#### Cooley et al. *v.*The State ex rel. Village of Bay.

*Division of township*— Section *1877, Revised Statutes*— Township *erected or boundary changed*— New *township 'not entitled to portion of original township’s money, when.*

In case of the division of a township and the establishment of a new township, the new township, under section 1377, Revised Statutes, is entitled not only to its portion of the money in the treasury of the original township, at the time the nev township is established, but also to money thereafter in the treasury, to the extent the same was collected from the territory established into the new township.

(No. 9435

Decided May 22, 1906.)

Error to the Circuit Court of Cuyahoga county.

The village of Bay is and, in September, 1903, was a municipal corporation in Dover township, Cuyahoga county, and at that time, by ordinance of its council, petitioned the county commissioners to change the limits of the township so as to establish a new township out of a portion of it by the name of the township of Bay, with.its boundaries coterminous with those of the village.

The township of Bay was so established by the commissioners on November 4, 1903.

In May, 1903, the trustees of Dover township had made a levy of taxes on all of the taxable property in the then limits of Dover township.

In March, 1904, the county treasurer paid over to the treasurer of Dover township the money received. on collection of the first half of said levy. Thereafter the relator demanded of the trustees and the treasurer of Dover township that they apportion the money so received to Dover township and the village of Bay in the proportions it had been collected from the taxable property in their respective *253limits, and, upon refusal, a petition in mandamus was filed in the court of common pleas to compel such apportionment, and also payment, by the treasurer of the township of Dover.

An alternative writ of mandamus was allowed.. The defendants filed a general demurrer, which was overruled, and they not 'desiring to plead further, and no sufficient cause being shown to the contrary, the peremptory writ prayed for was allowed. On error the circuit court affirmed and error is prosecuted in this court.

*Messrs. Stage, Armstrong & Cannon,*for plaintiffs in error,

cited and commented upon the following authorities:

Bouvier’s definition of “funds;” Black’s Law Dictionary definition of “funds;” Abbott’s Law Dictionary definition of “treasury;” Century Dictionary definition of “treasury;” 14 Am. *&*Eng. Ency. Law (2 ed.), 563; *Davis*v. *Gelhaus,*44 Ohio St., 69; *Fulton County*v. *Commissioners,*2 Ohio St., 508; Beach on Public Corporations, sec. 457; *Reeves County*v. *Pecos County,*69 Tex., 177; *Hampshire*v. *Franklin,*16 Mass., 86; *Board of Education*v. *Board of Education,*3 Circ. Dec., 603; 6 C. C. R., 597; secs. 816, 1377, 1513, 1514, 1532, 1536-205 (sec. 45, Municipal Code), 2834b and 3946, Rev. Stat.

*Mr. William O. Mathews,*for defendant in.error,

cited and commented upon the following authorities:

*Miller*v. *Bradish,*69 Ia., 278; *United States*v. *Greve,*65 Fed. Rep., 490; *Marrow*v. *Marrow,*45 N. C., 148; *Easton*v. *Easton,*29 N. Y., 98; *In re Tatum,*70 N. Y. Supp., 635; *Galveston, H. & S. A. Ry. Co.*v. *State,*77 Tex., 419; *Lane*v. *Magdeburg,**25451 N. W. Rep., 562; *Terrill*v. *Auchauer,*14 Ohio St., 87; *Moore*v. *Given,*39 Ohio St., 661; *Corwin*v. *Benham,*2 Ohio St., 43; *McCormick*v. *Alexander,*2 Ohio, 74; *Township*v. *Township,*47 Ia., 183; Webster’s Dictionary definition of “revise;” *Vinsant*v. *Knox,*27 Ark, 272; 24 Am. & Eng. Ency. Law (2 ed.), 938; *Attorney General*v. *Parsell,*100 Mich., 173; *Cortesy*v. *Territory,*32 Pac. Rep., 505; *Hamilton*v. *Rathbone,*175 U. S., 414; *Commissioners of Fulton County*v. *Commissioners of Lucas County, 2*Ohio St., 508; *Gilford*v. *Munsey,*68 N. H., 609; *Ramsey*v. *Cox,*28 Ark, 368; *Baldwin*v. *Howell,*45 N. J. Eq., 533; secs. 1377, 3946a, 7437, 7438 and 7439, Rev. Stat.

Summers, J.

Section 3 of the municipal code (section 1536-3, Revised Statutes, Bates’ 5th edition) provides that when the corporate limits of a village become identical with those of a township all township officers, excepting justices of the peace and constables, shall be abolished and the duties thereof thereafter be performed by the officers of the village, and that all rights, interests or claims in favor of or against the township may be enforced by or against the corporation. If mandamus is the remedy appropriate to the relief sought in the present proceeding then it is properly instituted by the village and since it is not questioned it is not considered.

The question presented involves the interpretation of section 1377, Revised Statutes, which provides: “And in case of division * ** **of any township, the funds in the treasury of such township shall be apportioned * * * to the new township * * * established, to the extent the *255same were collected from the territory * ***established into a new township. ’ ’

The cash in the treasury on November 4, 1903, at the time the new township was established, was divided, and the village now claims its proportion of the cash now in the treasury from the December, 1903, collection of taxes, levied in May, 1903. The contention on the part of the village, briefly stated, is that the word “funds” does not mean money, merely cash, but all the existing means or resources of the township for the° payment of its debts and the carrying on of its government. That a levy can be made only yearly, that nearly a year will pass* after a levy before the money will be available and that thus nearly two years might pass after the establishment of the new township before it would be able to exercise its functions and that such a result could, not have been intended by the legislature. On ’the part of the township the contention is that the word * ‘ funds ’ ’ means money and, conceding that the legislature did not intend that the new township should wait two years before exercising its powers, that the new township, in the absence of statutory provision therefor, is entitled to no part of the property or resources of the old, and that if any such consequences follow it is a *casus improvisus*on the part of the legislature that cannot be cured by judicial interpretation, since the words of the statute clearly do not provide for a division of funds arising from taxes levied but not collected at the time the new township is established, and that this is made certain by reference to the statute as it read before the revision of the statutes in 1880, and finds support in the fact that section 3946a, Revised Statutes, relating to newly created school districts, *256provides for a division not only of money in the treasury but also of the levy or levies, and that in 97 Ohio Laws, 333, it is provided that when territory is transferred from one school district to another there shall be a proper division of funds in the treasury or in process of collection; and that at the last session of the legislature it was enacted by section 1565a, Revised Statutes, (98 O. L., 129), that a proper division shall be made of the funds for towhship purposes in the treasury or in process of collection.

The part of section 1377 under consideration was first enacted as section 2 of an act passed February 20, 1865 (62 O. L., 18), and read as follows: “The funds in any township treasury at the time of said division or partition shall be apportioned to the township to which the same may be attached in proportion to the amount thereof collected from such attached portion.”

If the word “funds” as used in section 2 means money, then perhaps the new township would not under its provisions be entitled to any of the money thereafter coming into the treasury, but assuming that it does mean money, and that the same meaning must be given to it in section 1377, it does not follow that the provision in section 1377 must receive the same interpretation as section *2.*Section 2 in the revision of the statutes of 1880 was carried into that revision as the provision of section 1377 already quoted. The omission in the revision of the words “at the time of said division or partition” indicates an intentional change in the statute. Omitting them, the provision is, that the funds in the treasury of the township, to the extent the same were col*257lected from the territory established into a new township, shall be apportioned to the new township.

Prom obvious considerations of convenience the means of collecting the funds into the treasury are not changed, but the funds in the treasury of the old township at any time after the establishment of the new township to the extent they were collected from the territory of the new aje to be apportioned to the new. The funds in the treasury are to be divided. They were not in the treasury until they were collected, and the past tense has reference to the existence of the fund and not to the time of the establishment of the new township. The meaning of the section is made apparent by the transposition of one clause, and may be read, “and in case of division * * * of any township, the funds in the treasury of such township to the extent the same were collected from the territory * * * established into a new township, shall be apportioned . * * * to the new township * * * established.”

The other sections referred to are not *in pari materia,*and the fact that in them provision is made for a division of the levy, or of money in process of collection, is not .persuasive that the absence of such provision in section 1377 necessarily indicates a different legislative intent, but only that some one has grown wise.

To rule that every amendment must be interpreted to add substance as well as light to a statute would discourage clarification for then it could be done only at the expense of what originally was intended. The judgment is

*Affirmed.*

Síiatjck, C. J., Price and Davis, JJ., concur.