
    Henry v. Trustees.
    
      Statutory construction — Cemeteries—Powers of township trustees in relation to establishment of — Section 1464, Revised Statutes, construed,
    
    1. In the construction of a statute, it is, as a general rule, reasonable to presume that the same meaning is intended for the same expression in every part of the act. But the presumption is not controlling, and where it appears that by giving it effect an unreasonable result will follow, and the manifest object of the statute be defeated, a court is at liberty to disregard the presumption, and attach a meaning to the words in question, which will make the act consistent with itself, and carry out the true purpose and intent of the law makers.
    2. Under section 1464, Revised Statutes, which authorizes township trustees to acquire by purchase or appropriation, lands for cemetery purposes, such trustees are prohibited from establishing a cemetery nearer than two hundred yards from a dwelling-house, without the consent of the owner, whether the land is acquired by an appropriation proceeding or by purchase. And when trustees are endeavoring to so establish a cemetery in violation of the section, they may be enjoined in a suit by the owner of a dwelling-house within the limit.
    Error to the Circuit Court of Shelby county.
    The action below'was brought by the plaintiff in error against the defendants in error to enjoin them from establishing a township cemetery. The material allegations of the petition are that the plaintiff is a resident tax-payer in Perry township, Shelby county, and seized of a life estate in a parcel of land situate therein; that the defendants as township trustees, have undertaken to purchase and accept of one Win. R. Reed a conveyance for cemetery purposes of a tract of ten acres of land, all of which was done- without plaintiff’s knowledge or consent; that the ten acres is within sixty feet of the dwelling-house of plaintiff situate on his land, and a large portion of the ten acres drains towards plaintiff’s dwelling-house and his well, situate near, so as to allow the drainage from the cemetery grounds, if so established, to flow easily into said well; that the defendants, unless restrained, will proceed to lay out and establish a cemetery and burial grounds on said tract bordering within sixty feet of and draining towards plaintiff’s dwelling-house and well, and .will proceed to pay out the moneys of the township in the attempted purchase and improvement of such cemetery without authority of law, all of which will result in great and irreparable injury to the plaintiff. A temporary injunction, to be made perpetual on final hearing, was prayed for.
    Answer was filed by the trustees as follows:
    “Defendants admit the purchase of the ground of W. R. Reed, as in the petition averred, but say that prior to the purchase of said land and the location of a cemetery thereon, that said defendants made an order that the question of cemetery or no cemetery should be submitted to the electors of said township, and was so submitted according to law at the spring or April election of 1880, to the decision of the electors of said township, and that of the electors who voted upon said proposition, 118 voted in favor thereof and 39 against. That in pursuance of said election and majority, they proceeded to and did levy a tax upon the taxable property of said township to defray the expenses thereof, which said tax was duly collected, and that said money so collected was expended on the purchase of said grounds and laying out and beautifying the same. Defendants deny that said proposed cemetery grounds are within 60 feet of said house and well, or either of them; but say that said grounds are separated from the premises of the plaintiff by a turnpike road 60 feet wide, and the nearest part of said ground devoted for burial purposes is distant from said dwelling-house and well about 170 feet, and that the house and well of plaintiff are distant from the nearest point of said cemetery grounds about 120 feet.' Defendants further deny that there is any drainage from said cemetery grounds to the house and well of the plaintiff, but that, on the contrary, the drainage is from said premises of plaintiff. Defendants deny that the location of said cemetery will be any injury or damage to premises of the plaintiff.”
    In the common pleas a trial was had which resulted in a judgment making the temporary injunction before granted perpetual. On appeal the circuit court overruled plaintiff’s demurrer to the answer, and, on trial, dissolved the injunction and rendered judgment for the defendants.
    The case is here to obtain a reversal of the judgment of the circuit court.
    
      Carper £ Van Deman, for plaintiff in error.
    
      W. D. Davies, for defendants in error.
   Spear, J.

The contention of the plaintiff is that there was no power in the township trustees to acquire the lands for cemetery purposes within two hundred yards of plaintiff’s dwelling-house without his consent, and that the establishment of a cemetery as contemplated would be unlawful, and hence a nuisance per se, and that, this appearing, the plaintiff was entitled to an injunction; while the defendant claims that the question having been submitted to the voters, as required by section 1465, Revised Statutes, and a majority voting in favor of the project, the purchase was lawful; that the use proposed was authorized by statute, and that plaintiff could not have relief without showing, by proof, that the cemetery, as proposed, would work special damage to his property. In overruling the demurrer to the answer, the circuit court held the law as claimed by the defendants.

In our judgment the determination of the questions depend upon a proper construction of section 1464, Revised Statutes. That section reads as follows:

“ Sec. 1464. The trustees may accept a conveyance of, or purchase, and inclose, improve, and protect such lands, in one or more places within the township, as they deem necessary and proper for cemetery purposes ; and if suitable lands cannot be procured by contract on reasonable terms, they may appropriate lands therefor, not exceeding ten acres, by proceedings in accordance with the provisions of law regulating the appropriation of private property by municipal corporations ; but no such appropriation shall be made, until the court is satisfied that such lands cannot be obtained by contract on reasonable terms, nor shall any lands be so appropriated on which there is any house, barn, stable, or other building, or any orchard, nursery, medicinal, or mineral spring, or well yielding oil or salt water ; nor shall anjr land be so appropriated within two hundred yards of a dwelling-house.”

As the foregoing section gives all the authority possessed by township trustees to obtain land for cemetery purposes, we must look to it to ascertain the extent of that authority, and the limitations upon it. It will be specially noted, that, by the language of the last clause, no lands can be appropriated by the trustees for the purpose of a cemetery within two hundred yards of a dwelling-house. May the trustees in any way lawfully acquire land for that use within that distance from a dwelling-house without the consent of the owner thereof ? This raises the question as to what import is to be given to the words “so appropriated” as last, used in the section.

The manifest purpose of the act is to provide a way by which a public necessity in every inhabited township may be supplied, and at the same time no injury result to the inhabitants by too close proximity to their dwelling. The design of the clause in question is to guard the comfort, the health, and the lives of the people. Per se, a cemetery is not a nuisance, but this act carries the implication that, in the judgment of its framers, the locating of a cemetery, nearer than two hundred yards from a dwelling-house, is a thing to be prohibited. The tendency to injure the value of the property, and to impair the health of the inmates, if placed too near, is matter of common knowledge. Not that, in all cases and under all circumstances, it would necessarily have that result, but the extreme probability of such effect was a sufficient cause to induce the legislature to enact the prohibition. No question is made but that the section absolutely prohibits the establishment of a cemetery within the limit where an appropriation proceeding has to be resorted to in order to obtain the land. The contention in support of the judgment below, is, that if the land can be purchased then the location may be made nearer than the distance named. If this is a correct interpretation of the act, the result is a singular one. We have the legislature, in one clause of the section, providing that the township may not obtain land for a cemetery within the prescribed distance, and in another clause providing that it may do so, and yet there is no perceptible reason for a difference. The object of the prohibition, as we have seen, is to protect the owner of a dwelling-house and his property from the probable effect of a location of a cemetery too near the property, and yet, while two modes of acquiring land are provided for, one of them, if resorted to, will afford that protection, and the other will absolutely defeat it. No possible harm could come to the owner of such dwelling-house from the acquisition of land by an appropriation proceeding, which would not follow the acquisition by purchase, and the construction claimed, to every intent, defeats the object of the clause referred to. The legislature could never have intended this. That body would not knowingly provide against an evil if brought about in one way, and at the same time, and by the same section, permit it to be accomplished in another way, when the objection did not lie to the manner of doing the thing, but to the result after it was done. A construction producing so inconsistent a result, should not be adopted if any other is practicable.

Nor, as it seems to us, is a construction which will give effect to the manifest intent of the legislature, difficult. The entire strength of the defendant’s ease rests upon the claim that the term “ any lands be so appropriated,” in the last clause, refers only to lands which may have been acquired by an appropriation proceeding, which is its evident meaning in the sentence preceding. A literal first blush interpretation would, perhaps, warrant that conclusion, but we are “ bound not to stick in the mere letter of a law, but rather seek for its reason and spirit, in the mischief that required a remedy and the general scope of the legislation designed to effect it.” Tracy v. Card, 2 Ohio St. 431.

We are, it is true, to gather the intent from the language used, but we are also to ascertain that intent from a proper interpretation of the language, though this may require a departure from the literal meaning of words. “ A strict and literal interpretation is not always to be adhered to, and where the ease is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter.” People v. Lacombe, 99 N. Y. 49. The true meaning is to be arrived at by taking a view of the whole act, so as to understand its real object. If the apparent meaning of the words, at first blush, would lead to a manifest contradiction of the purpose of the enactment, it is the duty of the court to seek some. other meaning which will be in accord with that purpose. It is said by Brinkerhoee, J., in Terrill v. Auchauer, 14 Ohio St. 87: “ if the statute be fairly susceptible of two different constructions, we are at liberty to choose that one which, while it remedies the mischief aimed at, avoids the absurd or unjust consequences which would flow from the other.”

The ascertainment of the true intention, says Mr. Endlich in his work on the Interpretation of Statutes, sec. 295, “ is the cardinal rule, or rather the end and object, of all construction ; and where the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will Garry that design into effect, even though, in so doing, the exact letter of the law be sacrificed, or though the. construction be, indeed, contrary to the letter.” He cites in support People v. Weston, 3 Neb. 312; Hunt v. Railroad Co., 112 Ind. 69; Brown v. Barry, 3 Dal. 365; Minor v. Michigan Bank, 1 Pet. 46, and a number of other cases, and we do not doubt that the text properly states the rule on the subject. This same author (sec. 387) remarks that as a general rule, it is reasonable to presume that the same meaning is intended for the same expression, in every part of the act, and the interpreter is bound, in general, not to assign different meanings to the same words on the ground of a supposed intention of the legislature, but adds that, “ the presumption is not of much weight,” and cites to this last point U. S. v. Palmer, 3 Wheat. 631; R. v. Lewis, Dears, C. & B. 182; R. v. Allen, L. R., 1 C. C. 367, and Bones v. Booth, 2 W. Bl. 1226.

There is no question but that the section treats of appropriation proceedings, and has in contemplation that lands may be acquired in that way, nor that the purpose of the inhibition against the appropriation of lands on which there is any house, barn, etc., is to make it impossible for the trustees to compel an owner to part with such property, against his will, even though a compensation should in the same proceeding be awarded. Why is it not reasonable to presume that, with like regard for the rights of the citizen, the purpose of the clause following is to make it impossible for the trustees to indict damage upon the owner of a dwelling-house by a location within the prescribed distance ?

It follows that if a meaning other than one implying a reference to lands acquired by an appropriation proceeding, one which will be in accord with the manifest purpose of the act, can be given to the term “ be so appropriated,” in the last clause of the act, the court is not only at liberty to adopt it, but it is its duty to do so. One dednition of the term “ to appropriate ” is to consign to some particular purpose or use; to set apart for some use. In this sense, therefore, “ to be appropriated ” is to be devoted to some purpose or use, and we think it not violative of the canons of construction, to give to the term that meaning in this connection. The clause under this interpretation means the same as though it had been written: Nor shall any land be devoted to cemetery purposes lying within two hundred yards of a dwelling-house. This construction makes the several parts of the law consistent with each other, is in the line of the object to be subserved, and suppresses the mischief which the legislature evidently had in mind in passing the act, while the construction claimed by the defendants renders the section self-contradictory, and results in a nullidcation of the policy of the enactment.

It is not questioned that the owner of a dwelling-house may sell to the trustees lands for cemetery purposes within two hundred yards of his house, and thus estop himself from claiming the protection of the law, bnt the owner of land desired for that purpose, cannot, by selling, impair the right of his neighbor to that protection.

If our conclusion as to the proper construction of the clause in question is correct, it follows that the plaintiff is entitled to a- perpetual injunction. The law does not permit the injurious act to be done, and leave the owner of the dwelling-house to an award of damages ; it prohibits the injurious act itself. And upon showing that he is of the class coming within the protection of the law, the plaintiff is entitled to have the prohibitory provision enforced by the court.

We are not called upon to determine what the rights of the parties would have been had the facts shown that the portion of the grounds to be devoted to burial purposes is two hundred yards distant from the plaintiff’s dwelling-house. No such case is made. The answer itself avers that the part of the grounds devoted to burial purposes is distant from the house one hundred and seventy feet, and there is nothing in the record to show that any portion of the land purchased is farther away than two hundred yards.

Judgment of the circuit court reversed, demurrer to answer sustained, and judgment for plaintiff.

Williams, C. J.,

(dissenting.) I am unable to concur in the foregoing decision.

The argument of the majority opinion culminates in the conclusion that the last clause of section 1464, of the Revised Statutes, must be read- as follows: “ nor shall any land be devoted to cemetery purposes lying within two hundred yards of a dwelling-house.” This reading of the statute, not only ignores a part of its language, but is at variance with its plain terms. The section expressly provides two modes of acquiring lands, by the trustees of a township, for cemetery purposes; one by purchase or donation, and the other by-appropriation proceedings. The former is accomplished with the consent of the owner, the latter without his consent. The power of the trustees to acquire lands’for such purpose, by purchase or donation, is conferred by the first clause of the section, in the following language: “ The trustees may accept a conveyance of, or purchase, inclose, improve, and protect such lands, in one or more places within the township, as they deem necessary and proper for cemetery purposes.” It will be noticed that there is no limitation upon the power of the trustees, under this clause, to purchase, or accept a conveyance of such lands, either as to the quantity of the land, or as to its condition, location or situation, except that it must be within the township. In the purchase of lands for cemetery purposes, as well as in the acceptance of a conveyance of land for such purpose, within their township, the trustees are left to the free exercise of their best judgment, concerning the quantity necessary and proper, and the location and situation thereof. They are authorized, in the language of the statute, to thus acquire “ such lands in one or more places within the township, as they deem necessary and proper.” It is evident that the remainder of the section, that is, all of it except the first clause, relates entirely to the appropriation of private property, for cemetery purposes, by legal proceedings on the part of the trustees. Its language is, “ and if suitable lands cannot be procured by contract on reasonable terms, they (the trustees) may appropriate lands therefor, not exceeding ten acres, by proceedings in accordance with the provisions of law regulating the appropriation of private property by municipal corporations; but no such appropriation shall be made until the court is satisfied that such lands cannot be obtained by contract on reasonable terms, nor shall any lands be-so appropriated on which there is any house, barn, stable or other building, or any orchard, nursery, medicinal or mineral spring, or well yielding oil or salt water; nor shall any land be so appropriated within two hundred yards of a dwelling-house.”

The power of appropriation by legal proceedings, conferred on the trustees by this section, is subject to three clearly defined restrictions or qualifications; one of which, limits the quantity of land that may be so appropriated, to ten acres; another, exempts from such appropriation, lands on which there is a house, barn, stable, or other building, or an orchard, nursery, medicinal or mineral spring, or well yielding oil or salt water; and the only other one, is that contained in the last clause of the section, which prohibits the taking of lands by such an appropriation, which lie within two hundred yards of a dwelling-house. All of them, it is manifest upon the reading of the section, are merely limitations upon the exercise, by the trustees, of the power of eminent domain. They neither have any application to the first clause of the section, nor in any way limit, or affect the authority conferred by it on the township trustees, to “ accept a conveyance of, or purchase, inclose, improve and protect such lands, in one or more places within the township, as they deem necessary and proper ” for cemetery purposes. It is not claimed that the trustees may not, in the proper exercise of the power conferred on them by the first clause of the section, purchase and use for a cemetery, more than ten acres of ground; and it is conceded that they may so acquire and use any lands on which there is a house, or other building, orchard, nursery, spring, or well yielding oil or salt water. To sustain the decision announced in the case, it becomes necessary, therefore, to hold that the phrase “so ■appropriated,” in the last clause of the section, means “ devoted to the uses of a cemetery,” and does not refer to an appropriation by legal proceedings. In my opinion, the reading of the section shows, that this is a strained and far fetched conclusion. I do not doubt that the word “appropriate,” when used in certain connections, may mean “to apply or devote to ; ” but obviously it was not used in that .sense in the clause under consideration. It is there qualified by the word “so,” and the phrase “so appropriated,” refers to a mode or manner of appropriation previously specified or described; and by reference to a previous clause of the same section, it will be seen, that there, a particular mode of appropriation is specified, namely, an appropriation of private property for a public use by proceedings in accordance with the provisions of law regulating the appropriation of private property by municipal corporations. In the subsequent clauses of the section, instead of repeating specifically the character or manner of the appropriation, it is referred to by the phrase “ so appropriated.” It is admitted that this is so, in the clause next preceding the last one in the section. That clause reads, “ nor shall any lands be so appropriated on which there is any house,” etc. There can be no question that the phrase “ so appropriated,” in that clause, refers to the appropriation by legal proceedings as specified in the preceding clause. That it does so, the learned judge who wrote the majority opinion, admits. And jret, it no more certainly refers to the appropriation by legal proceedings, specified in the previous clause of the section, than does the same phrase, “ so appropriated,” in the last clause of the section. There is nothing in the context, which gives to the same phrase in the different clauses of the same section, different meanings. If the legislature had intended to prohibit the use, for a cemetery, of lands acquired by the trustees under the first clause- of the section, that were within two hundred yards of a dwelling-house, it was easy to express that intention in plain terms. But no such intention is expressed. In the enactment' of the section, the legislature had before it the subject of the appropriation of private property for the public use of a cemetery, by legal proceedings, as distinguished from the acquisition of property for such a purpose by purchase or donation; and by the section, the authority to appropriate lands for such purpose, by the exercise of the power of eminent domain, is conferred on the township trustees, subject to certain limitations therein prescribed, one of which, as before stated, is that lands shall not be “ so appropriated ” within two hundred yards of a dwelling-house. It is difficult to see how clearer, or more apt language, could have been employed to express that legislative intent. It could not have been more clearly and certainly expressed, if, instead of the words “ so appropriated,” the language in the last clause had been, “ appropriated as aforesaid,” or “ appropriated in the manner aforesaid,” or “ appropriated by proceedings in accordance with the provisions of law, regulating the appropriation of private property' by municipal corporations.” The phrase “so appropriated,” is equivalent to a repetition of the previously specified manner of appropriation, and excludes the meaning attempted to be given to it by the majority opinion, which seems to overlook, or disregards the effect of the qualifying word “ so,” in that phrase. This appears so obvious that it is sought to justify the conclusion of the majority of the court, that the phrase in question should be read as if it were written, “ nor shall any land be devoted to cemetery purposes lying within two hundred yards of a dwelling-house,” upon the supposition, that to give effect to the clear and unambiguous language of the section, makes the act inconsistent, unreasonable, and in conflict with its object 'and policy; while the language which the majority would substitute for that contained in the section, it is claimed, makes the statute harmonious, and conforms it to the intention of the legislature in enacting it.

Speculations may be indulged in, like those advanced in the majority opinion, concerning a supposed legislative intention which is not expressed in the statute; but they are mere conjectures which, in order to sustain them, or give them plausibility, require the radical change in the language of the section, already referred to. This is not construction, but reconstruction, which is the province of the law-making power, and not of the courts. It is undoubtedly true, that if the language of a statute is fairly susceptible of more than one interpretation, that construction will be given it which will best effectuate the intention and purpose of its enactment, as ascertained from the whole statute. But courts “ must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provision of a statute a construction not supported by its words, even although the consequences should be to defeat the object of the act.” Smith on Statutory Construction, sec. 714. “ Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.” Sedgwick on Statutory and Constitutional Law, 195. Story, J., in Gardner v. Collins, 2 Peters R. 93, states the rule which should guide in the construction of statutes as follows:

“ What the legislative intent was, can be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words. The spirit of the act must be extracted from the words of the act, and not from conjectui’e.”

In the Last Will of Hathaway, 4 Ohio St. 385, it is said, “ a court is not allowed to make an interpretation contrary to the plain and express letter of the law.” And this court held, in Woodbury v. Berry, 18 Ohio St., 456, that “ Where the words of a statute are plain, explicit and unequivocal, a court is not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact.”

The argument in support of the conclusion arrived at by the majority opinion is, that it was the purpose of the act to prohibit the location of a cemetery nearer to a dwelling-house than two hundred yards, because the last clause of the section prohibits the trustees from condemning property for such purpose, which lies within that distance of such a house, which, it is contended, is inconsistent with the power to acquire lands for a cemetery that are within two hundred yards of a dwelling, when the trustees are acting under their general authority, conferred by the first clause of the section, to accept a conveyance of, or purchase such land as they deem necessary and proper for such purpose. The argument admits that the appropriation referred to in the last clause, is an appropriation by condemnation proceedings; and that meaning is relied on to raise the supposed inconsistency in the statute; and then, the inconsistency, so raised, is used to show that the language of that clause should not receive that, but an entirely different meaning. But, if because the trustees are prohibited from condemning lands within the specified distance of a dwelling, they are also prohibited from locating a cemetery within that distance, it must follow, that since they are authorized to condemn immediately outside of such limit, they are also authorized to locate a cemetery there ; and if so authorized, however injurious it may be, or become, to the owner of the dwelling, or its occupants, neither would have any remedy to prevent it. It may occur, that owing to the condition and location of the land used for cemetery purposes, and that of the dwelling, the cemetery, though more than two hundred yards from the house, would produce great injury to the owner, while a situation might easily be selected which, though within less than the distance named of the house, would cause no damage or injury whatever. Under the construction given the clause, to prevent the act which causes no injury, the owner of the dwelling may have an injunction ; but to prevent the one which does him real injury, he may have none. The truth is, the section does not attempt to prescribe where the trustees may, or may not locate a cemetery within their township, or control their action in that respect, when acting under the first clause, but it does place limitations upon their power to condemn property for cemetery purposes, by legal proceedings, when acting under the subsequent clauses; neither of which clauses makes it unlawful for them to acquire by purchase or donation, land for such purpose, though a dwelling-house may be within two hundred yards of it.

Regarding the clause in question as simply a limitation on the exercise by the trustees of the power of eminent domain, and allowing the language to have effect according to its plain terms and import, protection from actual injury will be fully afforded the owners of property lying adjacent to lands selected for cemetery purposes. In the case before us, the circuit court heard the evidence, and found, that in view of the condition and location of the land which the defendants in error had obtained for the cemetery, and the location of the house of the plaintiff in error with respect to it, no injury could result to the plaintiff from the location of the cemetery as made; and to that finding he took no exception, and makes no complaint conceiming it, here; so that, the judgment of this court, reversing that of the circuit court, amounts to this; that the plaintiff in error, though sustaining no injury whatever, may by injunction prevent the use of the cemetery, located by the defendants in error, merely because some one of its boundary lines is, at some point, nearer than two hundred yards to the dwelling on his land; and he may do this, not because such use is a violation of the terms of the statute, but of a supposed legislative intention not expressed.  