#### The Extension of the Lower River Road Company *v.*The Incorporated Village of Riverside.

A company incorporated for the sole purpose of managing a turnpike road constructed by the commissioners of Hamilton county under the special act of March 22, I860, for the improvement of the extension of the Lower River road, and collecting tolls thereon to be applied only to the payment of debts contracted by said commissioners in the construction of the improvement, and to the expense of keeping the road -in repair, is not prohibited by the *proviso*in section 34 of the corporation act of May 1, 1852, from, keeping up a tollgate and collecting tolls within the , limits of an incorporated village.

*659Motion for leave to file a petition in error to the District Court of Hamilton county.

The original action was prosecuted by tbe defendant in error against tbe plaintiff in error to restrain tbe keeping of a toll-gate, and tbe collecting of tolls witbin tbe corporate limits of tbe village, or witbin eighty rods of such limits. On appeal from tbe Court of Common Pleas to tbe District Court, a restraining order was made by tbe appellate court, which it is now sought to reverse.

*Aaron A.*Ferris, for plaintiff' in error:

I. Section 34 of tbe act of May 1, 1852 (S. & C. 295), -does not apply to cases like tbe one at bar’ but has reference to turnpikes to be constructed through towns, etc., already ineoporated at tbe time of laying out a turnpike road, and not to cases where tbe turnpike has been already constructed. Tbe section is directory in its meaning.

It would be unreasonable for tbe legislature to say that a village or city might take upon itself tbe form of a municipality, and, by so doing, swallow up tbe franchises and property of a corporation prior in existence. It would be contrary to tbe whole spirit and tbe analogies of tbe law to infer that the legislature intended to say that vested rights, property, and franchises might be taken away by a municipal corporation without first making compensation therefor.

But tbe legislature, it would seem, m order to guard against any such construction of this 34th section as that claimed by tbe village, passed a law April 15, 1857, entitled “ an act supplementary to the ‘ act to provide for the creation and regulation of incorporated companies in tbe State of Ohio,’ passed May 1, 1852.” S. & C. 339.

It was enacted by tbe law authorizing tbe surrender of this road to its bondholders and creditors that tbe surrenderees might “ become incorporated under tbe provisions of so much of tbe act of May 1, 1852, entitled ‘ an act to provide for tbe creation and regulation of incorporated *660companies/ etc., *and the amendments thereof,*as relate to turnpike and plank-road companies/’ etc. The supplemental act of April 15,1857, which says that, in cases like the one at bar, the municipal authorities “shall condemn” turnpikes in the same manner as private property, was an “ amendment ” to the general incorporation act. The plaintiff in error came into being as a corporation May 28,, 1859, not simply under section 84 of the general act, but under the general act and its amendments, including the' act of April 15,1857. Hence, the rights of the turnpike-company, as a corporate body, *vested*under and by virtue of the general law and this amendment. There can be no-doubt, then, as to what rights the legislature intended should belong to a turnpike company in Ohio on the 15th day of April, 1857, and when the plaintiff in error was incorporated. “ And the said city, town, or village shall-cause the same to be condemned and appropriated for use-as such, according to the laws regulating the appropriation and condemnation of private property for similar uses.”

Section 600 of the municipal code, passed May 7,1869,, which reads as follows, “ The right of any company to-take toll at any toll-gate established in the corporation shall not be impaired by anything in this act contained,”' shows what the intention of the legislature was upon this-subject.

*Smith, Crawford &; Young,*also for plaintiff in error :

*We*submit that the words “ shall be authorized,” in section 34 of the act of May 1,1852, must be understood as-repeated before the words “ receive tolls.” By such understanding, we have the erection and the keeping up of tollgates, and the reception of tolls, all referable to the original-authorization of the county commissioners provided for in the next succeeding section.

' These two sections construed together show that it is the-original authorization that is spoken of, or rather referred to, in the proviso of section 34, and that subsequent changes in the limits of a city or village can not affect it.

*661These two sections, 34 and 35, are so intimately connected that they ought to he read as one; and that one prescribing how the road shall be constructed, how the company shall be authorized to erect gates, and where the gates shall be originally placed. And by understanding .the repetition of the words *“*shall be authorized,” as above indicated, the meaning is plain.

Section 600 of the municipal code (66 Ohio L.) shows the legislative construction of the proviso of said section 34.

The only property right of a turnpike company in its pike is its franchise to take tolls; and if a city or village shall extend its limits so as to take in the whole of a turnpike, then the construction of the law which the plaintiffs below obtained in the District Court would deprive the turnpike company of all its property — of its entire franchise — and the latter clause of section 510 of the municipal code would be meaningless.

*Jordan, Jordan Williams,*also for the plaintiff in error.

*JD. Them Wright,*for defendant in error:

The only question is, could Riverside enjoin the collection of tolls, or compel the removal of the gate, under the law of May 1,1852 ? 1 S. & C. 295.

That law provides against two things: 1. They shall not •“ erect ” gates; and 2. The turnpike shall not “ keep up ” any gate “ or receive tolls.”

There is no need for these words “ keep up,” except in cases where the right to keep the gate is ended by the incorporation of a village. The phrase means that that which has been heretofore done, shall no longer be done.

If the words “ keep up ” do'not apply to just such a case ;as this, to what do they apply?

Suppose a turnpike is incorporated near an existing village. It could not take a street of that village as part of its turnpike, put a gate thereon, and collect tolls. It could not erect a gate within the municipal limits, and surely it could not “ keep up ” one which had never been erected. As it *662could not “ erect ” a gate in an existing village, the words “ keep up ” can not apply to villages in being before the turnpike. They must therefore apply to villages created after the turnpike. *Regina*v. *Cottle, 4*Eng. L. & E. 474.

So with the power to “ receive tolls.” If Riverside is a *“*village ” the turnpike can not “ receive tolls ” within its limits, without doing away with the force of words. 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, etc. *Lorain Plank-road Co.*v. *Cotten, 12*Ohio St. 270.

Section 84, before referred to, has no intimation on the-subject of condemnation. But no question of condemnation can arise in this case. The village of Riverside has. taken no portion of this road, and deprived the turnpike of no right, franchise, or interest whatever, nor has the village-removed the gate; it is the act and operation of law that does that. Any citizen of Riverside who had to pass the-gate, could have maintained this petition for an injunction. *Adams*v. *Beach,*6 Hill, 271; 21 Ohio St. 256.

No rights vested under the law of April 15, 1857, which may not be taken away. Constitution, art. 13, see. 2.

Section 600 of the municipal code has no application to this case. "What we claim is, that by the very law of the existence of this turnpike, it has no right to take toll in this village. If this be so, the municipal code gives nothing-

MoIlvainb, C. J.

Section 34 of the act passed May 1, 1852, entitled “ an act to provide for the creation and regulation of incorpoi-ated companies in the State of Ohio,” contains the following provision: “ Provided, that no company or association of individuals, which has been or may hereafter be incorporated for the purpose of making any turnpike or plank-road, shall be authorized to erect or keep up any toll-gate or receive tolls within the corporate limits of any incorporated city, town, or village, or within eighty rods of such limits.”

The village of Riverside, situate in Hamilton county, was *663incorporated as such in the year 1867. Previous to the incorporation of the village, a turnpike road, known as the extension of the Lower River road, had been located and constructed through the territory which was afterward embraced within the corporate limits of the village, and a tollgate erected at a point thereon within the present limits of the village. This toll-gate was kept up and tolls received thereat, from the completion of the turnpike in 1851, to the date of the decree in the court below — to wit, June, 1875.

Upon the record before us two questions arise: 1. Can the proviso in section 84 be enforced by the defendant in error against the plaintiff in error ? 2. Does this proviso apply at all to the extension of the Lower River road company?

1. It is contended, on behalf of the company, that this provision was not intended to apply in a case where a-turnpike road has been or may be constructed, and a toll-gate erected thereon at a point outside and eighty rods or more from the limits of an incorporated city, town, or village, and where, by a subsequent incorporation of a city, town, or village, or by an extension of its corporate limits, the toll-gate so erected is brought within such limits or prohibited distance. And it is also contended that if this provision was intended to be applied in such case, such application would be an unwarranted infringement upon the rights of private property, and therefore repugnant to the constitution of the state.

Without stopping here to discuss these propositions, it must suffice to say that neither of them can be maintained. The former is entirely unsound, and the latter, to say the least, is stated too broadly.

2. In view, however, of the history of this turnpike road, and of the constitution of the plaintiff in error, we think it quite clear that the proviso in said section 34 has no application in the case.

This turnpike road was originally a county road, known as the extension of the Lower River road, which the commissioners of Hamilton county converted into a turnpike in *664the year 1851, hy improving and macadamizing as authorized by a special act of the legislature, passed March 22, 1850. By the provisions of this act the commissioners were authorized to improve, put in order, and keep in thorough repair, as a good macadamized road, the said extension of the Lower River road; and to that end, they were authorized to borrow any sum of money not exceeding two thousand dollars for each mile of the road improved, and issue bonds therefor for any time not exceeding five years, at a rate of interest not exceeding six per cent, per annum, pledging the funds arising from tolls collected on the road to the payment of principal and interest. It was provided, however, that the county of Hamilton should in no event, or under any pretense, be responsible for the payment of principal or interest ■of the bonds. The commissioners were also authorized, so soon as the road might be fit for use, to erect one or more toll-gates on the road at such point or points *as might be deemed advisable by them,*and to collect tolls from all persons traveling on the road, *or any part of the same,*at the rates therein specified. It was also made the duty of the commissioners to appoint agents to superintend the road and gate-keepers to collect tolls ; and of the auditor of the ■county to keep a separate account of the transactions and business of the road; and of the treasurer of the county to •receive the tolls collected on the road, and pay them out on ■the order of the auditor in discharge of the indebtedness of the road. And it was also provided that as soon as the liabilities on account of the road might he discharged, the commissioners should reduce the tolls so as to collect only .a sufficient amount to pay the actual cost of keeping the road in repair.

Upon the completion of the road, a toll-gate was erected by the commissioners at a point within the present limits of the village of Riverside, which has been maintained and tolls collected thereat ever since.

Under the provisions of this statute the commissioners borrowed money and issued bonds therefor, to the amount of $11,000 and upward, pledging irrevocably the tolls of *665the road to the payment of principal and interest. These ■bonds are still outstanding and unpaid.

The management of the road was continued under the control of the commissioners until the year 1859.

On the 15th of April, 1857, the general assembly passed an act authorizing the commissioners of Hamilton county, on certain conditions, to surrender the Lower River road, and the extension thereof, to the bondholders and creditors, and on the 25th of February, 1859, this act was so amended as to authorize the surrender of the extension alone to its creditors and bondholders, provided a majority in amount would assent thereto. In pursuance of these acts, the extension of the Lower River road was surrendered to its bondholders and creditors upon the conditions prescribed. The parties to whom the surrender was thus made were authorized by the act to become incorporated under the provisions of the act of May 1,1852, above referred to, subject to be regulated by the provisions of this act — to wit, the act of April 15, 1857. One of the provisions of this act was, that each bondholder or creditor should be entitled to one share of stock for each fifty dollars in amount of his bond or credit. ("We do not understand, however, that the bonds or credits of the road were to be canceled or merged in the stock. The bond or credit remained intact, whether the bondholder or creditor did or did not become a corporator.) After the surrender, a majority of the bondholders (if it were competent under this species of legislation for them to do so) became a corporation, by the name of “ The Extension . of the Lower River Road Company ” — to wit, the plaintiff in error.

This statute further provided that a company so formed should not at any time pay a greater interest or make a larger dividend than six per cent, per annum upon their indebtedness or the stock of the company; and that after keeping the road in repair and making such improvements upon the same as the company might think necessary and proper, and the payments of the debts and stock with six per cent, interest thereon, the tolls upon the road should be *666reduced to such rates as will he sufficient to keep the road in repair; provided, that the commissioners of the county should at all times have power to prevent any improvements-that they might think unnecessary or improper. And it also provided, that nothing in the act should be construed to make said commissioners or said county liable for said bonds, or contracts for the improvement of the road, or to-the creditors thereof.

Such is the constitution of the plaintiff in error. We-think it is not an incorporated turnpike company within the meaning of the proviso in said section 34. Most certainly it is not “ a company or association of individuals- . . . incorporated for the purpose of making a turnpike or plank-road.” While we may admit that the language of this proviso should not be taken in its strict or literal meaning, still we think the intention of the legislature would be' departed from, if the statute were held to embrace corporations other than those who make or otherwise become possessed of roads as proprietors. If the right to control this road had remained in the commissioners exclusively, it could not be successfully contended that the-power expressly confei’red «upon them, “ to erect one or more toll-gates on the road at such point or points as may be deemed advisable by them, and collect tolls from all persons traveling on said road or any part of the same,” was-modified by the restriction imposed upon incorporated turnpike companies by this proviso. It appears to us that, the plaintiff in error, in the management of this road, stands-in place of the commissioners, and is a mere agent or trustee controlling the road for the benefit of the bondholders and creditors, and for the general public, without having any property in the road itself, or any beneficial interest in the tolls; therefore, the keeping of a toll-gate on this road and collecting of tolls thereon, within the corporate limits of the defendant in error, by the plaintiff in error, is not a violation of this proviso in section 34 of the act of May 1, 1852 *Motion granted, and judgment reversed.*

Welch, White, Rex, and Gilmore, JJ., concurred.