of the general law of 1852.
    It will be observed, that this act of 1836 speaks only of turnpike companies. And if it ever was applicable to plank roads, it is not now. In the case of Moore v. Vance, 1 Ohio Rep. 1, Judge Hitchcock holds, that “It is a well settled rule, that when a law enacts a thing to be done different from the same thing required by a former law, the first thereby becomes repealed without any direct expression of such intention by the law making power,” It perhaps is too broad a declaration to say, that the act of 1836 is not applicable to any plank road company. There may be plank roads in the state, the charter of which .expressly limits them to the opera-' tions of the provisions of the act of 1836, where steps are taken to condemn them; but the rule, as above laid down by Judge Hitchcock, is applicable to this case, and the act of 1836 may not be superseded by the act of 1852 only in so .far as it conflicts with section 58, in all such cases as those where the latter section is applicable and controlling. It is, therefore, submitted that the holding of the district court was correct and should be sustained.
   Peck, J.

The principal, if not the only, question raised by the record is, whether section 58 of the general corporation law (1 S. & 0. Stat. 297) is applicable to the plank road of the plaintiff in error?

It is, indeed, suggested, that the answer does not make a case under that section, because it, is not specifically averred, that the trespasses attempted to be justified are the identical trespasses complained of. But that fact, under a reasonable construction of the code, is sufficiently apparent from the answer.

So, too, it is suggested, but not argued, that the averments of the answer are not as full and explicit as they should be under said section. But this defect, if it be one, could only be reached by motion. The averments are sufficient to admit proof of all the facts necessary to a complete defense under said section.

The answer avers, substantially, that the plaintiff, having failed to keep its road in repair as required by law, proceedings were duly instituted, by a complaint under section 58 of the corporation act, above referred to, for the temporary suspension of its right to collect tolls. ' That said proceedings resulted in finding the complaint to be true, and a suspension, under said section, of the right to collect tolls until the road should be put in repair. That such disrepair continued up to and at the time of the alleged grievances, when the defendant, in passing along said road with his team, removed the obstruction caused by the gate of the plaintiff, using no unnecessary force, and doing no unnecessary damage.

If the above section is applicable to the road of the plaintiff in error, the demurrer to said answer should have been overruled, and the judgment of the common pleas was properly reversed. The “Lorain Plank Road Company” was incorporated January 28, 1848 (46 Local Laws, 86), and this act subjects the newly-created corporation, to all the provisions of the act incorporating the “ Milan and Richland-Plank Road Company,” passed January 31, 1845 (43 Local Laws, 49). By the 12th section of the last named act, the company and its corporators, are subjected to all the provisions, and entitled to the benefits of all acts then in force, or which might thereafter be enacted, for the purpose of governing and regulating turnpikes generally, and not inconsistent with its act of incorporation.

Section 58, under which the proceedings set forth in the answer of the defendant vyere had, is one of the sections of a general law, passed in 1852, “ to create and regulate turnpike and plank road companies,” and is not inconsistent with either of the local laws above referred to, and would seem, therefore, to be applicable to the road of the plaintiff.

It is said, however, that this law, though general in its terms, was not intended to affect companies previously incorporated, but only such as might thereafter be created. Certain portions of the act relate exclusively to companies to be created under it, and of this character are sections 44, 45, 46 and 47, in regard to the creation and organization of companies thereafter to be formed, while other sections, the 50th for example, relate to companies previously incorporated. In all these cases, however, the “ companies ” referred to, are clearly indicated by the context, or are described, as “ companies heretofore incorporated,” or as “ hereafter to be incorporated,” while the residue of the act, which prescribes rules for the maintenance, regulation and control of such roads is general in its phraseology and application. The words used are, “ any turnpike or plank road;” “ all turnpike and plank road companies;” “ every turnpike and plank road company,” and the like. The 58th section is also applicable to all plank road companies, the introductory words being — “ that if any turnpike or plank road company shall fail to keep its road in repair,” etc. The plain and obvious import of the words “ any,” “ all ” and “ every,” as employed in these sections, is to extend their provisions to all turnpike and plank road companies, irrespective of the time when they were created, if liable, under their respective acts of incorporation, to be regulated by general laws. It is the undoubted policy of our present constitution, and the legislation under it, to regulate corporations, private and municipal, by general and uniform laws, so far as is practicable, and that none should be ex-eluded from their operation, if falling within the language employed.

The act of 1852, is a “ general law regulating plank road companies,” and by force of its act of incorporation, the plank road of the plaintiff, became and was subject to the provisions of that statute, and is not, therefore, within section 88 of the act regulating corporations, which requires the assent oí companies previously incorporated, as 'is urged by the eoun sel for the plaintiff. The rights and liabilities conferred or' imposed by that statute, are not matters outside of the plaintiff’s charter, and requiring adoption, but immediately upon the enactment of the law, they became part and parcel of the corporate rights and duties of the plaintiff.

Prior to the passage of the act of 1852, the plaintiff in error was subject to the provisions of the amendatory act of March 10,1836 (S. & 0. Stat. 335),“ for the regulation of turnpike companies,” which contains provisions similar to those of section 58 of the act of 1852, for the suspension of tolls upon roads which the companies have failed to keep in repair, except that inspectors, who are upon view to determine the truth of the complaint, are to be appointed, under the former law, by the court of common pleas, or,'as the case may be, by an associate judge of such court. It is insisted that the law of 1836, is neither expressly nor impliedly repealed by the act of 1852, and is, therefore? still in force as to all companies, incorporated prior to the passage of the act of April 9, 1852.

If this were true, the result anticipated by the counsel for plaintiff — that proceedings, could not be sustained against the plaintiff under said section 58 — would by no means follow.

If we are right in the conclusion, that the general provisions of the law of 1852, are applicable to corporations created prior to its passage, and the law of 1836 is also in force as to them, then the law of 1852 must be regarded as providing a cumulative or auxiliary remedy, to which the party aggrieved may resort, if he elects to do so.

We incline, however, to a different opinion, and that the law of 1836, above referred to, is superseded by the 58th section of the law of 1852.

Section 58 is a re-enactment of the law of 1836, with the single exception of the tribunal, invested with the duty of appointing the inspectors — the same complaint is to be made— the same facts must exist — the same course of procedure is prescribed for the inspectors — the same notices of the preliminary and final action upon the complaint are to be given, and the same disabilities and penalties are imposed, if the complaint is found to be true.

It is manifest, therefore, that if section 58 is applicable to pre-existing corporations, it was intended as a substitute for the act of 1836, and must be held to supersede it.

The constitution of the court of common pleas in 1852, was very different from what it was when the act of 1836 was enacted. Its duties were devolved upon a single judge residing in but one county of the subdivision, instead of one presiding judge and three associates resident in each county, of his circuit. The statutory remedy was one which might require speedy action, and should at all times be within the reach of every citizen. There was, therefore, a propriety in providing a tribunal near at hand, whose aid might be invoked at the least sacrifice of time and money. If this was true of corporations not then created, it was equally true of those already incorporated, and no good reason exists why a distinction should be made between them, when a right had been reserved in the charters of existing companies, to subject them to regulations imposed upon companies subsequently incorporated.

“ A subsequent statute revising the whole subject matter of the former act, and evidently intended as á substitute for it, although it contains no express words to that effect, operates to repeal the former.” Ounven’s Introduction to vol. 1, Rev. Stat., p. 17; Davies v. Fairbrain, 3 How. 636; Sedgwick on Statutes, 124,125. Such also seems to be the opinion of the learned compiler of the Revised Statutes. See note to section 58, supra.

While on the one hand we hold, that the legislature, in enacting a general law, under the new constitution, to regulate plank road companies, and using words which apply ti prior as well as subsequent corporations, intended its provisions to apply equally to both classes, where the right tc do so was expressly reserved in the pre-existing charters; we are also satisfied, that section 58 of the law of 1852, in revising the whole subject matter of the act of 1836, and extending its application to old as well as new corporations, provided an exclusive and not a cumulative remedy, where the roads of pre-existing corporations are out of repair.

Judgment of district court affirmed.

Scott. C.J., and Sutlirr, Gholson and Brinkerhorr, J J, concurred.  