Hamilton Common Pleas.

unknown heirs of the donor of the property to the city of Cincinnati.

There are two provisions of R. S. 3283a in controversy in this case. The first is in the language following:

"Proceedings for such appropriation shall be conducted in the manner provided in Title II, Chap. 8, pt. 3, of the Revised Statutes, so far as the same may be applicable thereto."

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This section then by reference and adoption, re-enacts so much of Title II, Chap. 8, pt. 3, Revised Statutes, as may be applicable to the appropriation of this property. R. S. 6415 and 6420 (Gen. Code 11039, 11046) are a part of and within the chapter to which reference is made. They read as follows: 'Appropriations can only be made when the corporation is unable to agree with the owner, or his guardian or trustee, as to the compensation to be paid for the property, or easement or interest therein, sought to be appropriated, or when the owner is incapable of contracting in person or by agent, and has no guardian or trustee, or is unknown, or his residence is beyond the state, or unknown."

"On the day named in any summons first served, or publication first completed, the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation. Upon these questions the burden of proof shall be upon the corporation, and any interested person shall be heard."

The record in this case further discloses that the railroad company did in part proceed under both of the above named sections of the statutes. Its action was filed in the probate court. It served the unknown heirs of the donor of the property in question by publication as therein provided. It then proceeded under R. S. 6420 and offered evidence to the satisfaction of the court below that it was an existing corporation and had a right to make the appropriation.

Was it the intention of the legislature to adopt only parts of the sections referred to? It is the law that where one statute adopts the particular provision of another by a specific de

Railway v. Cincinnati.

scriptive reference to the statute or provision adopted, the effect is the same as though the statute or the provisions adopted had been incorporated bodily into the adopted statute. One part of a statute can not be allowed to defeat another, if by any reasonable construction the two can be made to stand together. Southerland, Stat. Constr. Sec. 405.

Therefore, R. S. 3283a stands as though R. S. 6415 and 6420 had been rewritten therein, and it is the duty of the court to so construe these sections of the statutes, if it can be done, as to give each its full force and effect.

The word here to be construed is "proceeding, or procedure." Does this word limit the operation of R. S. 6415 and 6420, so that but part thereof are applicable to this act?

"The word procedure both in its popular use and technical application has a definite meaning which we can not alter or enlarge. It means in all cases, the performance of the act as wholly distinct from any consideration of the abstract right. A procedure in a civil action is an act necessary to be done in order to obtain a given end. It is a prescribed mode of action to carry into effect a legal right, and so far from involving any consideration or determination of the right, presupposes its existence. The procedure follows the right." McGee, Ex parte, 33 Or. 164 [54 Pac. Rep. 1091].

The legal right, the right to appropriate this class of property, is expressly granted by R. S. 3283a. The procedure provided by R. S. 6420 is necessary to give effect to the legal right prescribed by the granting statute.

R. S. 3283a is a grant of additional power to railroad companies. It confers a legal right that did not exist prior to its enactment. This section not only confers the legal right to appropriate this class of property, but it specifically provides what procedure is necessary in case it is appropriated. That is, it specifies the forum, limiting the jurisdiction to the probate court, provides a method of bringing necessary parties into court, and makes a determination of certain questions, conditions precedent to the company's right to make the appropriation. In other words, the exercise of the right is predicated

Hamilton Common Pleas.

upon a compliance at least with some of the provisions of R. S. 6420. Does it mean all or only a part of same?

But that is not all. R. S. 3283a further provides that before an appropriation may be made, there must be submitted to council of the municipality plans of the proposed structure, showing the manner, character and location of the supports, etc.; and no right to appropriate shall accrue until after said company and the council shall have agreed upon the manner, terms and conditions, etc.

If the rule for construing statutes is that one part of the statutes can not be allowed to defeat another, if by any reasonable construction the two may be made to stand together, the conclusion is that R. S. 3283a imposes upon railroad companies seeking to appropriate this class of public property, additional burdens to those provided in R. S. 6420. It must comply with all the provisions of R. S. 6420, and it must comply with the provisions of the statute granting the right to make the appropriation. This must be the true construction of the statute in question, in view of the fact that the property sought to be appropriated is already devoted to a public use. It does not seem reasonable that the legislature intended to require of the ex-appropriator in this class of property, fewer restrictions than it did in appropriating private property and other classes of public property.

The question of the validity of the ordinance of the city council was argued at length on both sides, and if any confusion has arisen in the case, it is due to the language of R. S. 3283a. It is:

"But before any appropriation may be made hereunder there must be submitted to the council of the municipality general plans of the proposed structure, showing the manner, character and location of all supports, any part of which will be upon such public grounds, landing, or wharf and showing the vertical and longitudinal clearance between the supports; and no right to appropriate shall accrue to the railroad company until after said company and the council shall have agreed upon the manner, terms and conditions," etc.

Railway v. Cincinnati.

This language follows the words adopting and incorporating the sections of the statute above referred to. It is part of the same sentence. The words are connected to the main part of the sentence by the conjunction "but." That word connects phrases and clauses of unequal rank. All that follows is subordinate to and dependent upon the principal part of the

sentence.

This subordinate clause contains two provisions of equal rank. Both the punctuation and the words used clearly indicate this to be the intention of the legislature. The filing of the plans and their approval by council showing the proposed structure is one requirement imposed by the legislature, and an agreement by council and the railroad company upon manner, terms and conditions upon which the property shall be used and occupied is another. The language in connection with the words manner, terms and conditions is, "no right to appropriate shall accrue," etc.

Webster defines the word accrue, as to come to by way of increase; to arise or spring as a growth or result. Accrue as here used means that in addition to other requirements no right to appropriate shall be derived from any or all of the other provisions of the law until after the manner, terms and conditions upon which the property shall be used and occupied shall have been agreed upon, etc.

It is the law that when a discretion is vested in any officer, board or body, and that officer, board or body exercises the discretion so vested, that that act is final and a court can not substitute its judgment for the judgment of the body in which the power is so vested, as in this case in the council, for the discretion of the council. But the council must act and come to an agreement with the company as to the manner, terms and conditions of its proposed occupancy before the company acquire or be possessed of the right to appropriate. In the case at bar, the ordinance has to do with that part of the statute relating to the structure and does not provide for any terms and conditions upon which the company may occupy as the statute

Hamilton Common Pleas.

requires, before the company can appropriate the property, therefore council has not exercised the discretion vested in it. "Manner in contemplation of the statute, means method or mode, the way the tracks are laid. Terms, the boundary, limit, the extent of the grant. Conditions means stipulations, precedent, inducement to the grant." Cleveland, C. C. & St. L. Ry. v. Cincinnati, Go. 278.

If the case cited correctly defines the words used in this statute, the ordinance is void, as there is no mention of any terms in connection with, or limit to the grant, neither does it provide any condition precedent, limitation or stipulations in connection with the grant.

The language of the statute is very broad. It vests in council a discretion, and at the same time makes it mandatory on council, as a condition precedent to its authority to do certain things, i. e., there must be an agreement between council and the railroad company.

The law contemplates that the city and its citizens have a valuable interest in the public landing. The city holds the title to the property, and R. S. 3283a authorizes a transfer of that title, the kind and amount of consideration that will compensate the city for the use of the land by the railroad company is left exclusively to the council. Council may demand a gross sum of money, or an annual rental or both. It may also require that, on the happening of any contingency named in the contract, the railroad company raise, lower, shift or entirely remove its tracks from the public landing. The city may make any demand as a condition or consideration of the grant. The railroad company is under no obligation to agree to the city's demands. The only penalty imposed on a failure to agree is that the railroad company can neither occupy nor condemn under the law of eminent domain, the right to use the property until after it shall have agreed with the city on such terms and conditions as the city may impose.

It is also claimed that the ordinance is invalid in that it contains two distinct subjects of legislation. Referring again to the record, it is not disputed that the eastern boundary of the public landing is sixty-seven feet west of the eastern boundary