
    The Citizens’ Electric Railroad Company v. County Commissioners.
    
      Municipal corporation — Powers of — Ordinance authorizing corporation to extend road — Act unlawful, when — Sections 3438 and 863 Rev. Stat.
    
    An ordinance adopted oy a city council under section 3438, Revised Statutes, simply confers on a street railway company the corporate power to extend its road over a state or county road. In the exercise of the power, the right to so extend its road, can only be acquired by agreement with the commissioners or by condemnation; and where a company so extends its ro^ad over a state or county road beyond the city limits, without such agreement or condemnation, its acts are uulawful, and a recovery of the damages caused to the road, may be had at the suit of the county commissioners under Sec. 86S, Revised Statutes.
    (Decided February 2, 1897.)
    
      Error to the. Circuit Court of Richland county.
    Under an ordinance passed by the city council of the city of Mansfield, June 7, 1892, authorizing the Citizens’ Electric Railway Light and Power Company to extend its track within the city limits, and also without, “ along- what is known as the Olivesburg road” to a definite point, the road named being- a state road, the Electric Railway Company extended its track over the road, digging it -up and excavating it so as to greatly injure and impair its usefulness for public travel. No leave was obtained from the county commissioners nor agreement had with them. On these facts the commissioners brought suit against the company for damages under the proyisions of section 863, Revised Statutes. At the trial evidence was offered by the plaintiff of the facts stated; the defendant offered the' ordinance, and moved the court to direct the jury to return a verdict in its favor, which was done by the court. A motion for a new trial was made and overruled, and judgment rendered dismissing the action. The plaintiff excepted; and on error to the circuit court, the judgment was reversed and cause remanded for further proceedings.
    The case is now here for a reversal of the judgment of the circuit court.
    
      Cummings <& McBride, for plaintiff in error.
    It has been decided in Ohio that without statutory authority the commissioners in their official capacity cannot maintain an action for the wilful destruction of the highway. 7 Ohio, (pt. 1) 230; Commissioners v. Railway, 45 Ohio St., 403.
    The act first passed in this state and out of which section 3438 of the Revised Statutes grew, was passed and became a law April 10, 1861, and was entitled, “An act to provide for and regulate street railway companies.” 58 Ohio Laws, 66
    This act was amended Feb. 19, 1870, (see vol. 67, page 19, Ohio Laws) but making no change as to how and with whom such agreement should be made, except as to the national roads when the board of public works should be consulted. Although in the meantime no legislation was had enlarging upon these rights in favor of municipal corporations, still words importing such enlarged powers crept into the revision of 1880. (See section 3438 therein.) Allen v. Russell, 39 Ohio St., page 336.
    This court, however, is relieved from putting any forced construction upon the statute by the act of April 18, 1883. 80 Ohio Laws, page 174.
    It seems to us that the statute, 3438, means just what it says; that the language is plain and that there is no ambiguity in it when it says, that the authority to so construct .or extend such railway within and beyond the limits of a municipal corporation can be granted only by the council thereof by ordinance.
    The courts of Ohio have decided that the. Supreme Court and all other courts can not usurp the law-making power; but must confine themselves to determining what the law is and not to making new laws. Ludlow v. Johnson, 3 Ohio, 553; Pcmcoast v. Ruffin, 1 Ohio, 381; Beaver v. Blind Asylum, 19 Ohio St., 97.
    The circuit court, in deciding this case, got into the uncertain field of speculation to determine as they thought what the legislature meant by this amendment to section 3438, passed in 18§3. This was • erroneous. Broioer v. Hunt, 18 Ohio St., 311.
    
      Again it is the literal meaning of the statute that must be adhered to. If the intention is doubtful, the literal and obvious meaning must be adhered to. Burgett v.. Burgett, 1 Ohio, 469.
    But if the language of the statute is unambiguous there is no room for construction. Mb Gormiok v. Alexander, 2 Ohio, 65.
    Another plain and simple rule in the construction of the statutes and which the circuit court violated in deciding this case, is the following: “The ordinary and natural import of words, consistent with the common sense of the community, is to be adopted in arriving at legislative intent.” Allen v. Little, 5 Ohio, 65; State v. Beck, 21 Ohio St., 26.
    Plain and explicit language cannot be construed contrary to the express words on conjecture. Hathaway’s Will, 4 Ohio St., 383; Smith Bridge Go. v. Bowman, 41 Ohio St., 37.
    Nor the obvious meaning abandoned though the court is convinced that the legislature intended differently and omitted words by mistake. Wood-bury v. Woodbury, 18 Ohio St., 456.
    Nor a new meaning given to words because such was the probable intention, nor a general law controlled by the peculiar circumstances of one case. Ludloio v. Wade, 5 Ohio, 494.
    . If several causes irreconcilably conflict, the last in date or local position must prevail, except perhaps, where the last is obscure and incoherent and the earlier clear and explicit. State ex rel. v. Hamilton, 47 Ohio .St., 42.
    This amendment in 1883 is in the nature of an exception varying the general statutes and therefore is not in conflict with any provision of section 863. State ex red. Orawford v. Mo Greggor, 4 Ohio St., 628; Brower v. Hunt, 18 Ohio St., 311.
    
      In short, when the words admit of but one meaning a court is not at liberty to speculate on the intention of the legislsture, or to construe an act according to its own notions of what ought to have been enacted.
    Whilst the court is to seek for the intention of the legislature, that intention is not, to be ascertained at the expense of the clear meaning of the words. Endlich on .Inter, of Stat., section 7; James v. Petten, 6 N. Y., 9, 13; Leoni v. Taylor, 20 Mich., 148; Frye v. R. B. Go., 73 111., 399.
    The intention of the legislature is to be ascertained by means of the words which it has used, and though these words are often modified, though their literal sense is not always adopted, though they are sometimes strained, transported, treated as inadequate or. as superfluous ; they are still the only interpreters of the mind of the legislature. Endlich on Inter, of Stat., sectionS; Breioer v. Blougher, 14 Pet., 178; Cearfoss v. State, 42 Md., 403.
    The circuit court, in their opinion of this case, clearly show that they have violated all of the above rules of construction. Their decision is not based on the language of the statute, but upon their own speculation.
    
      2£. May and J. O. Laser, for defendants in error.
    Defendant in error’s right to sue and recover is sustained by a number of cases brought under section 863, to-wit: Laiorenee Railroad Company v. Commissioners of Mahoning County, 35 Ohio St., 1; Perry County v. Railroad Company, 43 Ohio St., 451; Commissioners v. Railway Co., 45 Ohio St., 401; Railroad Co. v. Commissioners, 31 Ohio St., 338.
    
      There is only one question in this case, to which we will refer, and that is: Can a municipality by and through its council grant such rights to a street ear corporation to pass upon and over a public highway without the city limits, and change the grade of the same, without becoming responsible to the county commissioners, for the damage to the public highway, and to the property owners abutting upon the public highway, for the damage that may result to their properties by reason of the construction of a railway track ?
    Defendant in error thinks not for three reasons:
    
      First — Because a law, attempting to give to a city council a right to exercise such a power, or jurisdiction, over a state or county road, without the city limits, would be unconstitutional.
    
      Second — Because section 863 of the Revised Statutes gives to the commissioners of the several counties jurisdiction of the highways, and enjoins upon them the duty of keeping them in repair and free from obstruction, and to protect the rights of the public with reference to a wrongful 'invasion by private individuals or corporations upon public highways.
    
      Third — Because the statute construed, as plaintiff in error demands.that it shall be, would be in violation of section 19, of the Bill of Rights.
   Minshall, J.

The leave to extend, obtained by ordinance from the city council, did not, as we think, of itself confer the right on the company to occupy the Olivesburg road; it was under the supervision and control of the commissioners of the county, and, by section 3441, ‘Revised Statutes, the company was required to agree with the commissioners as to its occupation. No such agreement was had, and, therefore, what the company did was unlawful. Section 3438, Revised Statues, on which the company relies for its defense, must be construed with other sections relating to the same subject. State and county roads are under the general supervision and control of the commissioners of the county, where they are located; and by section 863, Revised Statutes “where any state or county road, or public highway, has been injured or impaired by placing or continuing therein, without lawful authority, any obstruction, or by filling up or digging out the bed thereof, or in any manner rendering the same less convenient or useful than had been previously by any person or corporation, such person or corporation shall be subject to an action for damages,” and the commissioners of the .county are authorized to bring the action and to “recover such damages as have accrued by reason thereof.” Section 3441 provides, that, “If the public road, along which the railway is to be constructed is owned by a person or company, ,or is within the control or management of the board of public works or other public officers, such person, company or officer may agree with the person or company constructing the railway as to the terms and conditions upon which the road may be occupied.” This section plainly applies to state and county roads under the control of county commissioners, as well as to roads under the control of the board of public works. No reason is perceived why any discrimination should have been made; and the term “officer” will, in its connection, by fair interpretation include a board of county commissioners. This section is not, therefore, consistent with the claim of the defendant, and clearly indicates that the ordinance provided for in section 3438, Revised Statutes, simply confers corporate power on street railway companies, and uot the right to use and occupy state and county roads in extending’ their tracks over them. Without such ordinance a company could not extend its road within or without the municipality. As a corporation it has, without the ordinance, no such power. To illustrate: By articles of incorporation a railway company is empowered to locate and . construct a railroad between its termini. But the power so conferred is subject to the duty of making compensation to the owner for .private property taken; and of agreeing with the county commissioners as to the use and occupation of public hig’hways under their control. Section 3283, Revised Statutes. In the same sense, under the provisions of section 3438, power may be c’onferred by ordinance on a street railway company to extend its road within or without the city or village, where located; but in executing the power it is reqiiired to conform to the duty of making compensation to the owner of private property taken, unless waived, and of agreeing with the commissioners as to the use and occupation of any state or county road under their control. And if it cannot do so, must resort to the alternative of condemnation, which it may do under the provisions of section 3440, Revised Statutes. Conferring the power to agree with the board or officer having control of the road, does not confer the right to take the road if an agreement cannot be had. The provision implies an alternative, and the duty to adopt one or the other. In this case the company did neither ; and, as a wrong doer, is therefore liable to the action of the commissioners for the damages caused to the road from the acts done, as averred in the petition and shown by the evidence. If it were otherwise, then a street railway company , could, under the ordinance of a city, extend its road over the highways of a county to any part of it without being liable for damages, though the roads so occupied might be rendered wholly useless 'for public travel. This is contrary to what has been the general policy of the state in regard to steam railways; and no reason is perceived why it should have been the intention of the legislature, by section 3438, to confer such franchise on street railways and, for the reasons before given and the sections of the statutes referred to, we feel sure that no such intention existed in adopting that section.

The case is well considered by Jenner, J., in delivering the opinion in the circuit court. 9 C. C. 183.

Judgment affirmed.  